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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ritchie & Ors v Joshlin & Ors [2009] EWHC 709 (Ch) (31 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/709.html Cite as: [2009] EWHC 709 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
LEEDS DISTRICT REGISTRY

		31 March 2009

1. Introduction
1. This is a probate claim. Mary Gray Ritchie ("Mary") died on 12^th November 2006 aged 88. Her estate is substantial and is valued at in excess of £2.5 million. The principal asset is Chapel Farm, Youlton North Yorkshire. By her will dated 7^th October 1998 Mary left the whole of her estate (save for £5,000 left to her local church) to the National Osteoporosis Society ("NOS"), a charity formed in 1986 working to raise awareness of osteoporosis.
2. Probate of her estate was granted to Mr Joslin and Mr Brock on 13^th February 2007. Mr Joslin and Mr Brock are both solicitors and partners in the firm of Sykes Lee and Brysdon. Mr Joslin was the solicitor who was instrumental in taking instructions for and in the execution of the will.
3. The Claimants are the four children of Mary and her husband Francis Richie ("Francis") who died on 2^nd July 1992 some 14 years before his wife. It is common ground that they would be entitled under an intestacy as there was no prior will. They contend that Mary did not have testamentary capacity when she executed the will in September 1998. In particular they contend that she was suffering from irrational delusions. In the Particulars of Claim only two delusions are referred to

1. She falsely and irrationally believed that her children did little or nothing to help her, and

2. She falsely and irrationally believed that no assurance had been given to her children that the Farm would be theirs.

4. However the witness statements go considerably further and a number of other delusions were considered by the medical experts in arriving at their conclusions. As a result it has been necessary to examine the totality of the alleged delusions.
5. There is a clear issue between the parties as to whether Mary had testamentary capacity in 1998. The Claimants' case is supported by their own evidence as to her behaviour and the expert testimony of Dr Mahapatra. NOS seek to uphold the will and rely on the evidence of the attesting witnesses – a solicitor and Mary's GP and on the expert testimony of Dr Campbell. The experts agree that Mary understood that she was making a will and its effect, understood the extent of the property she was disposing of and the nature of the claims to which she ought to have given effect. They differ, however on whether she was suffering a mental disorder at the time she made the will and its effect. Dr Mahapatra believes that Mary was suffering from a paranoid personality disorder when she believed that her children were not helping her and that this poisoned her affections to the extent of preventing the exercise of her natural faculties. Dr Campbell considers that a diagnosis of paranoid personality disorder is only tenable if the Claimants' evidence is taken at its highest. He also considers that Mary was not suffering from any mental disorder or any significant cognitive impairment which could result in a lack of mental comprehension. In his view any lack of affection shown to the Claimants was an expression of Mary's authentic self rather than a perversion arising from any mental disease.
6. If, contrary to the Claimants' primary claim Mary had testamentary capacity when she executed the 1998 will the Claimants have an alternative claim to Chapel Farm on the basis of proprietary estoppel or (by way of late amendment) on the basis of a constructive trust. This claim is based on promises or expectations allegedly made or raised by Mary and/or Francis from about 1951 continuing up to the death of Mary that the farm would remain within the family. NOS do not accept anything that was said gives rise to an estoppel. In any event it contends that any estoppel was satisfied on the dissolution of the partnership between Francis and his two sons in 1987.
2. Representation
7. The Claimants were represented by Mark Blackett-Ord together with Mr Mark Baxter^[1] instructed by Mitchells of 2 Peckitt Street, York, YO1 9SF. The First and Second Defendants – the executors named in the October 7^th 1998 Will who have throughout adopted a neutral stance in this litigation were represented by David Rose instructed by Sykes Lee and Brysdon of Bintay House, 13 York Road, Acomb, York YO24 4LW. NOS was represented by Malcolm Warner instructed by Thatcher & Hallam of Island House, Midsomer Norton, Bath BA3 2HJ.
8. I was provided with full and comprehensive skeleton arguments and closing submissions together with almost all of the documents in the case in electronic form. I am most grateful for the assistance received in a by no means straightforward case.
3. Evidence
9. The trial was estimated to last 5 days. This proved to be a significant underestimate. The opening and the evidence lasted for 7 days and there was one further day for closing oral submissions.
10. Each of the Claimants gave evidence. They were cross-examined for periods of between half a day and slightly in excess of a day. Four independent witnesses were called in support of their case. Alison Smith and Fiona Kingscott are two of the daughters of Margaret. They were called specifically to deal with statements Mary made to Mr Joslin in September and November 1996 about the effect of cutting her children out of her Will. Peter Sargent worked at Chapel Farm as a labourer from 1972 until Mary's death in 2006. He was the sole employee at the farm after 1992. Part of his duties included chauffeuring both Francis and Mary. He was called to corroborate some of the evidence about Mary. Jean Sargent is Peter Sargent's wife. She worked in the house 2 days a week for a short period up to 1985. At one stage there was an intention to call Henry Dean and his wife. Their evidence seemed to me to be of limited assistance in relation to the issues in the case and in the event they were not called.
11. The executors called 3 witnesses. The most important of these was Mr Joslin, a partner in the firm of Sykes Lee & Brysdon. Mr Joslin was consulted by Mary on a number of occasions between January 1995 and November 2004 about the making of her Will, the possible sale of Chapel Farm, the possible sale of a bungalow which formed part of Chapel Farm, and the making of Enduring Powers of Attorney in favour of Nigel Stephenson in 1999 and her two sons in 2004.
12. Mr Joslin kept careful and lengthy file notes of the discussions with Mary. Both sides rely on the file notes. The Claimants expressly accept the accuracy of the file notes but contend that a great deal of what she told Mr Joslin was simply untrue. They contend that Mary believed it to be true so that it supports their case that Mary was suffering from delusions. NOS however contend that the contents of the file notes show that Mary knew precisely what she was doing when she decided to cut her children out of the will.
13. In addition the executors called Dr Whitcher, Mary's General Practitioner who witnessed the execution of the Will. Dr Whitcher treated Mary approximately 5 weeks before the Will was executed. Furthermore he wrote a letter to Mr Joslin the day before the Will was executed expressing his opinion that Mary did have testamentary capacity.
14. Finally the executors called Robert Brydson. Mr Brydson was a Consultant at and a retired Partner of Sykes Lee & Brydson. He, too, witnessed the execution of the Will. When he gave evidence he was suffering from acute anaemia which affected his memory. He had some memories of the Ritchie family. For example he described Francis as being "straightforward" and "a joy to deal with". He thought Mary was "a truthful woman". He had no detailed recollection of events and could not remember Mary complaining to him about his children in the way that appears in Mr Joslin's file notes.
15. NOS called one witness of fact – Ms Gail Inchboard. Ms Inchboard describes herself as a friendly neighbour of Mary. After Francis died she spoke to her on the telephone or in person two or three times a week. She occasionally helped with cleaning and shopping. On one occasion Mary told her that she had left her children nothing in her Will. As a result, perhaps in anticipation of trouble, she made a number of recordings of telephone conversations between herself and Mary in 2001.
16. Dr Mahapatra and Dr Campbell were called to give expert evidence as to Mary's testamentary capacity. Each was cross-examined for approximately half a day.
4. The Facts

4.1. History

17. Francis was born in 1908 some 9 years before Mary. They married in 1938. There were 4 children – 2 boys and 2 girls - James Ritchie (8/4/1939),("Jimmy") William Ritchie (23/5/1940) ("Willie"), Helen Swiers ("Helen") and Margaret Pick ("Margaret") (twins both born on 11/4/1948).
18. Francis was a farmer. In 1931 he had rented Redding Farm in Lanarkshire. In 1947 he bought the farm as sitting tenant. In 1951 he purchased Chapel Farm. At that time it consisted of some 305 acres together with a further 45 acres of rented land.
19. Chapel Farm was very run down when Francis bought it. According to Jimmy it ran at a loss for a number of years. In 1955 both Jimmy and Willie left school (at the ages of 16 and 15 respectively). They both lived at home and were given pocket money only. There is no doubt that the fortunes of the family improved and that the farming became profitable. The account for the year ending 31^st May 1962 shows that there was a profit for the year of £3,731, that there was a sum of £22,679 on Francis's capital account. There was an overdraft of some £4,100 with Lloyds Bank.
20. A number of promises or understandings are said to have been made between Francis and his children in relation to the farm. It will be necessary to consider them in more detail later in this judgment.
21. On 1^st June 1962 Francis took his 2 sons into partnership with him. Chapel Farm was not included as a partnership asset. Initially the first £1,000 of profit was paid to Francis; the remaining profit was divided in shares of 50:25:25. However in 1967 the boys became equal partners and the profits were divided equally between the three.
22. Jimmy said that the position did not change much when they were partners in that they had low drawings and that their father treated the farm as his own. However the low drawings of the 2 sons were reflected in the accounts. In any event there is no doubt that the partnership prospered. More land was acquired (including the 45 acres that had originally been rented) – some rented and some bought. Francis enjoyed a good standard of living.
23. The partnership was finally dissolved in 1987 following discussions and negotiations over a period of about 2 years. By that time the partners were farming some 1,000 acres – Chapel Farm (305 acres) which belonged to Francis, some 330 acres which had been acquired by the partnership whilst it was in existence^[2] and the remainder was rented. The partnership capital accounts were in credit to the extent of £70,605 (Francis), £109,807 (Willie ) and £128,191 (Jimmy). In fact these figures were based on historic land values. In any event land and other assets were distributed to Jimmy and Willie to give them 41% and 35% respectively of the assets. Francis retained Chapel Farm plus the 45 acres.
24. Differing reasons were given for the dissolution. At the time of the dissolution Francis was 78 years old. In his witness statement Jimmy gives 4 reasons:

1. Willie preferred to do his own thing and had different ideas

2. Francis wanted to coast along doing very little and enjoying his lifestyle

3. Mary's excessive spending

4. Jimmy wanted to do his own thing

25. In cross-examination he repeated that his father wanted to coast along. He described him as an elderly man with a wife with a spending habit. He said that things could not continue as they were. A re-structuring was needed. He described the dissolution as amicable.
26. In his witness statement Willie says that Francis wanted to continue farming in partnership. However Willie wanted the security of a written partnership agreement. He also wanted an agreement that all of the farming land (including Chapel Farm) would be subject to a Tenancy Agreement in favour of the partnership. Francis would not agree to this. When he gave evidence Willie said that he needed a bit more money out of the partnership and that Jimmy was leaving the partnership anyway. He agreed that his father was upset at the dissolution but he said that he had come round after a few days.
27. Other evidence suggests that Francis was upset at the dissolution of the partnership. It may be that this is reflected in the wills that he made. In 1974 he made a will under which he left £5,000 to Mary, a life interest in Chapel Farm to Mary with remainder to his 2 daughters. In addition he left his share in the partnership to his 2 sons. In 1989 he made a will under which he appointed his 2 daughters as executrixes. He gave his whole estate to his wife but if she did not survive him he left a legacy of £20,000 to his grandson (Jimmy's eldest son) and the remainder of his estate to be divided equally between his 2 daughters. In his last will dated 22^nd July 1991 he appointed his 2 sons as executors. He left the whole estate to his wife but if she did not survive him left each of his daughters one third of the estate, the remaining one third being equally divided between Jimmy and Willie.
28. Following the dissolution of the partnership Francis carried on farming. According to Jimmy his father answered the telephone but did little actual work on the farm. He was going downhill physically. Mary never did any work on the farm. Jimmy says that he ran the farming with some help from Willie. There was a prestigious contract for the supply of potatoes to a crisp manufacturer. According to Jimmy there was a lot of work involved in the supervision at Chapel Farm.
29. In October 1990 Francis instructed estate agents – James Johnston of Boroughbridge – to sell Chapel Farm. The intention was that the farmhouse would be retained for Francis and Mary to live in. The sale particulars give a guide price of £500,000. There was in fact an offer of £480,000 for the farm and Jimmy was considering making a counter-offer. However he appears to have persuaded his father that if he sold the farm he would no longer be driven around by the farm employee – Peter Sargent. In any event for whatever reason Francis withdrew the farm from the market and there was no sale.
30. Francis died on 2^nd July 1992. Probate of his estate was granted to Jimmy and Willie in January 1993. Under the terms of his will his whole estate passed to his wife. Mary continued to live at Chapel Farm until late 2004 when she had a fall. Subsequently she was transferred to Rosevale Nursing Home where she remained till she died on 12^th November 2006.
31. It will be necessary to consider in more detail below Mary's relationship with her children, the extent to which they visited and helped her and the accusations and statements she made about them and others.
32. For present purposes it is sufficient to record that the farming at Chapel Farm was carried out by the executors until the assent March 1995 and then on Mary's behalf by Jimmy and to a lesser extent Willie. Mary readily acknowledged that she could not carry out the farming herself. There were a number of disagreements between Mary and her sons as to the farming.
33. There are a number of references in Mary's GP's notes to family or financial problems^[3]. In the summer of 1996 she had an itchy scalp and visited her GP on a number of occasions between June and the end of August 1996. The notes for 2^nd July 1996 and 16^th July 1996 record that she was obsessed that the house had dust mites. The note for 23^rd July 1996 records that Mary was still convinced there was an infestation of dust mites – "they are crawling all over her face". However Dr Turnbull also noted: "No other psychiatric symptoms. Has insight."
34. Mary suffered from back pain from at least 1997. The notes record in January 1997 that an x-ray had revealed marked osteoporosis. Despite suffering from osteoporosis there is no record of any contact between Mary and NOS.
35. Mary made a number of visits to her solicitor Mr Joslin between 1995 and the date she made her will in October 1998. Mr Joslin made detailed file notes of those visits and it will be necessary to consider them in detail later in the judgment. During the visits she discussed selling the farm, making her will and made various complaints and/or other comments about her children.
36. Mary executed her will in the presence of Dr Whitcher and Mr Brydson on 7^th October 1998. Both were of opinion that she had testamentary capacity when the will was made. At no time after the execution of her will did she reveal its contents to any of her children. The contents came as a shock to them. She continued to tell them they would inherit (albeit in different amounts at different times) until she died.
37. In March 1999 Mary executed an Enduring Power of Attorney (EPA) in favour of Nigel Stephenson (a partner in Stephensons – a local firm of land agents). She did not tell her children about it. They discovered about it in November 2004 whereupon following discussions she revoked it and executed another EPA in favour of her two sons. No-one questioned her capacity to execute the second EPA. Furthermore no steps were taken to register the EPA with the Court of Protection.

