Wills – Validity – Cowderoy v Cranfield [2011] EWHC 1616

 In Wills

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This case provides a useful reminder of how essential contemporaneous file and attendance notes are in examining the validity of a Will.

The facts

Mrs Helen Imrie Blofield (the deceased) died on 19 October 2008 having made her Will on 13 November 2006.  She appointed Lionel Cranfield (Lionel) as her sole executor and left him her entire estate.

The deceased’s granddaughter, Mrs Leigh Cowderoy (Leigh) disputed the Will and sought revocation of the Grant issued to Lionel.  If the Will failed Leigh would be the deceased’s sole beneficiary under the intestacy rules.

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Leigh disputed the validity of the Will on three grounds:

  1. The deceased did not have testamentary capacity
  2. The deceased did not know and approve the Will
  3. The Will was procured under the undue influence of Lionel

Background – The deceased

  1. Mrs Blofield was in her eighties when she made her Will.  She was a widow at the time and had only one child, Richard, who in turn had only one legitimate child, Leigh.  Richard sadly died intestate on 5 August 2006 and all his estate passed to Leigh.  He was a chronic alcoholic and at the end of his life lived at his mother’s home following his divorce in 1974.  He had many problems and fathered allegedly several other children each of whom were taken into care.
  2. The deceased lived in Colchester for most of her life whereas Leigh lived first with her mother in Exeter and then she lived in London for over 14 years.  In 2004 she went to work in Dubai and returned to Exeter in 2009.  She hardly ever contacted her grandmother or visited her.
  3. Lionel bought the house opposite the deceased in 2001.  Between 2002 and 2004 he was there maybe two nights per week; the rest of the time he stayed at his girlfriend’s house.  In 2004 he sold the property and moved elsewhere in Colchester.
  4. His friend Philip was a drinking companion of Richard.  Philip used to lodge at Lionel’s property and spent most of his time drinking with Richard at the deceased’s house.  Between 2001 and 2004 Lionel would see the deceased once or twice a week when he was looking for Philip.  In the period 2004 to 2006 he would see her less frequently, possibly once a fortnight and then from May 2006 his visits were much more frequent as he drove Philip to the deceased’s house 3 or 4 times per week as by then Richard was dying.  Between August and November 2006 he saw the deceased every day.

Preparation of the Will

When Richard died the deceased thought she would inherit his estate but discovered it would all pass to Leigh.

The deceased was upset about Leigh inheriting Richard’s estate and made it clear to Lionel she would not want Leigh inheriting her own estate, in fact she wanted Lionel and initially Philip to benefit but later decided that Philip would simply spend the money on drink.

On 19 October 2006 the deceased asked Lionel to make an appointment for her to make a Will with Birkett Long.  He arranged for the firm’s representative to call the following day.

Mrs Harper, a legal executive, and a trainee solicitor, attended on the deceased.  Lionel was present too at the deceased’s request.

Mrs Harper quizzed the deceased about her Will instructions.  She ascertained and recorded in an attendance note that:

  1. The deceased did not wish to make any specific legacies or any directions as to the disposal of her body.
  2. She wanted Lionel appointed as sole executor and sole beneficiary.
  3. She did have a relative, Leigh, but she did not want her to inherit anything because she had inherited £60,000 from Richard’s estate and she had little or no contact with her.
  4. In the event that Lionel should predecease her and to prevent Leigh inheriting she wanted another friend, Philip, to benefit.
  5. Leigh might make a claim against the deceased’s estate under the Inheritance (Provision for Family & Dependents) Act 1975 which the deceased understood but thought she would be unlikely to succeed.
  6. A draft Will would be prepared and if satisfactory the lawyers would return and see the deceased on her own to ensure that these instructions where the deceased’s own wishes.
  7. An EPA was not required.

Mrs Harper and her trainee were concerned about the deceased’s frequent referral to Lionel throughout the meeting, her lack of clarity and her apparent inability to remember Lionel’s name (she would point to him) and some of the answers she gave at the start of the meeting to repeated questions at the end of the attendance.