4.2. Helen and Margaret

Early Days

38. Both Helen and Margaret were born in April 1948. In their witness statements they both make the point that from an early age everyone was expected to help in whatever way they could. Whilst at school they helped with the cleaning of the house and garden, looking after hens feeding calves and pet lambs.
39. Both Helen and Margaret consider that their mother suffered from what would now be diagnosed as an obsessive compulsive disorder. She had a set way in which she liked things to be done including counting the number of strokes to clean a surface, the number of shakes of a duster, the number of folds for a sheet. She would fly into a rage if a job did not come up to her standards. She stockpiled everything including tin foods to cleaning products. She spent large sums on clothes often buying the same outfit in a number of shops. Many of her clothes were never worn. Both Helen and Margaret describe her as odd and difficult throughout her life.
40. The initial plan was that Margaret would leave school at 15 and help at home. There was an expectation that one of the girls would stay at home. Margaret did indeed leave school at 15 even though it had been suggested she might gain some CSEs. Margaret was not as bright as her sister and she was told by her father that there was no point in staying on at school. She stayed at home for a year. Mary's bullying and controlling nature were such that Margaret could not stand them any more. Thus Margaret was allowed to go to a beauty therapist course in Bedfordshire. At the end of the course Margaret was offered a job at Henlow Grange. After some persuasion Francis allowed her to take the job where she remained for 2 years till she was 19. At that time there was a suggestion that Margaret would take a job in Spain and/or in London. However she was under pressure to come home and did so. When she came home she continued working. Initially she set up and managed a small salon in York whilst living at home. Thereafter she was offered a job at a health farm in Otley. This involved leaving home and met with some opposition. Margaret worked in Otley until her sister became engaged and a date was set for the wedding. Francis required her to come home to work full time at home. Margaret remained at home till she married on 4^th August 1971 at the age of 23.
41. Helen stayed on at school and took her O Levels. She then commenced an A Level Course in History and English Literature. After a year she was told by her father that she would be leaving school to do a one year Secretarial Course in York. In cross-examination Helen agreed that she did not protest at this suggestion. Indeed she was perfectly happy to go along with her father's suggestion. After the Secretarial Course she worked as Secretary for a short period of time earning some £8 per week. Helen was then told to return to help at home. Helen returned home and remained there till she married in July 1970 at the age of 22. Whilst at home she did some secretarial work for her father, and helped her mother. As she could drive she was allowed the use of the car and would use it for collecting and delivering goods or other errands.

Married Life

42. Both Helen and Margaret married into farming families. Helen married Christopher Swiers when she was 22. He was from a well respected farming family near Scarborough. His parents had a large farming operation. When she married she was given a wedding present of £3,000 from her parents who also paid for the wedding. They were given a 300 acre farm by Christopher's parents. She moved to Broxa Farm, Scarborough where she has lived since the wedding. Initially she helped her husband on the farm. She has 2 children – a son and a daughter. In 1990 her husband died suddenly. By that time the farming operation had expanded considerably. Although they had substantial borrowings – over £1 million – they also had substantial assets. They were by then farming some 1,250 acres of which 800 were owned.
43. Following Christopher's death Helen farmed Broxa Farm on her own. In 1997 her son joined her in the business and she now farms in partnership with him. In cross-examination she agreed that she could not be described as being in needy circumstances in 1998. Indeed she said she never discussed her finances with her mother. She said her mother had no interest in anything outside herself.
44. Margaret married Richard Pick when she was 23. Richard was also from a well respected farming family farming at Kirk Hammerton only some 5 miles from Chapel Farm. They have 3 daughters – two of whom are now solicitors. Richard farmed in partnership with his brothers and father. Richard, unfortunately suffered from severe depression and had periods of time when he was in hospital. Margaret helped to some extent with the farming operations. In September 1998 she got a part time job at Gouldsborough Hall nursing home. In September 1999 she started working full time. Even when she went to work she continued to help her mother at her home and took a holiday when she was needed for spring cleaning. Mary was apparently angry that Margaret was going out to work so that she was not at her beck and call as much as before.
45. In 1999 Margaret commenced divorce proceedings and in early 2000 filed an affidavit of means. In that affidavit she disclosed an income of just over £12,500 per annum, and assets amounting to £99,000 some of which were put into her name for convenience. In the affidavit she made the point that some of the assets had been derived from gifts from her father. In evidence she said that that part of the affidavit was false. Those assets did not include any rights she plainly had in the matrimonial home which was in the name of the farming partnership. In cross-examination Margaret said that she never discussed her financial affairs with her mother who would not have known her financial position.
46. Richard committed suicide in 2004. She now has substantial capital assets following his death including a farm.

Contact with Mary

47. Both Helen and Margaret insisted that they saw their mother regularly from the date of their marriages to the date of her death. Both agreed that Mary almost never visited them at home. That was from her choice – not for want of an invitation.
48. Helen said that she visited her mother at least once a month and telephoned her regularly. She never went more than 3 or 4 weeks without seeing her mother. It was a 3 hour round trip to visit her mother. Most of the visits lasted at least 2 hours. She usually turned up unannounced. This was because there had been occasions when she had made an appointment to see her mother and not been let in. On other times she had cancelled arrangements that had been made. Some times she was asked to do general housework. Helen described her as compulsive about cleanliness. You had to take your shoes off when you came into the house; it went beyond meticulous care. It was obsessive.
49. Often however she talked with her mother. According to Helen the conversation was one sided. Mary talked and Helen listened. The talk was centred around Mary. She would regularly make accusations against her siblings and others such as Peter Sargent. Helen did not believe the allegations but did not feel it worth antagonising her mother by refuting them. At Christmas Helen would regularly take over for her mother a cake or Christmas pudding.
50. Margaret paints a similar picture. She, however, would never visit her mother without an appointment. She too said that there were occasions when she had made an appointment to see her mother and had been refused access. She said that her mother would change arrangements without any regard for Margaret's commitments. When she went over she was invariably asked to help with housework. Her mother would not talk to her as she talked to Helen.
51. The impression left by Margaret's evidence was that she visited her mother rather more than Helen. She said she might have to go once a week. Sometimes she went 3 times in one week if her mother wanted a lot of cleaning done. Sometimes she was there all day. She spoke to her often on the telephone. She said that there might have been a period of up to two weeks when she did not visit her mother but that would be exceptional. She too said that her mother would make accusations about other members of the family. She did not contradict her. She did not want a fight. As she said "This is mother. This is something she did".

Promises made by Francis and/or Mary

52. In her witness statement Helen makes 2 statements about what was said about the farm. In paragraph 1 she says:

We were told time and again by father in the presence of mother that the farm must always remain in the family and be passed through the generations. They made it clear that this would entail us passing on the farm to future generations of the family and we all accepted this without question.

53. In paragraph 21 she makes reference to her parents referring to Aesop's fables and to the need to stick together as a family. She goes on:

When we were young and being asked to stay at home to do housework we were given to understand by our parents that in return we would be left everything after our parents had died and I believe that my sister Margaret was told by our father that the farm would be left to her and me. While we were growing up father said to us several times that we would be well looked after.

54. In cross-examination Helen said that she took it that there was a promise that the prosperity that had been built up within the family would remain with the family "for the good of us all". It was her view that the promise would have been satisfied by leaving the farm to a member of the family – not necessarily to her. It had, however always been said that she would be looked after in some way. It was just an understanding that "we would get something for being a daughter of the household".
55. According to Helen there were no discussions between the four children as to what they would receive when Mary died. It was just an understanding from all the conversations in the past. She felt that if anything different was intended she should have been told. In paragraph 19 of her witness statement Helen makes the point that she was never told of the terms of the will. On the contrary she was told on many occasions that the farm and everything else would remain in the family after she had gone.
56. Margaret deals with the matter in a number of places in her statement. In paragraph 2 she says:

From our earliest years the stated intentions and expectations between my parents and brothers and sister and myself were always that we should work together as a family and that assets would be kept within the family and passed down through the generations. My brothers were to help with the farm and building jobs whilst Helen and I were to help mother and wherever else required. My parents were to leave their estate to each other. The survivor was to leave his or her estate to their four children in equal shares – or at times they talked of making the shares unequal if they felt that some of us had helped more or received less than others during their lifetimes.

57. In cross-examination, however, her evidence was somewhat different. She said that father was proud of what he and the boys were achieving with the farm. He told her that she and her sister would be looked after. She did not in fact remember her father ever saying he would leave his estate to Mary. Mary certainly did not say that because it was not hers to leave. Father said that the boys would have the farm as they were farming it.
58. She remembered conversations in which her father was concerned about looking after Mary. This is corroborated in paragraph 12 of Helen' witness statement where she tells of a conversation she had with her father shortly before he died when he emphasised the importance of looking after Mary after he had died. Helen promised that the family would take care of Mary.
59. Margaret did remember one occasion where her father said that she and Helen would have the farm. No doubt it will be recalled that Francis's 1974 will did indeed leave the farm to Helen and Margaret subject to a life interest only in favour of Mary.
60. Margaret gave further evidence of conversations in paragraph 11 of her witness statement. In that paragraph she was discussing visits made to her by her father in her children's pre school years. He often called to see the grandchildren.

…This would lead to talk of the family and the farm's future: both topics were always linked in his conversation. He made it clear that it was his intention that the farm would always remain in the family and he discussed with me ways in which this could be achieved while still making provision for Helen and me. Making provision for daughters whilst enabling farming business to continue, unencumbered was and is a common problem for farming families.

61. In cross examination Margaret said that her father was thinking of ways of giving her something. There are further references to promises in paragraphs 21 and 22 of her statement. In paragraph 21 she refers to the fact that her father said to her several times that she and Helen would be well looked after. In paragraph 22 she says that as neither of her parents made any substantial gifts to her or Helen during their lifetime (other than the £3,000 wedding present) they assumed that they would make provision for them after their deaths.

Behaviour of Mary

62. Both Helen and Margaret give a large number of examples of what they describe as their mother's strange or deluded behaviour. Most of these relate to accusations often of dishonesty against other members of the family and/or Peter Sargent – a farm employee who drove Mary in her car. I shall not set them all out but it is right that I should give a flavour of the nature of the allegations that were regularly being made by Mary and which were said to be simply unfounded

Peter Sargent

1. That Peter Sargent charged petrol to her account and used it for his own purposes. On one such occasion she was actually sitting in the car when he filled up with petrol.

2. That he was using the car for his own purposes

3. That he was not working the hours he contracted for.

Jimmy

1. That Jimmy was stealing from her and neglecting her

2. That Jimmy was adding things to her account that ought to have been paid for by him

3. That Jimmy was selling her straw and pocketing the money

4. That Jimmy was using her equipment and not paying for it

Willie

1. That Willie was stealing from her and taking advantage of her.

2. That Willie kept cattle in her yards and did not pay for it. [In fact the reason for this was to provide Peter Sargent with a job]

Margaret

1. That Margaret was stealing from her, taking advantage of her and neglecting her.

2. That she had not received and never had received any help from Margaret

3. That she had not seen or heard from Margaret for weeks

4. That Margaret was stealing materials from her

5. That Margaret was wearing and selling Mary's clothes.

Helen

1. That Helen neglected her. In paragraph 31.5(d) of her witness statement Margaret sets out in detail an occasion when she and Helen attended by appointment to do a specific piece of cleaning. Helen had driven over from Scarborough. Even though Mary was inside the house and looking at them from an upstairs window she would not let them in and they had to leave.

63. In addition to the accusations Helen and Margaret refer to Mary's extravagant shopping habits, her habit of buying clothes she did not wear, her obsession about cleanliness and her conviction (in 1996) that the house was infested with fleas.
64. In cross examination both Helen and Margaret made it clear that in their view there was no truth in the allegations. She was making the allegations to some extent before Francis died but they increased in the mid 1990s. Because they did not believe them they did not refute them or pass them on.

4.3. Jimmy and Willie

65. In his witness statement Jimmy sets out the early history of how he and his brother left school at the age of 16 and 15 respectively; how they were paid little by way of wages and drew little till they got married; how the farm prospered from the 1960's. He also gives details of the partnership and its dissolution and, as already noted, the differing reasons for the dissolution.
66. His witness statement is vague about the promises that were made to him. In paragraph 6 he refers to his father's "grand scheme" for the boys whereby all would be theirs one day. Later in the same paragraph he talks about father having pledged the farm to him and Willie. In paragraph 7 he refers again to the farm being passed on the sons one day. In paragraph 9 he refers to his father avoiding death duties and the advantages of himself and Mary keeping control of the farm as a guarantee that they would be looked after in old age.
67. When he gave evidence Jimmy referred to 2 conversations in 1957 or 1958. The first conversation was simply to the effect that the future would look bright when the boys left school. The second conversation was more important. At the time Jimmy and Willie were considering a business venture with an estate agent. When Francis got wind of it he put a stop to it. He reminded them of Aesop's fable and the bundle of sticks and used words to the effect:

You are running off with this estate agent fellow. Your job is here. Your future is on the farm. This is all yours."

68. Jimmy took that to mean that his future was with him on the farm.
69. Willie also describes his early farming days and how hard he worked for relatively little pay. The only representation he refers to in his witness statement is in paragraph 3 where he is describing why he left school at the age of 15. Francis told him that he and Jimmy would be better off in the long run as the farm would be theirs one day. When he gave evidence Willie made the point that the conversations were over 50 years ago and he could not now remember his father making any promises to him. He assumed from conversations that the farm would belong to his brother and him but he agreed that that was just an assumption.
70. Both Jimmy and Willie describe in some detail what they did after the dissolution of the partnership and after Francis died. Thus in paragraph 15 of his statement Jimmy says he spent a considerable amount of time doing physical work on the farm. Since 1997 he has done less work and employed a contractor. Jimmy points out that he supplied one of his men free of charge till 1997. He also points out that he spent a lot of time looking after his mother after 1992 including carrying out shopping and taking her shopping on a weekly basis every Thursday. In paragraph 8 of his statement Willie deals with the matter. He points out that Jimmy and he looked after and ran the farm until Mary's death. They never took any payment for their work. They lent her machinery free of charge.
71. Both Jimmy and Willie comment on their mother's behaviour. Most of the allegations are similar to those made by Helen and Margaret. Jimmy complains that she did not co-operate when he was running the farm and would not always follow his advice. He says she made it very difficult to farm for her. He refutes the allegations that Mary made about him to Mr Joslin and which are set out below. In particular he denies ever being violent towards his mother. He accepts that when he learned about the appointment of Nigel Stephenson as her attorney in 2004 he told her that unless she appointed a member of the family he would withdraw and she would never see him again. He points out that she regularly got in a car with him and allowed him to do everything for her.
72. Following the evidence of Ms Inchboard Jimmy was recalled to deal with an assertion that he had spent a night in the police cells. Jimmy denied that he had ever spent any time in custody but accepted that there were allegations of violence during the course of his marriage. Jimmy was married in 1967 and divorced in 1979. Court hearings – mainly over money – lasted until 2000. He accepts that the divorce petition contained a number of lurid allegations against him. He also accepted that there were two instances where his wife called the police over allegations of violence. They both occurred in the mid 1970s – perhaps 1976 or 1977. On each occasion his wife received a bruise. On each occasion he asserts that he was provoked by his wife. On each occasion he believes he was prosecuted and advised to plead guilty. As far as he could recall no penalty was imposed on him.
73. He denies stealing any straw or anything else and points to the large balances of cash that were accrued by the farm during the period under his stewardship. He corroborates the amount of work that Margaret was doing at the farm especially over the time when Mary believed she was suffering from dust mites.
74. Willie's evidence was to much the same effect. He accepts that the brunt of looking after his mother had fallen on Jimmy and Margaret. In his view Margaret was in need of money. However he too lent Mary machinery and helped with her farming operation. In paragraph 20 of his witness statement he gives more detail of the allegations that Jimmy had been violent. On one occasion she complained to the police. Peter Sargent told the police that Jimmy had not even been to the house on the day she mentioned. In paragraph 25 he reiterates that the allegations that Mary made to Mr Joslin were not true and questions why, if true, she expected the family to visit her and continued to have dealings with them. Willie also confirms what he describes as his mother's bizarre behaviour. He cites the allegations of theft by many people, the allegations of violence and that no-one was helping her.

4.4. Mary's will dated 7^th October 1998

75. Mary discussed the making of her will with her solicitor, Mr Joslin, on a number of occasions between 1995 and 7^th October 1998, the date when it was signed. As already noted Mr Joslin kept careful and lengthy file notes of the discussions with Mary.
76. It is plainly necessary to consider the file notes in some detail.

17/1/1995

77. At this time Jimmy and Willie were running Chapel Farm as the Executors of Francis. Mary rang Mr Joslin and there is a long file note of the conversation. The file note records:

1. That there had been a family row over the payment of tax and she wanted to terminate the arrangement whereby the Executors were running the Farm.

2. That she could not run the farm on her own. She would be prepared to let Jimmy run the farm for her but did not trust him completely. There appeared to be a complete breakdown as far as Willie was concerned.

3. Mary seemed to agree with Mr Joslin that the only way forward was a sale of the farm. This is what had been discussed on previous occasions.

Comment

78. In addition to the file note of Mr Joslin's conversation with Mary there is also a file note of a conversation he had with Willie on the same day. It is plain that there was indeed a row between Willie and his mother. When Willie gave evidence he explained that Mary had accused him of writing cheques to himself. He said that he told her that he would not write any more cheques after that. It was in those circumstances he told Mr Joslin that he wanted to be rid of his responsibility as executor for Chapel Farm.
79. When Mr Joslin gave evidence he was asked by Mr Blackett-Ord of his general impression of Mary. He said that he never had any reason to doubt her truthfulness. He was asked to speculate on why Mary might lie to him. His reply was that he formed the impression that Mary was keen for him to get on with making the Will. It was possible (and he accepted that this was speculation) that she had lied to him in order to convince him of the need to make the Will. When the matter was taken further he said he never thought she was telling lies although it was possible that she was exaggerating.

2/3/1995

80. Mary called in at the office to sign the Assent vesting Chapel Farm in her as the beneficiary of Francis's estate. She mentioned to Mr Joslin that she was thinking of making a will cutting out her children. Mr Joslin made a manuscript file note the relevant part of which reads:

Wants to cut out all her children – but does not know what to do instead.

Gets upset at the thought of cutting them out.

81. Mr Joslin believes that he advised Mary that if she wanted to make a will along these lines it would be sensible to involve her doctor. This was not because he doubted her testamentary capacity but because such a will would cause outrage within the family and might be challenged.

5/9/1996

82. Mr Joslin saw Mary in the morning. There was a discussion both about a potential Will and the sale of the farm. Mr Joslin made a lengthy file note which includes:

She is thinking of making a will effectively cutting out her children though she might leave them each a small legacy She said that.they are all well provided for and do not need her money. In addition she feels that none of them have shown her any kindness over the last few years since her husband died and frankly she doesn't think they deserve anything. She says that Jimmy has been violent to her in the past and mentioned the fact that her daughter Margaret never comes near her now. Her mind is fairly well made up on the point although she did go on to say that if any of her children showed her any kindness in the future then she could of course change her mind or even give them money whilst she was alive. She also mentioned that one of her nieces is training to be a solicitor and made her view known to the effect that it would not be possible for Mary to cut her family out of her Will.

83. Mr Joslin advised that she could make a Will leaving the estate to whomsoever she wished. Her children could make an application for reasonable provision but it did not follow that any such application would succeed. The note continues:

I pointed out to her that when we last had this discussion some months ago the reason nothing had happened was the fact that although she seemed clear in her own mind that she wished to make a Will cutting out her children she had not been able to move on from there and give me clear instructions as to who it was she did wish to benefit under her Will. She agreed with me that this was indeed the case. She said that she is now determined to do something about it in the near future. She will give the matter further thought and then get back to me with clear instructions.

84. The file note also deals with the farm. It records that the farm was too much for Mary, that Jimmy and Willie have fallen out and that Jimmy was keeping cash payments due to the farm. She wanted to sell the farm but she was frightened of telling Jimmy and Willie this and feared violence. She mentioned that when Francis had been alive the farm was going to be sold but Willie had stopped it.
85. Mr Joslin offered to broker a meeting at the office in the presence of Mr Brysdon to discuss matters and tell them she wished to sell.

Comment

86. This is plainly a very important file note as it contains a number of the allegations which are said to evidence the delusions from which Mary was said to be suffering. A number of points can be made:

1. Two of Margaret's children are solicitors. Both gave evidence.

1. Alison Smith had a training contract with Eversheds between September 1995 and September 1997. She had been at the College of Law in York for 2 years before that. When she was at the College of Law she had the car and would from time to time take her mother to or from Chapel Farm. She often did not go into the house – she did not want to get the floors mucky. After the College of Law she came to live in Leeds and saw less of her grandmother. She gave examples of the conversations she had with her grandmother. Mary would talk about her mother Margaret; she would complain that Margaret had taken a job; she would complain about pain in her back. Alison Smith could not remember any conversations about legal or political issues. She did not discuss wills with her. She thought she would remember if she had. She made the point that she was being trained to be a corporate lawyer. Her knowledge of wills was limited to what she had learned at the College of Law.

2. Fiona Kingscott is younger than her sister. She was at York College between 1996 and 1998 and had not studied law at university. Thus, as at the date of this conversation had only been studying law for less than a week. She did a training contract with Schofield Sweeney and later (after working for Filtronics) joined Lupton Fawcett. She had limited contact with her grandmother and never discussed wills with her.

2. There was some discussion of whether the children were "well provided for". In his opening Mr Blackett-Ord accepted that Jimmy and Willie had adequate means but suggested that Helen and Margaret were not. I have set out the evidence relating to their financial position above. Both Helen and Margaret had married into farming families. Both told me that they did not discuss their financial positions with their mother and thus she had limited information on which to have formed the view she did. She did, however, know that Helen' husband had died and that she was seeking to run the farm with a young family. She also knew that Margaret's husband was not well. If Willie's evidence is correct he told her that she ought to pay Margaret for the help that was being given. She also knew, by September 1998 that Margaret had taken a job. There was evidence that she was told that Margaret had taken a job because "she needed the money".

3. The file note contains allegations that Jimmy was violent towards her, doing little on the farm and that he was stealing from her. These allegations are strongly denied by Jimmy. The file note does however corroborate that the allegations were being made. If Jimmy and/or Willie had been stealing from her as she so regularly alleged one might have expected that there would have been less money in the estate than there in fact was.

4. When Mr Joslin gave evidence he said that "violent" and "violence" were words Mary used on several occasions. He took it to mean that she got frightened when he flew into a rage. Mary referred to an incident, shortly after Francis died when she alleged that Jimmy had got her by the throat. She never said she had been hit by Jimmy.

5. It contains allegations – strongly refuted by Margaret – that she (Margaret) never comes near her now. Again this corroborates that allegations of this sort were being made by Mary. When Mr Joslin gave evidence he confirmed that he had no independent evidence of the truth of the allegations. He said it was clear that she did have some contact with her daughters but he had no reason to doubt her.

6. It is correct that there was a proposal to sell Chapel Farm (apart from the farm-house) in 1990 and that Francis withdrew from the sale after a purchaser had been found. It is also right that Jimmy and (probably) Willie were against the sale and that Jimmy attended a meeting with the estate agent following which the sale did not proceed.

18/11/1996

87. On 18^th November 1996 there was a long telephone conversation between Mr Joslin and Mary. After discussing the possible sale of Chapel Farm the conversation turned to the Will.