Lionel’s evidence of the meeting was that he was embarrassed and uncomfortable to be there but was not asked to leave.  He felt the deceased was not well that day.

Mrs Harper discussed the deceased’s testamentary capacity with the supervising partner, Ms Read.  They also recognised the potential for allegations of undue influence and determined that ideally a doctor should be present to witness the Will and determine these issues.

On 25 October 2006 Mrs Harper made a variety of telephone calls to establish the name of the deceased’s doctor.  Lionel understood the prudence of involving him but the deceased did not want to provide the solicitor with the details for fear that the doctor might send her to hospital, which probably indicated that she felt she was failing in some way.

Lionel encouraged Mrs Harper to discuss the matter with the deceased.  As a result the deceased provided her doctor’s details.  It transpired that the details provided were incorrect – the doctor’s name given was previously the deceased’s doctor but he had retired; the telephone number was wrong and the address was incorrect.

Subsequently, on the same day, the deceased withdrew her instructions because of the requirement to involve her doctor.

The following day Mrs Harper rang the deceased again to be sure she had understood her request to withdraw her Will instructions and if so the reason.  The deceased apparently said Mrs Harper was not to act because ‘she was not her solicitor’.  She also confirmed she was worried about seeing a doctor.  Mrs Harper offered to see her again but this offer was declined.

Subsequently, Mrs Harper wrote to the deceased confirming the position and advising that if she died intestate her grandchildren would inherit in equal shares, unless they had been adopted.  She sent the bill for her services to Lionel, as he had requested it.

The deceased raised the subject of her Will with Lionel the day after she dis-instructed Mrs Harper.  She asked him to find another firm in Yellow Pages, which he did and he telephoned Mr Jones at Sparling, Benham & Brough.  Mr Jones, a probate and trust practitioner, arranged a home visit for 31 October 2006.

When he attended upon the deceased he concluded the completion of a questionnaire he had commenced before his attendance.  As he had requested on the telephone, the deceased produced her passport and a utility bill.  On the part of his instruction form which related to grandchildren he wrote – ‘You have one grandchild who lives in Dubai (not to benefit).  You never see her.’  He also recorded that the deceased owned her own home valued at approximately £150,000 and that the estimated value of her estate was below the NRB for IHT at the time.

Mr Jones was instructed to appoint Lionel as sole executor and to make him sole residuary beneficiary because he was a friend of Richard and the deceased’s ‘good friend’.  That if anything were to happen to Lionel then the deceased‘s other ‘good friend’ Philip was to inherit absolutely and not Leigh.

He too made a full attendance note along similar lines to that made by Mrs Harper save that Lionel was not present and he had no impression of marginal capacity.

A draft Will was posted to the deceased on 2 November 2006 in accordance with the instructions.  On 6 November Lionel telephoned Mr Jones to confirm the deceased’s satisfaction with the draft and an appointment was made for the Will to be signed.

Mr Jones and a legal secretary attended on the deceased.  He read over the Will to her and she nodded her agreement to it.  The Will was short and the process took no time at all.  He then summarised its terms and effect and asked her again if she was happy with it.  The deceased confirmed she was and it was signed in the presence of Mr Jones and the secretary who acted as witnesses.  She then handed Mr Jones an envelope containing cash to the exact amount of his bill.

Subsequently, Mr Jones sent the deceased a copy of the executed Will and confirmed the original had been placed in the firm’s strong-room.

In his evidence to the Judge, Mr Jones felt there was no need to obtain a medical report on capacity as the deceased was found by him to be absolutely clear and precise in giving her instructions.

Richard’s estate and Leigh’s claim

Leigh instructed Amanda Rainsford (Mrs Rainsford) of Stones to act for her in relation to Richard’s estate.  In this regard Mrs Rainsford had written to the deceased on 19 October 2006 asking for certain information but had not received a reply by 13 November.  Leigh sent her an email suggesting she rang the deceased as she was “in a confused state and taking various medications”.