Once again she had a great number of complaints about her children and said that she was not inclined to leave the estate to them. She said her daughters very rarely came to see her even at the moment when she is suffering from ill health. She said that one of her daughters has a daughter who is a solicitor working for Eversheds who has said that Mary cannot cut her children out of the Will. If she does the Will will be contested. This has upset Mary considerably.

…I pointed out to Mary that we had had this conversation before. Things had floundered because at the end of the day she could not give to me … clear instructions to prepare a Will. In particular although she was able to say that she did not wish her children to benefit she was not able to say who she did wish to benefit. She mentioned leaving her estate to charity but had not been able to tell me which charity she wishes to leave it to. She indicated that she would think about this and get back to me.

…In conclusion I said that as far as the farm is concerned I am happy in conjunction with [Mr Brysdon] to contact her two sons if she wishes and tell them that she has made a decision to sell the farm. She herself does not wish to tell them. She is fearful of the consequences. She says that Jimmy is violent and she fears violence if she herself tells them.

88. According to Mr Joslin following this meeting he received a follow up call from Mary about the possible sale of the farm. Following that conversation Mr Joslin spoke informally to Willie about the sale of the farm. Willie stated that he had been advised that it would be better for tax purposes if the farm were retained but that he would talk to Mary about it. It was a matter for her whether Chapel Farm was sold.

Comment

89. This is another important file note. The reference to the grand-daughter working at Eversheds can only be a reference to Alison Smith. As already noted Alison Smith refutes that she ever discussed Wills with her grandmother. She repeats the complaints about lack of attention from her daughters even though – as I have noted – both daughters contend that they were visiting and helping (with cleaning) regularly. She repeats the complaint that Jimmy was violent to her. The file note also shows that Mary's desire was to cut out her children rather than to benefit any particular charity.

17/11/1997

90. In fact Mary did not consult Mr Joslin again for almost a year. On 17^th November 1997 Mr Joslin received a call from Mary in which she said she wanted to make her will as previously discussed. She wanted to cut out her family for various reasons and thought it was now fairly urgent.

20/11/1997

91. Mary called by appointment to see Mr Joslin. Most of the meeting was taken up discussing the farm. She still wanted to sell the farm but feared that her sons were against the sale and would not co-operate with the running of the farm until it was sold.

Mary went on at great length … about the way she is treated by her children and about the way they do little or nothing for her. She says they do not deserve anything. In any event they are all well off and well set up in life themselves and simply do not need her money.

This took us eventually to the question of her Will … Whilst she has it fairly clearly in her mind that she does not wish to benefit her children she does not seem able to say exactly whom she does wish benefit. She mentioned a Home for people suffering from osteoporosis but could not give me the details of the Home in question … I pointed out to her that I am prepared to prepare a Will in accordance with her instructions but only when she gives me clear instructions about what she wants to do with her estate. This includes clear details of what charity or charities (if any) she wishes to benefit by her Will.

I pointed out that any Will cutting out her children would of course cause ill feeling and might possibly be contested. She felt that they almost certainly would contest it and of course they have the money to do so.

Comment

92. This file note does not add greatly to previous file notes. It is to be noted that she repeated her allegations against her children (though she does not mention that Jimmy is violent on this occasion). She again asserts that the children are "well off" even though the daughters have not discussed their financial position with her. It is the first occasion anything to do with osteoporosis is mentioned as a possible beneficiary. Mr Joslin was left with the clear view that Mary's wish was to cut out her children.

8/1/1998

93. On 8^th January 1998 Mary telephoned Mr Joslin. In the course of the discussions she said:

1. That she had spoken to Willie about the matters discussed at the November meeting and that he was generally helpful in his attitude.

2. There had been a suggestion by one of her daughters that she might give or lend her some money. She had mentioned this to Willie who had put a stop to it.

3. In further discussions about the Will Mr Joslin repeated that it was not sufficient to tell him that she wished to cut out some or all of the family. She needed to instruct him to whom she wished the estate to go.

Her main complaint seemed to be about her two daughters whom she felt were not giving her anything like the support she needed at this stage of her life. In the case of her daughter Helen she said that Helen had not been to see her for 18 months or so and the last time Mary had been in her home was about 8 years ago. The situation with Margaret her other daughter was broadly similar.

Comment

94. This file note is important. First there is a description of Willie as "generally helpful" as opposed to the criticisms that have been seen in earlier notes. Second it suggests that there is material from which Mary could have realised that one of her daughters – presumably Margaret – was not in a particularly good financial position. When Willie gave evidence he accepted that there had been conversations over lending money to Margaret. He however completely denied that he had "put a stop to it" as stated in the file note. He confirmed that there was a time when Margaret was desperate for money. Her husband had been ill and she needed money. He told Mary on a number of occasions that she ought to pay Margaret for all the work she was doing at Chapel Farm. However Mary refused. According to Willie she said "She'll get it after I am gone" or words to that effect.
95. Third, and most important, it contains specific allegations of neglect against Helen and Margaret.
96. When she gave evidence Helen accepted that her mother had not visited her in Broxa Farm since the funeral of her husband Christopher. This was not from the want of an invitation. Her mother had refused to come. Helen however completely refuted the suggestion that she had not seen her mother for 18 months. Apart from her evidence as to the regularity of the visits Helen made the point that she always visited her mother at Christmas. She used to make her a New Year Cake and a Christmas pudding and take a present of some sort.
97. Margaret's evidence was to much the same effect. When he gave evidence Mr Joslin said he was troubled by this note. He would have liked to have thought that he would have questioned Mary more about it or taken it up later with her. He cannot now remember the conversation but wondered whether anything had gone wrong with the transcription.

September 1998

98. On a date which Mr Joslin now believes to be shortly before 29^th September 1998 Mr Joslin spoke to Mary on the telephone. He made a manuscript file note of the conversation but did not date it.
99. The file note reads:

Wants to go ahead with a new will now.

Doesn't want family to benefit (children don't deserve it and does not want to benefit wider family)

St Mary's Church, Alne – legacy

Amount ?

Residue to charity

Nat. Osteop Soc will be one (I have the address from before)

Others she will think about it

She will get back to me when decided

Stressed I can't do anything until she tells me

29/9/1998

100. On 29^th September 1998 Mr Joslin had another telephone conversation with Mary. He made a manuscript file note which reads:

Rang Mary – now decided

£5,000 to St Mary's Church, Alne (C of E)

Residue Nat Osteoporosis Society

Decided not to nominate any other charities – they can have it all.

I will send a draft out tonight

She feels it is now urgent

Exors – S L & B

Provide for debts and funeral expenses to be paid

Jimmy might be owed something for work – but she thinks that he has had more than he is entitled to – but we will have to agree this with him when it happens

Comment

101. The only comment that can be made on this note is that Mary still apparently believed that Jimmy was stealing from her. She knew that he was not being paid for managing the farm; thus the reference can only be a reference to the allegations of stealing.

4.5. Execution of the Will

102. Mr Joslin duly prepared a Will in accordance with Mary's instructions and sent her a draft on 29^th September 1998. In the covering letter he invited her to telephone and inform him whether she was able to approve it. He made the point that it would be sensible to arrange for her doctor to be one of the attesting witnesses.

I have advised this because the Will cuts out your children who may seek to contest the Will after your death. If this were to happen then I think that it would be a considerable advantage to have had your signature witnessed by a doctor. He would be able to confirm that you knew exactly what you were doing when you signed the Will.

103. On 1^st October 1998 Mary telephoned Mr Joslin. She had received the draft Will and indicated that she wanted to proceed. She made an appointment to come to execute the Will and authorised Mr Joslin to consult her GP - Dr Whitcher. Accordingly on the same day Mr Joslin wrote to Dr Whitcher a letter which included:

Mary has an appointment to see me at these offices on …7^th October next with a view to signing her Will. I do not intend to divulge the contents of the Will but Mary feels that certain members of her family will be unhappy at the contents of the Will and may seek to challenge it after her death.

I myself do not doubt that Mary has testamentary capacity. Nevertheless in view of what she has told me I think that it is important that we should seek your own view of the matter and record that view. In the circumstances are you able to let me have confirmation in writing that you have seen Mary in the recent past and that you consider her to have testamentary capacity.

104. The letter went on to refer to the fact that the ideal course would be for Dr Whitcher to act as a witness to the Will but that Mary was reluctant to sign it at the surgery.
105. Dr Whitcher replied to the letter on 6^th October 1998. In his letter he confirmed that Mary was his registered patient, that he had recently interviewed and examined her and that it was his opinion that she did have testamentary capacity.
106. On 7^th October 2008 Dr Whitcher telephoned Mr Joslin. Mr Joslin's file note includes:

He says he knows Mary well and last saw her about a fortnight ago. He says he has no doubt that she does have testamentary capacity.

107. He agreed to attend Mr Joslin's offices to act as a witness to the execution of the Willl.
108. The Will was duly executed in the afternoon of 7^th October 1998. Mr Joslin's file note includes:

Before being invited into my room to sign the Will Dr Whitcher and Mary were in reception together for a few minutes so Dr Whitcher was able to chat to her.

I saw Mary, Dr Whitcher and RMB in my office together. I gave Mary the engrossed will which she read through carefully and confirmed that it was exactly the same as the draft which she had already seen at home. I had previously explained to Mary that she did not need to divulge the contents of the Will to Dr Whitcher if she did not wish to do so and in the event we did not actually discuss the provisions of the Will. However she did volunteer to us that she was doing "a very difficult thing" but she had made up her mind and decided to do it. She shed a tear or two before actually signing. The Will was then witnessed by RMB and Dr Whitcher.

Dr Whitcher then left and RMB and I had a few more words with Mary. She said that it had taken her a long time to firmly make up her mind to go ahead with the Will but she felt that it was the right thing to do and that she was now glad that she had done it. She felt that she had not been well treated by her children over the years and they did not deserve her estate when she passed on. Moreover she does not really feel that they need it.

… She fears violence particularly from Jimmy if he were to find out what she has done.

109. Dr Whitcher gave evidence of fact relating to the attestation and his opinion that Mary had testamentary capacity at the time the will was executed. He had seen Mary on 3^rd September 1998 (5 weeks before). She was complaining of a number of symptoms including itchy skin, pain in right arm. She complained that her family were ganging up against her; Dr Whitcher examined her. He did not make a formal psychiatric assessment. It is his view that she was able to answer questions appropriately and that he was able to make an assessment of her ability to understand her circumstances. It was those factors that led him to form the view that Mary had testamentary capacity. In cross-examination he agreed that he was not told about the contents of the will and thus did not know that Mary was cutting her children out. He said that it was extremely rare for him to be asked about a patient's testamentary capacity. Indeed he thought this was the only occasion when he had been so asked. He did not carry out formal tests but based his view on the consultation 5 weeks before. Even if he had doubts about a patient's mental capacity he would not necessarily refer them on for further treatment.

Comment

110. Mary's reasons for cutting out the children as expressed at the time she signed the Will are obviously important. In summary she gave three reasons which echo but are not identical to the reasons given in earlier file notes:

1. She had not been well treated by her children over the years

2. They did not deserve her estate when she passed on

3. She does not really feel they need it.

111. She also repeated her fear of violence from Jimmy if he found out what she had done. As already noted the terms of the will came as a complete surprise to her children. They say that she continued to assert right up to her death that they would inherit the estate – though not necessarily in equal shares.

4.6. Post-execution file notes

112. Following the execution of the Will there were a number of further file notes in relation to subsequent events. Plainly these are of less relevance in respect of her testamentary capacity on 7^th October 1998 than the earlier notes. I shall therefore only refer to the most important notes.

8^th October 1998

113. Mary telephoned the office and spoke to Mr Joslin's Secretary. She apologised for being emotional when the will was signed. She said that she felt a lot easier in her mind now that it had been done.

February 1999

114. Nigel Stephenson telephoned Mr Joslin on 5^th February 1999 because he had been contacted by Mary over the farm. The file note suggests that Nigel Stephenson was going to advise Mary to rent the farm on a farm business tenancy for 5 years.
115. On 8^th February 1999 Nigel Stephenson again contacted Mr Joslin. He had visited Mary and described the visit as something of a waste of time. He said that Mary had enquired about whether he would agree to act as her Attorney. He said he would if absolutely necessary.
116. On 10^th February 1999 Mary phoned Mr Joslin and reported on her conversation with Nigel Stephenson. She was thinking along the lines of appointing Nigel Stephenson as her Attorney but had decided that for the moment she wanted to soldier on and sign cheques herself. Mr Joslin advised that it would be possible to sign a Power of Attorney which would enable Nigel Stephenson to take over if she ever became incapable of managing the farm herself. The file note concludes:

She finished off by saying that she was more pleased than ever that she had taken the decision to make the Will she had made some 3 weeks ago. She says that her daughters have not been anywhere near her recently and Jimmy and Willie do little or nothing to help her. In fact she feels they are out for all they can get.

March 1999

117. On 2^nd March 1999 Mary instructed Mr Joslin to prepare an Enduring Power of Attorney (EPA) in favour of Nigel Stephenson. Mr Joslin signed the EPA on 4^th March 1999 at Mr Joslin's offices. Mr Joslin sent the EPA to Nigel Stephenson on 31^st March 1999 and received it back duly signed by Nigel Stephenson shortly thereafter.

March – August 2000

118. There are a number of file notes over this period concerning a possible sale of a small bungalow forming part of Chapel Farm known as "Laurel Dene". It is not, in my view necessary to consider them in any detail. There is no doubt that Mary equivocated over the sale. In one file note (15^th June 2000) Mary alleged that Willie had started to swear at her and that she could not stand up to him. In the end she decided not to proceed with the sale.

November 2004

119. On about 12^th November 2004 Willie telephoned Mr Joslin to inform him that Mary was in hospital and to ask whether there was an EPA enabling either him or Jimmy to manage the farm for her. Mr Joslin informed Willie that there was an EPA in favour of Nigel Stephenson. According to the file note Willie was not pleased and told Mr Joslin that the family would not like an outsider being appointed.
120. Willie phoned Mr Joslin again on 15^th November 2004. He told him that he had spoken to his mother over the week-end. His mother had told him that she had been pressurized by Nigel Stephenson to appoint him as her Attorney and would now prefer Jimmy and himself to be her Attorneys. He asked Mr Joslin to visit her in hospital to discuss this with her. Willie said that things would be very difficult within the family if an outsider acted as his mother's attorney. He felt that others in the family would virtually disown her if this were to happen.
121. Mr Joslin saw Mary in hospital on 18^th November 2004. He spent about an hour and ten minutes with her. There is a very detailed file note of the conversation. As a result of advice given by Mr Joslin she decided to revoke the EPA in favour of Nigel Stephenson and to execute a new EPA in favour of Jimmy and Willie. The question of her Will was raised. She emphatically did not want to change the Will she had made.
122. In the course of the discussion about the EPA she said that she did not trust Willy and Jimmy 100%. She felt that Jimmy in particular had run things in his own interest so as to benefit himself rather than her. She thought this would continue.
123. Mary did not need to be reminded about the contents of her Will. She knew that her estate had been left to a charity connected to Brittle Bones though she could not remember the exact name of the charity. She knew her children would not benefit.
124. The file note continues:

I enquired gently of her as to whether or not she remained happy with the contents of her Will or whether she had ever thought of making changes. Her response was quite emphatic. She said that she did not wish to change what she had done. She complained that over the years she has not been well treated by her children. She complained about Willy and Jimmy's behaviour after their father had died when they found out that he had left the farm to her and she complained that her two daughters had as little to do with her as possible. She is well aware that the family will be very angry when they find out what she has done but in spite of this she was not prepared to consider any changes. She was steadfast.

125. When he gave evidence Mr Joslin confirmed that he thought that Mary was capable of executing the EPA. He had thought her attitude towards her children might be softening and had taken with him a number of draft wills in case she had changed her mind. It was for that reason he raised the matter with her. However it became apparent to him that there was no point in continuing the discussion.

4.7. Death of Mary

126. As already noted Mary died on 12^th November 2006. She had lived at home until 2004 when she was moved to a home after a fall. She had been in hospital twice before she died.
127. On 14^th November 2006 Mr Joslin saw the four children and went through the will with them. Mr Joslin's file notes records that they were very shocked. Jimmy said that he was owed a lot of money for having run the farm over the years. Mr Joslin told him to submit an invoice.
128. In fact invoices were submitted by Jimmy, Helen and Margaret. Jimmy's invoices are all dated 14^th November 2006. He claimed approximately £70,000 being approximately £10,000 per annum over 7 years between November 1999 and November 2006. He did not include anything for any period before that.
129. Margaret's invoice was sent on 11^th December 2006. It comprises a bill for services for work at Chapel Farm for 4 years up to 4^th November 2004. It sets out in considerable detail the cleaning work and contact that she had with her mother. The invoice was for £100 per week or £34,300.
130. Helen's invoice was sent on 14^th December 2006. It is a much shorter document. It also claims £100 per week or £34,300. It also relates to the period of 6 years before her death.

4.8. Peter Sargent's evidence

131. Peter Sargent started to work for Francis in 1972. Initially he lived in the bungalow. For a period of time up to 1985 his wife worked as a cleaner for Mary. When she ceased Francis sought possession of the bungalow. However even though they won the action Mr and Mrs Sargent moved out and went to live in a council house which they now own.
132. Whilst Francis was alive his main duties were as a farm labourer but he also acted as a chauffeur for Francis and Mary. In his witness statement he corroborated Jimmy's evidence that after the dissolution of the partnership he (Peter Sargent) was in effect working under Jimmy's direction. He corroborated that after Francis's death Jimmy in effect ran the farm.
133. When he gave evidence he said that there were many occasions that Francis said to him whilst being driven that he wanted the farm left in the family.
134. After Francis's death Peter Sargent worked for Mary. In so far as it was farm work it was under the direction of Jimmy. However he would also do the gardening, take Mary shopping and look after the Jaguar car.
135. He described Mary as being difficult but it got worse after 2000. He gave evidence of being accused of stealing petrol when she was actually in the Jaguar car when he was filling it up. Mary apparently accused him of simply not putting the petrol in the car. He corroborated various parts of the family's evidence:

1. He corroborated the extent to which Helen and Margaret visited their mother. He said that Helen visited about once a month – 6 weeks at most. He said that Margaret would come once a week at least. He said that there was one occasion in 1997 or 1998 when Mary told him that she never saw Helen and Margaret. He knew it was not true because he had seen them the day before. He told her so. He said that she looked blankly at him which he (Peter Sargent) interpreted as meaning that she knew she was wrong. Mr Warner relies on this as evidence that Mary was lying rather than delusional. I do not agree. The blank look given by Mary is capable of either interpretation. Peter Sargent's interpretation is irrelevant.

2. He corroborated the allegations that Mary had said that her sons were taking financial advantage of her. In fact Peter Sargent believed that both Jimmy and Willie were paying rent for keeping beasts in her shed. He did not accept that Jimmy was stealing straw from her. He knew that Willie gave her cheques for keeping beasts in the yard.

5. The Medical Evidence

5.1. Dr Mahapatra's report

136. Dr Mahapatra is a Consultant Psychiatrist and a Special Visitor to the Court of Protection. He has been Senior Lecturer in, Psychiatry at the University of Leeds, Consultant Psychiatrist at St James's University Hospital, Leeds and the Director of Psychiatric Services, Leeds Eastern Health Authority and Sub-Dean of the Royal College of Psychiatrists. He was a member of the Council and Education Committee of the Royal College of Psychiatrists. He is recognised under Section 12 of the Mental Health Act, 1983. At the time he gave his evidence he was 73 years old but still in active practice.
137. Dr Mahapatra did not see Mary during her life and his opinion was based on the documents with which he was provided. These included the pleadings, various attendance notes (including the attendance note for 7^th October 1998 when the will was signed), various witness statements including the witness statements from each of Mary's children, and the medical notes for Mary.
138. In paragraphs 2 to 4 of his report Dr Mahapatra summarises extremely briefly the history. In paragraphs 3 and 4 he records Mary's fussiness and obsessional fears. He noted the accusations of theft that she was making against Jimmy and Peter Sargent. In paragraph 5 he deals with the execution of the Will and in paragraph 6 he deals with some of the material in Mr Joslin's file notes. In paragraph 8 he summarises the medical records. In paragraph 9 he points out that there are 2 contrasting features of Mary's behaviour and personality:

1. that she claimed that her children were of no help and was determined that they should not receive any bequest from her Will

2. that she was in fact totally dependent on her children and well supported by them

139. In paragraphs 10 and 11 Dr Mahapatra refers to the fact that Mary was secretive and he also refers to a number of other incidents many of which happened after the date of the signing of the will. Paragraphs 12 and 14 of his opinion include:

I found that Mary was totally devoid of any maternal love and affection for her children and that she did not seem to be very close to her grandchildren. She did not seem to show the feelings one would expect from a mother when her two daughters were widowed. She seemed to operate exclusively under the mistaken belief that everybody including her children were after her money and were wanting to have large bequests on her death. She herself on occasions told her daughters they would inherit significant amounts on her death.

I found that her actions were contrived, planned and designed to be secretive. It appeared to me that Mary was a complex individual and that her actions were motivated by anger, suspicion and paranoia. Mary appeared to have suffered from obsessive compulsive disorder and was given to cleaning rituals for many years. She had restricted others coming into her home for fear of them making her home dirty. Over many months in 1996 she was convinced that she was infested with mites and that the house needed regular cleaning in order to bring her dermatitis under control. It appeared to me that her conviction that she was infested with mites was delusional in nature and that it had developed in the context of her excessive preoccupation about cleanliness of her home. She had an obsessional and rigid personality to the extent that it often limited her pleasure in life and prevented her from having satisfactory interpersonal relationships. She was inclined to be stubborn and rigid and she had a tendency to shout other people down in order to ensure that they did everything her way. It appeared to me that her personality disorder became more manifest after her husband died and she became over-sensitive to everything others did. Her behaviour and her dealings with people suggested to me that she had developed many of the essential characteristics of paranoid personality disorder as described under F60.0 of the ICD-10 Classification of Mental and Behavioural Disorders.

140. In paragraph 15 Dr Mahapatra concludes that Mary was determined to leave her estate to anybody other than her own children. Dr Mahapatra's opinion appears in paragraphs 16 to 21 of the report. The two most important paragraphs are 19 and 20:

19. I found that Mary seemed to be suspicious, secretive and determined to exercise her power over her children by leaving her estate to the National Osteoporosis Society and St Mary's Church, Alne.

20. I am firmly of the opinion that Mary's judgement was impaired by her paranoid personality disorder at the time she signed the Will on 7 October 1998. I also considered her distrust of her children when she had decided to appoint Mr Stevenson as her Attorney in 1999. In the circumstances I am firmly of the opinion that Mary did not have testamentary capacity when she signed her will on 7 October 1998.

5.2. Dr Campbell's report

141. Dr Campbell is a Consultant Psychiatrist with special interest in Forensic Neuropsychiatry. He is a Fellow of the Royal College of Psychiatrists and currently a visiting Consultant Psychiatrist to the Priory hospital Bristol. Between 2001 and 2004 he was one of the Lord Chancellor's Medical Visitors. He includes developmental disorders, mental capacity including Enduring Powers of Attorney and Testamentary Capacity as areas of special expertise.
142. Dr Campbell did not see Mary during her life and his opinion was based on the documents with which he was provided. He too was provided with the pleadings, the witness statements and the medical records of Mary. He, however, had the advantage of seeing Dr Mahapatra's report before he expressed his opinion.
143. In section 1.4 of his report Dr Campbell also provided a very brief summary of the history. In section 2.1 he summarises the Claimants' evidence summarising two of the delusions that are referred to in the witness statements. He notes in passing that Dr Mahapatra has diagnosed a paranoid personality disorder.
144. In section 2.2 of his report Dr Campbell summarises Mr Joslin's evidence. In section 2.3 he summarises the medical records noting in particular the concern over dust mites in July 1996 and the diagnosis of osteoporosis in 1997. In Section 2.4 he summarises Dr Mahapatra's view that Mary suffered from Obsessive-Compulsive Disorders and Paranoid Personality Disorders and that she lacked testamentary capacity as a result of her paranoia.
145. In section 3 of his report Dr Campbell expresses his own view of Mary. First he makes the point that no specific mental health diagnosis has been made in her lifetime. He then considers the 1996 problems with mites and makes the following comment:

In his Expert Report of 23rd April 2008, Dr. S. Mahapatra suggests that the late Mrs. Ritchie's conviction that she was infested with mites was delusional in nature [paragraph 14] and had developed in the context of excessive preoccupation with the cleanliness of her home. For my own part, I do not know whether this conviction was delusional or not, since it seems to me equally understandable as an obsessional preoccupation in a rather isolated and rigid individual. In any event, delusional or not, the late Mrs. Ritchie's conviction appears to have been manifest during 1996 only and there is no suggestion that it influenced her decision-making in respect of her Will.