Mrs Rainsford’s judgment as to finding the deceased ‘slightly confused’ when she rang her may have been coloured by Leigh’s statement.  Her attendance note of the conversation does not recount any particular confusion on the deceased’s part.

Mrs Rainsford wrote to Leigh on 23 November 2006.  This reported she had spoken to the deceased and one of Richard’s friends who had indicated that the deceased did not want social services involved despite becoming ‘more and more confused’.  She referred to Lionel as ‘Mr Dransfield’ and indicated that he was expecting the deceased to give him her property, a fact which Mrs Rainsford expressed disquiet over on the basis that he might be taking advantage of her confused state.  Given that Lionel denied speaking to her and Mrs Rainsford had been given Philip’s mobile phone number, the Judge decided it was more likely she had spoken to him, particularly as he had no knowledge of the contents of the Will.

On 25 November 2006 Leigh replied to Mrs Rainsford’s letter and said her mother was very close to the deceased and contacted her every two weeks.  She also suggested that by 11am every day, as a result of the medication and alcohol the deceased was generally inebriated.  She also said that any friends of her father were not to be trusted as he was a “ruthless, spiteful and devious man” and she would rather the deceased’s estate go to charity than have her grandmother tricked into giving it to her father’s friends.

Leigh’s mother did telephone the deceased and even asked the local police to call to check she was all right, which they did, and as a result the deceased and Leigh’s mother had no further communications as the deceased was angry that she had called the police.

Mrs Rainsford concluded the administration of Richard’s estate in January 2007 and advised Leigh that Stones had not been able to register a caution against the deceased’s property so if she was still concerned about potential financial abuse other steps could be taken.  Leigh chose not to take those steps at that time.

Medical evidence

The deceased’s GP advised that the practice routinely wrote an annual letter to housebound patients and as they had not received a response to their letters in 2005 and 2006 he arranged a visit in February 2007.  Dr Cheung spent approximately half an hour with the deceased reviewing her medical history and medication and taking her blood pressure.

His notes recorded that her son had died in August 2006; he was a heavy drinker.  She lived alone and had a granddaughter who lived in Dubai.  She saw carers daily and had a cat.  He noted that her memory was ‘OK’.  He gave evidence to the effect that if he had had any concerns about her capacity he would have acted differently but he did not.

As he noticed a cancerous skin growth on her forehead he visited again on 20 February to explain the referral for plastic surgery.  Although he made a note that she ‘seemed to get a bit confused’ he did not take any specific follow up action.  He said that he found her a chatty person freely able to communicate.

He explained in evidence the nature of the deceased’s medication and the adverse effects of taking nitrazepan for a long time which could, when taken in excess, alter mental function.  He pointed out that taking more or less than the recommended dose could result in confusion or lack of concentration.  She could appear dozy and these effects would be heightened if taken with alcohol.

There was a great deal of evidence as to the deceased’s medical condition after 2007, when she was hospitalised in 2008 and when she was later in residential care.

Lionel said her mental condition deteriorated in March or April 2007 as she found it harder to finish sentences and get words out.  She had a fall in January or February 2008 and then there was a marked deterioration in both her physical and mental health.

Dr Cheung confirmed that she was unkempt and unwell on his visit in January 2008 and on 15 April he found her significantly unwell and mentally incapable.  Despite her wishes he admitted her to hospital.  She subsequently died in residential care on 19 October 2008.

2 consultant psychiatrists gave expert evidence at the trial.  The Judge referred to their various reports and noted that whilst there was some agreement as to the causes of the deceased’s variable cognitive function (alcoholism and the medication given she was underweight) there was disagreement as to whether she had capacity on 13 November 2006 when she signed her Will with the expert representing Lionel saying she did and the expert for Leigh saying she did not.

The Judge accepted that the deceased’s cognitive impairment could vary significantly from day to day depending upon her consumption of alcohol in conjunction with her medication.  He also accepted that her difficulties with language at times was due to an inability to express herself rather than an inability to understand language.