146. He notes that following her admission to hospital in November 2004 Mary was noted to be paranoid but comments that a degree of mental confusion would not be surprising to an 86 year old lady in the course of a fever.
147. His overall conclusion is expressed thus:

To take an overview, on the basis of the Claimants' own evidence taken at its highest, the late Mrs. Ritchie may well have been a rather irascible individual and perhaps possessed of a sufficiently unusual personality to warrant a diagnosis of a Personality Disorder [as suggested by Dr. S. Mahapatra in his Expert Report dated 23rd April 2008 at paragraph 14]. She may also have been a rather obsessional individual preoccupied by cleanliness, perhaps to the point of experiencing a transitory isolated delusion (concerning house dust mite infestation) during the second half of 1996. However this view is predicated upon the Claimants' evidence taken at its highest. In all other respects, the medical records suggest that the late Mrs. Ritchie was free of adverse psychological symptoms until 2004 (during the course of a fever). Consequently, apart from the posited personality difficulties, the late Mrs. Ritchie experienced no disorder of the mind for most of her life and no diagnosed disorder at the time of signing her Will on 7th October 1998.

148. He makes the point that the delusional allegations do not sound like the delusional-type symptoms that arise in mental illness. Rather they are matters of opinion. He then analyses the effect of a personality disorder:

Based on my analysis of the medical evidence, I am of the view that at the material time the late Mrs. Ritchie could have been exhibiting no more than a Personality Disorder, as suggested by Dr. S. Mahapatra in his Expert Report dated 23^rd April 2008 at paragraphs 16 and 20 (based upon the Claimants' evidence concerning their mother taken at its highest). Like any personality disorder, a Paranoid Personality Disorder is a severe disturbance in the characterological constitution and behavioural tendencies of an individual resulting in considerable personal and social disruption. Such conditions emerge during late childhood or adolescence and endure through adulthood. However, the condition does not arise from any form of mental illness (whether or not of a type characterised by "insane delusion"), and a specific criterion for diagnosis is that "the abnormal behaviour pattern is enduring, of long standing, and not limited to episodes of mental illness" [International Classification of Diseases, 10th edition, at F60j]. On this basis, an individual's essential personality, whether diagnosably disordered or not, represents their authentic self. An individual's judgement may be influenced by their personality [as suggested by Dr. S. Mahapatra in his Expert Report dated 23rd April 2008 at paragraph 20] but this would represent a feature of their authentic self rather than an adverse influence on judgement arising from a disorder of mind. In any event, a Personality Disorder is not a condition characterised by "insane delusion"; indeed, the existence of an "insane delusion" would necessarily exclude Personality Disorder as a primary diagnosis. Overall, I am of the view that whether suffering from a Personality Disorder or not, the late Mrs. Ritchie's personality was an expression of her authentic self and not the consequence of any disease of the mind or insane delusion.

149. Dr Campbell then considered the test of testamentary capacity as laid down in Banks v Goodfellow and concluded:

Based on my analysis in 3.2 above, it appears to me that in exercising her powers of judgement at the material time the late Mrs. Ritchie was expressing her authentic self and not labouring under any disorder of the mind or insane delusion. Similarly, she was not suffering from any mental disease (such as schizophrenia or a delusional depressive disorder) which could impair her affections or moral sense. I am therefore of the opinion that at the material time the late Mrs. Ritchie retained the necessary Testamentary Capacity to provide valid instructions to her solicitor and sign a Will.

150. In the joint report both experts in effect stuck to their views.

5.3. Oral Evidence

Dr Mahapatra

151. When he gave evidence Dr Mahapatra confirmed that he had been a psychiatric academic all his life. He had taught and investigated all aspects of delusional disorders. Although aged 73 he is still in active practice, attached to the Harrogate clinic.
152. Dr Mahapatra adhered to the view that Mary was suffering from delusions and that those delusions significantly influenced her actions including the making of the will in 1998. He dealt with this in a number of ways during the course of his cross-examination. The answers that he gave include the following

The contents of her will suggest a great deal of suspicion and resentment towards her children. Her Power of Attorney reflected the same thing.

I think she had a long standing problem since her husband died and her thinking and her behaviour continued in the same manner being suspicious antagonistic and resentful.

It is not unusual for her to complain about the neighbours or the person who works the farm, but to hold such beliefs against her children makes me believe that she held a great deal of delusions against her children which were factually incorrect.

That these are delusions not just making up or lies. You do not make up such things against your own children and you don't go as far as she has, by cutting them off her will.

When people become deluded they develop a variety of delusions. [Mary] had suffered from obsessive compulsive disorder with cleaning rituals for many years. In that context she developed the delusion she was infested with mites. That delusion has no bearing on her capacity to make a valid will. But her delusions in other spheres like the accusations of her children, neighbours, postman and all other things stealing from her, has. She has a variety of delusions. This is the reason I alluded to the fact that her thinking was delusional.

She had delusional thinking and it seems to have dominated her life as far as I can see from the time she lost her husband seems to have become more pronounced from about 1996. Some of the thinking process was affected by the delusions.

Some was deluded and some was not.

People who are deluded are often secretive. Often suspicious. Also guarded about what they are doing and why they are doing it

Secretiveness is an essential part of delusions

In delusions there are various aspects of it. These people are suspicious and are always secretive. You are doing things without the knowledge of the children. Not letting on what they are going to do.

It is a question of fact or degree

I have given serious consideration I do believe that her thoughts behaviour and actions were significantly influenced by her delusional thinking . I include the making of the will in October 1998.

Dr Campbell

153. When Dr Campbell gave evidence he was cross-examined about his qualifications and experience.. He made the point that he had been a consultant psychiatrist since 1979. He did not accept that Dr Mahapatra was better qualified than he was. He explained why he had recently taken up a post in New Zealand and then returned to this country. He currently is employed at Priory Grange as a part time consultant. In addition he does medico legal work.
154. When asked about the characteristics of a paranoid personality disorder he listed suspiciousness, a belief in persecution by others and general irritability . He made the point that a compulsive disorder is quite different from a paranoid disability and that it was quite possible to suffer from both.
155. He accepted that if the Claimants' evidence was accepted that it would be a reasonable conclusion that Mary suffered from a paranoid disorder. He said that Mary had an unusual or perhaps abnormal personality.
156. He initially accepted that Mary was suffering from an abnormality of the mind but made the point that this was a very broad matter. He also accepted that the disorder could have poisoned her affections to her children. When this area was investigated further he made the point that the concept of disorder was very wide and could encompass every possibility. In his view an unusual personality was within the concept.
157. It was his view Mary had a personality problem not a disease of the mind. This to him was the crucial feature of the case. It was "the authentic self". He thus distinguished between a delusional disorder – where a person's attitude and beliefs change and paranoia which is a feature of personality and of authentic self. Accordingly he did not accept that Mary suffered from delusions.
158. Dr Campbell was asked comment on various features of the evidence in the light of his opinion:

1. He accepted that if Mary was not delusional she must have deliberately lied to Mr Joslin.

2. He was aware of the dust mite incident in 1996. He accepted that it was possibly a delusion but, on balance of probabilities thought it was not. He drew attention to the comment to the medical notes for 23/7/1996 - "no other psychiatric symptoms – has insight"

3. He was referred to Mr Joslin's file note of 5^th September 1996 (set out above). His comment was

She appears to be having a perfectly rational conversation with her solicitor about the will. On the face of it it is far from the case that she is pre-occupied with delusional material

4. He was referred to Peter Sargent's evidence and, in particular, the accusation that he was stealing petrol. In his view this was not suggestive of any mental illness.

5. He was asked about the evidence relating to legal advice allegedly given by the granddaughter working for Eversheds. He said that if the granddaughter had in fact said nothing about the will the evidence would either be an invention or a delusion.

159. Finally he repeated his view that a personality is part of the person and it is impossible to think of someone without his personality. The personality is the authentic self of the person.

5.4. Submissions

160. In their closing submissions Mr Blackett-Ord and Mr Baxter invite me to prefer the evidence of Dr Mahapatra to that of Dr Campbell. They make the point that Dr Mahapatra was the more experienced consultant, that Dr Campbell's report was in effect a commentary on the report of Dr Mahapatra, and that Dr Campbell's evidence was self-contradictory.
161. Mr Warner, on the other hand invites me to prefer Dr Campbell. He is highly critical of the structure of Dr Mahapatra's report and of the methodology he used to arrive at his conclusion. In paragraph 29 of his closing submissions he makes the point that Dr Mahapatra has ignored the relevance of the grant of an EPA in 2004 and failed to analyse the question of a paranoid personality correctly. He criticises Dr Mahapatra because the underlying facts are flawed, his reasoning process is flawed and thus his conclusions are suspect. He describes Dr Mahapatra's report as the sort of report that would be seen before the CPR.
162. My task, of course, is not to mark Dr Mahapatra's report as if it were an examination script but to consider whether Mary had testamentary capacity in October 1998. In the final analysis despite Mr Warner's criticisms there was not a massive difference between the views of the two experts. Mr Warner accepted (in my view properly) that if Mary was delusional that was as a result of a disease of the mind. Thus, if Mary made untrue statements as suggested by her children, the question for the Court is whether those untrue statements were lies, exaggerations of the truth or irrational delusions. Dr Campbell's evidence was that he believed them to be lies or perhaps exaggerations; Dr Mahapatra believed them to be delusions.
6. The Estate
163. There are substantial assets in the estate. Professionally prepared administration accounts show that for probate purposes the estate was valued at £2,448,750.92. The principal asset in the estate was of course Chapel Farm itself valued for probate purposes at £1,800,000. However the estate also included a very substantial amount of cash – £537,833.54 in two Building Societies and two Banks.
164. The accounts are dated May 2008. As at that date the assets of the estate were valued at £2,466,585.84. That figure includes the probate value of Chapel Farm. It does not take account of the substantial costs of this litigation.
7. Testamentary Capacity

7.1. The Law

165. There was very little dispute between the parties as to the relevant test for testamentary capacity. Counsel referred me to the classic case of Banks v Goodfellow (1870) 5 QB 549 and a number of recent decisions^[4] at first instance and in the Court of Appeal where that decision has been considered and upheld.
166. Sharp v Adam is one of the most recent decisions of the Court of Appeal comprising Sir Anthony Clarke MR, May and Jacob LJJ. The judgment of the Court contains a statement of the law between paragraphs 66 and 79. For convenience I reproduce paragraphs 66 to 72 and 77 to 79

66. The leading authority on testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549, a decision which has withstood the test of time. The testator suffered from delusions, but not such as exercised or were calculated to exercise any influence on his testamentary disposition. His last will was upheld.

67. The trial judge had directed the jury that:

"The question is whether … the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it."

The direction was held to be practically correct. The judgment of the Court of Queen's Bench was delivered by Cockburn CJ. English law, in contrast with that of some jurisdictions gives testators "absolute freedom" in the disposal of their property. Yet the judgment recognises "a moral responsibility of no ordinary importance" because "the instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection." To disappoint reasonable expectation of this kind is to "shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law" (page 563). English law "leaves everything to the unfettered discretion of the testator" on the assumption that "the instincts, affections and common sentiments of mankind may safely be trusted to secure, on the whole, a better disposition of the property of the dead" than stereotyped and inflexible rules (page 564).

68. Thus the judgment recognises a moral responsibility, which is nevertheless not translated into a requirement of the law. The classic passage in the judgment is as follows (page 565):

"It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand."

We have inserted [a] etc. into the first paragraph of this passage for ease of reference.

69. In the present case, the deputy judge found that, for Mr Adam at the time he made his 2001 will, elements [a], [b] and [c] were satisfied but that element [d] was not. He could equally have asked, with reference to this passage, whether Mr Adam's human instincts and affections, or his moral sense, had been perverted by mental disease.

70. As the immediately following passage in the judgment and the case as a whole show, the discussion is in the context of a testator who suffered from "delusions". It is said that, if mental disease "presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property", why should it be held to take away the right to do so? And there is an apparent contrast between a testator suffering from "delusions" and one who may be of unsound mind from "another cause". There is this passage on page 566:

"It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause – namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, "the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.""

71. Certain cases are cited including Den v Vancleve 2 Southard, at page 660, where the law was thus stated:

"By the terms "a sound and disposing mind and memory" it has not been understood that a testator must posses these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must posses them in as great a degree as he may have formally done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."

And there is an extended quotation from Harwood v Baker 3 Moo. PC 282, which includes at page 291:

"Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, who by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration."

72. The deputy judge referred to the passage in Banks v Goodfellow which speaks of "an obligation of the moral law" as remaining essentially true today. Its relevance was that the total exclusion of Grace and Emma Adam from the will of itself raised an issue whether the damage to Mr Adam's mind resulting from multiple sclerosis deprived him of the necessary clarity of thought to enable him to make a rational decision or affected his natural feelings for his daughters or his sense of right. Dr White's observations were not necessarily enough. There was the much more difficult question of trying to ascertain whether the thought processes leading to the decision were affected by disorder of the mind.

77. Boughton v Knight (1873) L.R. 3 P. & D. 64 is a case which contrasts a person of "sound mind" with one suffering from "delusions". Sir John Hannen, whose summing up to a special jury is reported, was a member of the court in Banks v Goodfellow. He said at page 67 that the amount and quantity of intellect which is requisite to constitute testamentary capacity is eminently a practical question that does not depend solely on scientific or legal definition. That works both ways in the present appeal. On the one hand, Miss Hall, Dr White and those who observed Mr Adam around the time of the making of his 2001 will may be intrinsically more persuasive witnesses than experts who never saw him. On the other hand, it is a jury question, and this court should be slow to disturb the "jury" decision of the deputy judge.

78. The deputy judge quoted at length at page 66 from Sir John Hannen's summing up. The heart of the quotation, which repays reading in full, is as follows:

"Accordingly, by the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England differs from that of other countries. It is thought better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters, of the past history, and future prospects of their children or other relatives may demand …"

Mr Cooper relied on this passage. Mr Jones, by contrast, referred us to a passage in Sir John Hannen's summing up at page 69, where he said:

"It is unfortunately not a thing unknown that parents – and in justice to women I am bound to say it is more frequently the case with fathers than mothers, - that they take unduly harsh views of the characters of their children, sons especially. That is not unknown. But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself. … … there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind."

79. Mr Cooper had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what Mr Adam should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why Mr Adam disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of Mr Adam excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator's soundness of mind, and not to general questions of perceived morality.

167. In the course of their submissions Counsel referred me to most of the above decisions, including, of course, the passages in Banks v Goodfellow, and Boughton v Knight set out above. Mr Blackett-Ord drew my attention to Lord Justice May's comment in paragraph 79 of the judgment and made the point that the court must ask why Mary made a will disinheriting her children. He made the point that an irrational will could of itself be evidence of unsoundness of mind. He drew to my attention two recent cases – Couwenbergh v Valkova [2008] EWHC 2451 and Walters v Smee [2008] EWHC 2029 which he said demonstrated the modern approach to cases of this kind.
168. It is not necessary to set out the facts of either in any detail. In Couwenbergh Blackburne J's judgment includes as part of paragraph 280:

I find no justification for the view that, during his August visit, he and Mrs Couwenbergh were determined to bring about Mrs Adam's removal to an old persons home, whatever her own views on the matter. The notes made by Ms Mannion do not remotely support that that was their purpose. Rather they indicate a concern to ensure that Mrs Adam was properly looked after in her final years. The evidence strongly suggests that Mrs Adam had somehow got it into her head that this was her brother's purpose. That Mrs Adam held this view amounted, in my view, to a "disease of mind" (to adopt the language of Cockburn CJ in Banks v Goodfellow) which operated to "poison" her "affections" towards him. As such, it deprived her of the necessary capacity to make a will. But even if Mrs Adam's resentment of her brother should not be attributed to some "disease" of her mind, likewise any resentment felt by her towards Mrs Couwenbergh, but is attributable to some quite rational concern as a result of their visit in August 1990, this hardly explains why she should have decided (if she did) to exclude her two nephews and Mr Couwenbergh from benefit under her will.

169. In Walters Judge Purle QC was also concerned with false beliefs on the part of the testatrix. He held that she was motivated by factors which were the product largely of misapprehensions. The misapprehensions were the result of her dementia and the effect of it on her cognitive features. In the result she lacked testamentary capacity.
170. Mr Warner did not challenge this. However he drew to my attention both orally and in his closing submissions the significance of the fact that Mr Joslin had complied with the golden rule and ensured the attendance of Dr Whitcher when the will was signed. He referred me to a further passage from paragraph 27 of the judgment of May LJ in Sharp v Adams

Mr Cooper, on behalf of the appellants, came quite close to submitting that such meticulous compliance with the golden rule should in principle be determinative. In our view, this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitors' good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule. Nevertheless, where a testator's apparent mental state is observed and recorded at the time when he actually executes the will in complete compliance with the rule and with the care with which it was in the present case; and where professional people concerned reached a properly informed and recorded conclusion that the testator does have testamentary capacity, it will require very persuasive evidence to enable the court to dislodge that conclusion.

7.2. Findings

Allegations

171. It is plain from the file notes of Mr Joslin that Mary made a number of allegations against her children between January 1995 and October 1998 when she signed the will. I have set out and commented on the file notes in detail and shall not repeat that section of the judgment. They include allegations:

1. That all her children were well provided for and did not need her money

2. That her sons – and in particular Jimmy – had been violent to her in the past and she feared violence from them.

3. That her daughters do not come near or visit her and/or do little for her. There is one specific allegation that she had not seen her daughters for 18 months.

4. That her sons were – in effect – stealing from her. Although Jimmy was looking after the farm he was running it mainly for his own advantage. He was not paying when he had beasts in her field and was stealing straw.

172. These allegations are corroborated by the evidence of all four children and by the similar allegations of theft of petrol being made against Peter Sargent. Mr Warner reminds me of the importance of the date of the will and the fact that Mary's condition plainly deteriorated after 2000. I am, however satisfied that the allegations were being made regularly from 1992 after Francis's death and well before Mary made her Will in 1998.
173. In my view the children were honest witnesses and I accept in addition that Mary was regularly making allegations against each of her children along the lines set out by Helen.

Truthfulness

174. I also accept that the allegations were not true. In particular I accept the evidence of all four children of the extent to which Helen and Margaret were visiting and seeing their mother and the extent to which they (and in particular Margaret) were helping. I agree with Mr Blackett-Ord that the bill submitted by Margaret is both relevant and helpful as to the extent of the help she was giving in the years before 2004. There is no reason to think that the position in 1998 was very different.
175. Even taking into account Mr Joslin's concern as to the accuracy of the file note of 8^th January 1998 Mary's comments about her daughters were untrue. Equally I do not accept that either Willie or Jimmy were violent towards Mary. It is true that there may have been violence in Jimmy's marriage in the mid 1970s. However that does not begin to establish violence by Jimmy against Mary. Nor do I think that the allegations can be explained as "exaggerations". Mr Joslin referred to an allegation that Jimmy got Mary by the throat. The medical notes (in 1994) refer to her being struck by one of the sons. There is equally no evidence to support allegations of dishonesty against any of the children. There is no evidence to suggest that Jimmy, who had run Chapel Farm for 14 years since Francis died, was in any way taking advantage of his mother. Indeed the fact that he was paid nothing and the fact that there was in excess of £500,000 in the bank when Mary died point strongly in the other direction. The suggestion that Margaret was stealing Mary's cleaning materials and/or even her clothes seem fanciful in the extreme.
176. The question of whether Mary's children were well provided for and did not need her money is to some extent a matter of opinion. It is not suggested that Mary was wrong in respect of Jimmy, Willie or Helen. However there must at least be a question mark as to whether she was right about Margaret. Although Margaret had married into a farming family she did not have a large income. Mary knew she was getting a job; Mary knew that her husband was ill with depression; I accept the evidence of Willie that he told her on numerous occasions that she ought to pay Margaret for the help she was receiving. Margaret never told her mother that she was short of money. There is scope for debate as to whether Mary ought to have appreciated that Margaret did need her money.

Did Mary believe that the allegations were true

177. In my view this is a central question that has to be answered. If Mary knew perfectly well that what she was saying to Mr Joslin was untrue she cannot have been suffering from delusions.
178. In my view there are a number of factors to be taken into account. Both Mr Joslin and Mr Brydson regarded her as a truthful woman. However Mr Joslin plainly had some reservations about what he was being told. He regarded some of her criticisms as being "harsh". He knew there was contact with the two daughters. Although Mr Brydson described Mary as being completely straight in everything she discussed he also said that he did not think he could form a view as whether she deliberately lied or believed what she was saying.
179. It is difficult to understand why Mary should deliberately lie to Mr Joslin. Mr Joslin suggested that it might have been to encourage him to act more speedily. The difficulty with this speculation is that Mr Joslin could not draw the will until he had clear instructions as to the beneficiaries were to be. He did not receive those instructions as to any beneficiary till early 1998 and no clear instructions to draw the will until September 1998.
180. Mr Warner suggested that the statements might be explicable as exaggerations rather than lies or delusions. I cannot accept this submission. The allegations of violence, dishonesty and in effect not coming near Mary cannot in my view be treated as mere exaggerations. An attempt was made to tone down the allegations of violence. It is, however, to be remembered that she complained to Mr Joslin that Jimmy had got her by the throat and to her doctor that her son struck her. [There is also Willie's evidence about the police being called as a result of an allegation of violence by Jimmy on a day when he was not even present. It is not, however clear whether this was before or after the execution of the Will].
181. On any view Mary was suffering from obsessive compulsive disorder; in the light of the evidence I have accepted she was also suffering from paranoia or an abnormal paranoid disability. Furthermore it seems to me that the dust mite incident in 1996 did amount to a delusion.
182. The allegations that Mary made to Mr Joslin were similar to allegations which she regularly and repeatedly made to her children when she was playing one off against the other. She also made unfounded allegations of dishonesty against Peter Sargent. Mr Warner suggested that the fact that she was playing her children off against one another made it probable that she knew what she was doing and thus pointed to deliberate lying. I do not accept this submission. It is, to my mind equally consistent with delusional belief.
183. I have set out the rival views of Dr Mahapatra and Dr Campbell. On one view there is not much between them. Both in effect believe that Mary was paranoid. Dr Campbell believes this was part her personality. Dr Mahapatra believes the paranoid personality was a disease of the mind that gave rise to the delusions. It is part of Dr Campbell's view that Mary was not suffering from delusions. I prefer the views of Dr Mahapatra. In my view Mary's paranoia was a disease of the mind and did give rise to irrational and delusional beliefs about her children (and others).
184. In all the circumstances I have come to the conclusion that it is more probable than not that Mary did believe that the allegations that she was making were true.

Testamentary Capacity.

185. I shall not repeat the summary of the law on mental capacity. It will be recalled from Banks v Goodfellow that it is necessary that the testator

[a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

186. It is common ground that Mary understood she was making a Will. It is common ground that she knew that she was possessed of Chapel Farm and moneys in her bank accounts. It is common ground that she was well aware of the claims of her children. Thus the sole issue is that raised in paragraph [d] of the formulation or (to borrow the formulation from paragraph 69 of Sharp v Adam) whether Mary's human instincts and affections, or her moral sense, had been perverted by mental disease.
187. I am very conscious that Mr Joslin – an experienced and careful probate solicitor – and Dr Whitcher - Mary's GP both were completely satisfied that Mary was of sound mind. However Dr Whitcher based his opinion on a medical examination five weeks earlier on an unrelated medical matter. He based his assessment on Mary's ability to answer his questions appropriately and his ability to make an assessment of her circumstances and orientation. He was not aware that the will cut out her children. He did not carry out any formal assessment. I am conscious of the passage in the judgment of May LJ in Sharp v Adam already quoted. I note that in that case the Court of Appeal upheld a decision of a judge who had set aside a will made in the presence of a solicitor and a medical practitioner and that it is only in rare cases and after much anxious thought that a Court will set aside a Will in such circumstances.
188. I am conscious that the only reference in the medical notes to any psychiatric illness on the part of Mary is the note made when Mary was complaining about dust mites.
189. I am also conscious that Mr Joslin felt that Mary was able to execute the EPA's in 1999 and 2004 and that the family took no steps to register the 2004 EPA. However the family were at that time unaware that Mary had a made the will cutting them out. In any event as Willie pointed out the family are not psychiatrists.
190. To my mind the evidence plainly points to the fact that Mary's motive in making the Will was to cut out her children rather than to benefit NOS. This emerges clearly from the file notes. There was no rational reason for her to cut out all her children. Plainly therefore her affections to her children were poisoned. This, too, emerges from the file notes. I have set out the allegations above. In addition there are references to the children "not deserving her money". As set above the allegations she made about her children which she gave as a reason for cutting them out were untrue but were believed by Mary to be true. They were, in my view delusions.
191. Those beliefs did so poison her mind so as to cause her to cut her children out of her Will. There was a strong moral obligation in all the circumstances of the case to leave the estate to the family. In my view she would not have cut out her family but for those beliefs.
192. It follows in my view that Mary did not have testamentary capacity. I would revoke the grant of probate.
8. Estoppel/Constructive trust
193. In the light of my views on testamentary capacity any views I express on estoppel are obiter. Furthermore, as will appear below, until the House of Lords delivers its judgment in Thorner v Curtis there is necessarily some uncertainty as to the law. However as the matter has been fully argued and as there is the possibility that the claim may go further it is right that I should express my views on this aspect of the case, albeit in less detail than I would have if it had formed part of my decision.