Other evidence

Evidence was also provided by Lionel’s ex-wife, a social worker, who did see the deceased in 2006, to break the news of Richard’s death, to take her a Christmas dinner in 2007 and in hospital in 2008.  She found the deceased frail but able to understand when her son’s death was announced; rather vacant when she delivered the Christmas dinner and much worse when she saw her in hospital.

Terena Harris was an ex-partner of Lionel’s and was a hairdresser who saw customers in their own home.  Following Richard’s death Lionel asked her to call on the deceased to do her hair and nails, which she did between 2006 and 2008.  She described the deceased as chatty, able to tell good stories, read two newspapers a day (The Times and the Independent) and asked her lots of questions.  She commented that following Richard’s death Leigh “swooped in” and this made the deceased annoyed.

Ms Hallpike, Lionel’s partner from September 2007, made similar comments.  She also provided evidence of the work done to the house and for the deceased by Lionel and Philip to a standard approved by Social Services.

Social Services maintained detailed files from 2008 in which it was recorded that two friends of Richard were not appropriate befrienders and had conflicts of interest and may be motivated by financial gain.

In October 2008 Leigh had made contact with Social Services and was taking steps to apply to the Court of Protection in relation to the deceased.  Her half-sister, who had only seen the deceased when she was a child, even visited the property in 2008 when the deceased was in care to change the locks to prevent Lionel and Philip having access.

The Law

Testamentary capacity

  1. The Judge inevitably referred to the test for testamentary capacity laid down in Banks v Goodfellow and commented that the case also stated that freedom of testamentary disposition will sometimes produce the result that a testator makes a valid Will which is influenced by caprice or passion or the power of new ties.

He said, the ultimate question before the Court when assessing testamentary capacity is not whether the Will is a fair one; but if it is surprising, that may be material to the Court’s assessment of capacity (see Sharp v Adam [2006] WTLR 1059) and whether the deceased knew and approved the Will (see Gill v RSPCA [2010] EWCA 1430).

Undue influence

  1. The Judge referred to Lewison J’s summary of the law when applied to Will drafting in the case of Edwards v Edwards [2007] WTLR 1387:
  2. There is no presumption of undue influence in the case of a gift under a Will.
  3. Did undue influence result in the execution of the Will?
  4. The burden of proof lies with the person who asserts undue influence.  The facts have to be inconsistent with any other hypothesis.
  5. In this context undue influence means influence exercised either by coercion, in the sense that the testator’s Will must be overborne, or by fraud.
  6. Coercion is pressure that overpowers the volition without convincing the testator’s judgement.
  7. Physical and mental strength of the testator are relevant.
  8. Poisoning of the mind of the testator by casting dishonest aspersions on his character is fraud.
  9. The essence of fraud is that the person alleged to have been poisoning the Testator’s mind must either know the allegations are false or not care whether they are true or false.
  10. The questions is not whether the Will is fair but whether the person making it was a free agent.

The decision

The Judge concluded that the deceased had testamentary capacity both when she gave her final instructions and when she signed her last Will.  She had clearly understood the claims to which she ought to give effect and had concluded she could not benefit her granddaughter.

He felt that by leaving all her estate to Lionel and telling him so she was repaying him for all he had done in the past and at the same time ensuring his continued help.

He concluded that the deceased had good days and bad days principally because of the combined effect of medication and alcohol but that the 31 October and 13 November 2006 were ‘good’ days.

He also decided that she knew and approved the terms of the Will.

As to the allegation of undue influence, he found there was no arguable case that Lionel ever tried to persuade or otherwise influence the deceased to make a Will in his favour.

Practice points

  1. Both sets of lawyers made good, contemporaneous attendance notes which are essential.
  2. Practitioners should consider the impact of medication and alcohol on the ability of a client to give instructions, know and approve the contents of a Will and to appreciate all that needs to be understood in order to provide freely given, valid instructions.
  3. Please note the useful summary by Lewison J in Edwards of the nature of undue influence in testamentary cases.
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