8.1. The Law

Estoppel

194. The Claimants seek to establish a right to inherit Chapel Farm by proprietary estoppel. There have been a number of such cases reported in the last 20 years. They are summarised in paragraph 34 of the judgment of Lloyd LJ in Thorner v Curtis [2008] EWCA 732:

34. The first reported case in which the principle was applied to such facts seems to be Re Basham deceased [1986] 1 WLR 1498, a decision of Mr Edward Nugee Q.C; it is the earliest case on this point mentioned in the fourth edition of Spencer Bower. Since then, there have been successful claims in cases including Wayling v Jones (1993) 69 P&CR 170, Gillett v Holt [2001] Ch 210, Campbell v Griffin [2001] EWCA Civ 990, Jennings v Rice [2003] 1 P&CR 100, Grundy v Ottey [2003] EWCA Civ 1176 and the present case, and an unsuccessful claim in Uglow v Uglow [2004] WTLR 1183, where arrangements made during the life of the landowner were held to be sufficient in the circumstances. A claim was unsuccessful in Taylor v Dickens [1998] 1 FLR 806, but that decision has since been disapproved, and I need not mention it further.

 Thorner v Curtis is an important case. In it T worked unpaid for his cousin P for the best part of 30 years. While there were no express representations or assurance still less a promise P's remarks led T to hope from the mid 1980's that he would inherit the estate. The hopes ripened into an expectation one day in 1990 when P handed him a Prudential bonus notice and told him they were intended to pay death duties. By 1999 there was an unspoken mutual understanding that T would inherit the estate. In 1997 he made a will giving his residuary estate to T but he later revoked the will. After his death P sought to establish by way of proprietary estoppel that T's estate was bound to honour T's intention that P should inherit the estate.

195. At first instance the claim succeeded. John Randall QC held that what was said over the Prudential bonus amounted to an assurance to P that he would inherit and this was encouraged by later manifestations of the mutual understanding. P had acted to his detriment by giving up other opportunities and devoting considerable unpaid time in the expectation of inheriting.
196. However the estate's appeal was allowed. While a representation could in principle be made partly or wholly by conduct it had to be a representation which could be categorised as a promise or assurance. It had to be clear and unequivocal and intended to be relied on.
197. P appealed to the House of Lords. The appeal has been argued but judgment has been reserved. I was, however, told that Counsel for P was not called on to reply to the Respondent's submissions so that there is an inference that the appeal will be allowed. The analysis of the Court of Appeal has to be considered in this light.
198. In the course of his judgment Lloyd LJ carried out a full review of the authorities. In paragraph 50 he cited guidance given by Mummery LJ in Uglow:

"9. The general principles expounded in those cases [Gillett v Holt and Jennings v Rice] are relevant to the instant case in the following respects.

(1) The overriding concern of equity to prevent unconscionable conduct permeates all the different elements of the doctrine of proprietary estoppel: assurance, reliance, detriment and satisfaction are all intertwined.

(2) The broad inquiry in a case such as this is whether, in all the circumstances, it is unconscionable for a testator to make a will giving specific property to one person, if by his conduct he has previously created the expectation in a different person that he will inherit it.

(3) The expectation may be created by (a) an assurance to the other person by the testator and intended by him to be relied upon that he will leave specific property to him; (b) consequent reliance on the assurance; and (c) real detriment (not necessarily financial) consequent on the reliance.

(4) The nature and quality of the assurance must be established in order to see what expectation it creates and whether it is unconscionable for the testator to repudiate his assurance by leaving the property to someone else.

(5) It is necessary to stand back and look at the claim in the round in order to decide whether the conduct of the testator had given rise to an estoppel and, if so, what is the minimum equity necessary to do justice to the claimant and to avoid an unconscionable or disproportionate result.

(6) The testator's assurance that he will leave specific property to a person by will may thus become irrevocable as a result of the other's detrimental reliance on the assurance, even though the testator's power of testamentary disposition to which the assurance is linked is inherently revocable."

199. In paragraph 54 Lloyd LJ said:

54. Accordingly, while there is no special rule as to the form or nature of the promise, representation or assurance which is capable of providing the basis of a proprietary estoppel case as regards a claim against a deceased's estate, it seems to me that the general requirements that there must be a clear and unequivocal representation, and that it must be intended to be relied on, or at the very least that it must be reasonably taken as intended to be relied on, are of no less importance in this type of case than in others, and they must be applied with care, given that statements may be made about testamentary intentions which are not necessarily intended to be taken as promises. The proposition which is the basis of the first ground of appeal is partly justified. It is argued that a proprietary estoppel claim of this kind cannot be based on conduct or standing by, or anything less than a clear promise or assurance that the claimant will inherit. I agree that there must be a representation which can be categorised as a promise or assurance. In principle, that representation could be made by conduct, or partly by conduct, as well as by words. In whatever way it is made, however, it must be clear and unequivocal, and it must be intended to be relied on.

200. At paragraph 74 Lloyd LJ summarises his reasons for allowing the appeal:

74. In my judgment, viewed in that way, and in the light of what I have said above about proprietary estoppel claims of this kind, David's claim in the present case does not satisfy the tests for such a claim, because the statement made implicitly in 1990, as recorded by the judge, did not amount to a clear and unequivocal representation, intended to be relied on by David, or which it was reasonable for him to take as intended to be relied on by him. The various later matters relied on do not, it seems to me, add to the strength of David's case. None of them is different in nature from what was said and done in 1990; none is express, so that they are either weaker than the earlier implicit statement, or at best no stronger.

201. As noted above there is an inference that the House of Lords will allow the appeal. It is not, however, clear whether the appeal will be allowed because it disagrees with Lloyd LJ's statement of the law or his application of the law to the facts of the case. I was, however, informed that the issue on which the appeal concentrated was the question whether the Court of Appeal were entitled to interfere with the findings of fact of Mr Randall QC and that the analysis of the law in Lloyd LJ's judgment can be regarded as authoritative.

8.2. Section 2 of the Law of Property Act 1989

202. In the course of his submissions Mr Warner drew to my attention to paragraph 29 of the judgment of Lord Scott in Cobbe v Yeoman's Row [2008] 1 WLR 1752. That paragraph contains a discussion, not necessary for the decision in the case, as to whether a contract for the sale of an interest in land can be enforced by proprietary estoppel if the necessary formalities have not been complied with. It was Lord Scott's view that proprietary estoppel could not be prayed in aid in such a case.
203. Mr Blackett-Ord submitted that the facts in Cobbe (involving as they did) an attempt to enforce a commercial contract were very different from this situation. He submitted that the proprietary estoppel claim in a case such as this did not depend on contract and that section 2 had no application.
204. Any views I express would necessarily also be obiter in the light of my finding on testamentary capacity. The fact that the appeal in Thorner is to be allowed is to my mind an indication that Mr Blackett-Ord's submissions are correct. Otherwise it is difficult to see how the claim in that case could succeed. After the conclusion of the argument in the case Mr Warner referred me to the recent decision of Jack J in Brightlingsea Haven Ltd v Morris [2008] EWHC 1928. That case contains a detailed analysis of the judgments in Cobbe and to the section 2 issue. This is not the place to deal with it in detail. Suffice it to say that Jack J decided section 2 was not a bar to the type of proprietary estoppel he was considering.

8.3. Discussion

205. The facts of this case are very different from those in Thornton v Curtis. So far as Helen and Margaret are concerned there was never a promise or an understanding that Chapel Farm would be left to them or either of them. The highest that Helen put it was that there was an understanding that it would be left "through the generations". In evidence she said it would remain with the family which is much the same thing. Margaret's evidence was somewhat different. According to Margaret her father said different things at different times. Certainly she does not seem to have been under an expectation that she would necessarily inherit.
206. Equally it is plain that neither Helen nor Margaret have carried out any work on the farm itself. Although, as I have held, both Helen and Margaret visited their mother regularly and (especially Margaret) helped her with housework it is, to my mind difficult to find that this was in reliance on any belief that they would inherit the farm. In all the circumstances I do not think there was any promissory estoppel in favour of either Helen or Margaret.
207. In my view there was no sufficient assurance by Francis and/or Mary to Helen or Margaret and intended to be relied upon that he or either of them would leave specific property to them.
208. There are also significant differences between this case and Thornton v Curtis so far as Jimmy and Willie are concerned. When Willie gave evidence he could not remember a single conversation with his father when any promises were made to him. He simply assumed that the farm would be passed to him; Jimmy on the other hand relies on a single conversation in 1957 or 1958 when he was considering the business venture with an estate agent.
209. Whatever the effect of that conversation it has to be remembered that Francis took his two sons into partnership in 1962 and continued in partnership until they dissolved it in 1985 to 1987. On dissolution there was a division of the partnership assets; Francis retaining only Chapel Farm (which never was a partnership asset).
210. The contents of Francis's wills made between 1974 and 1991 lend little support for the suggestion that he intended to leave the farm to Jimmy and Willie. It will be remembered that in 1974 he left Chapel Farm to his daughters subject to a life interest in favour of Mary. In 1989 he left nothing to his two sons. In 1991 he left his sons one sixth of his estate if he did not survive Mary.
211. In my view any equity that may have arisen in favour of the sons was satisfied in 1987 on the dissolution of the partnership. In the course of the trial Mr Blackett-Ord conceded that there was – at least – a partial satisfaction of any such equity although he did not put it in quite the same terms as I have.
212. The matter does not end there because Jimmy has been looking after Chapel Farm without pay since at least 1992. I am satisfied that he did that in the expectation that he would inherit at least a substantial share in Chapel Farm. That expectation must have been appreciated by Mary who, I am satisfied, did from time to time indicate that the family would inherit. In those circumstances I do think it was inequitable or unconscionable to leave Chapel Farm outside the family without compensating Jimmy for his work over the years. Jimmy has estimated the value of his work at about £10,000 per annum. No-one has suggested that that is an unreasonable sum. I strongly suspect that a commercial land agent might well have charged more. I would not have limited the claim to the 7 years claimed by Jimmy in his invoice. I would have allowed Jimmy compensation at the rate of £10,000 per annum from 1992 to 2006. I would have invited argument on whether to allow interest on top of that sum.
9. Constructive Trust.
213. Mr Blackett-Ord added this claim by amendment as an answer to the point raised under section 2 of the Law of Property Act 1989. As I do not think section 2 is a bar to the estoppel claim it is not necessary to deal with the claim. My provisional view, however, is that there is much force in the objections to a constructive trust as set out in Mr Warner's closing submissions.
10. Conclusion
214. In my judgment :

1. Mary did not have testamentary capacity and the grant of probate to the Will dated 7^th October 1998 must be revoked.

2. Mary died intestate.

3. The claim based on proprietary estoppel fails save to the limited extent set out above.

11. Addendum
215. The draft judgment was sent to Counsel on 4^th March 2009. It was not possible to list the handing down of the judgment until 31^st March 2009. On 25^th March 2009 the House of Lords delivered judgment in Thorner v Curtis [2009] UKHL 18. As anticipated the appeal was allowed. Although I have not had the benefit of any argument on the decision I would make the following provisional comments:

1. It seems plain that the decision of the House of Lords in Cobbe has not extinguished or even curtailed the doctrine of proprietary estoppel in familial inheritance type cases. See, for example, Lord Walker at paragraph 31 and Lord Neuberger at paragraphs 90 to 98

2. The speeches give valuable guidance on the extent of the assurance necessary to found an estoppel in this sort of case. A central passage occurs in the speech of Lord Walker at paragraphs 56 to 59 and to his citation from Hoffmann LJ in Walton v Walton at paragraph 16. As Lord Walker pointed out the assurance must be "clear enough" and this depends hugely on context.

3. In paragraph 99 Lord Neuberger expressed the view that section 2 of the Law of Property (Miscellaneous Provisions) Act had no impact on a straightforward estoppel claim without any contractual connection.

216. In the result the speeches in Thorner do not affect the conclusions I have reached in section 8.3 above. I am still of the view that there was not a sufficiently clear assurance given to either Helen or Margaret to found an estoppel. I am still of the view that any estoppel in favour of Willie was satisfied on the dissolution of the partnership and that the only estoppel in favour of Jimmy is as set out in paragraph 213 above.

JOHN BEHRENS

Tuesday 31 March 2009

Note 1   I propose, I hope without offence, to refer solely to Mr Blackett-Ord in this judgment. I recognise however the part played by Mr Baxter in the opening and closing submissions and, no doubt, throughout the trial.    [Back]

Note 2   Precise figures are not available. In the course of his evidence Jimmy said that a 40 acre farm was bought in 1967 at the time of his marriage and that a 196 acre farm was bought in 1971 for £45,000.    [Back]

Note 3   See for example the note for 28/11/1994, where part of the note reads “claims son struck her some months ago”, the notes for 20/8/1996 and 3/9/1998 where the note reads :”family are all ganging against me because of money”    [Back]

Note 4   Sharp v Adam [2006] WTLR 1059; Scammell v Farmer [2008] WTLR 1261 and Re Wilkes [2006] WTLR 1097    [Back]