Barnaby v Johnson [2020] WTLR 67

WTLR Issue: Spring 2020 #178

MR BRADFORD BARNABY MR ALPHONSO CONSTANTINE WYNTER (as personal representatives of the estate of Mrs Maudlin Bascoe)

V

MS PATRICIA JOHNSON (also known as Patricia Smith)

Analysis

Mrs Maudlin Bascoe (T) died on 29 August 2015. Cs sought to prove a will dated 27 April 2005 (the 2005 will) naming them as executors. C1 was T’s son. C2 was T’s former solicitor and the draftsman of her wills from 1988 2005. D was T’s daughter. T also had two other children – a son, G, (who pre-deceased her) and a daughter, B (who died after T in 2017).

Under the 2005 will, D received a legacy of £100. There was an earlier will dated 25 October 1992 (the 1992 will) leaving D a legacy of £10,000 the validity of which D did not dispute at trial.

D challenged the 2005 will, alleging lack of testamentary capacity, undue influence by C1, forgery of T’s signature, and lack of knowledge and approval.

In 2002, T had called into C2’s offices to discuss her will and transfer property into joint names with herself and G. Nothing then happened until 8 July 2003 when T met with C2 and asked him to redraft her will by which G was to receive £109,000, C1 was to receive £75,000, and D and B were to receive £4,000 each. T, however, changed her mind. Attendance notes showed that she increased B and D’s legacies to £10,000 each. However, the resulting draft appeared not to have been executed. A clause in the draft contained an ‘explanatory note’ stating that B and D had received reduced amounts because they had shown little care or concern for T in recent years and had ben violent and abusive toward her. This was also reflected in an undated will questionnaire form.

On 14 April 2005, C2 wrote to T following conversations with her and C1. C2 offered to again take instructions with a view to updating her will and said that he had prepared a fresh power of attorney in favour of C1 which he would go through when he visited her at home.

There were no attendance notes in evidence as to the drafting of the 2005 will. However, C2 gave evidence that he had seen T at his office and at her home and that, while C1 came with T to his offices, he spoke to her alone at length to ascertain her wishes and that C1 was not present for the home visit. He also gave evidence that there was no question in his mind of undue influence or lack of capacity, and that he had read the 2005 will out to T.

The differences compared to the 2003 draft were C1 replacing G as executor, the removal of a specific legacy, and some alterations in the pecuniary legacies. D’s legacy was reduced to £100 and B’s to £50. Subject thereto, T’s assets were bequeathed to C1. A nearly identical explanatory note was included. This will was executed and witnessed by a solicitor and receptionist. The attesting solicitor could not recall the will but confirmed that her signature appeared to be genuine. The receptionist could not attend trial due to ill health, but her witness statement said she recalled a will and confirmed that her signature was genuine and that T did not say or do anything to indicate that she did not know where she was or that she was executing a will.

D claimed that T had told her that C1 had threatened and forced her (T) to execute the 2005 will, and that the 2005 will had not been validly attested because a change had been made to the date in manuscript. D led evidence from a Mr Kerr (D’s ex-husband) who said that, the day after the 2005 Will was executed, Mr Kerr was called by T and asked to come to her home where she told him that C1 was attempting to ‘thief the house’, and that they had then gone to C2’s offices where C2 had made a threat to Mr Kerr which caused him to leave. In cross-examination, however, Mr Kerr said that these events took place in 2007, not 2005.

D alleged that T suffered from dementia from 2001 or 2003. However the medical evidence indicated that T had been suffering from confusion in early 2008, was diagnosed with vascular dementia in February 2009, retained capacity in June 2011 to make a Lasting Power of Attorney, but had lost the capacity to make a will as at April 2012. D alleged that the records were not those of her mother.

D also alleged that the signature on the 2005 Will did not look like that on T’s passport, and that T’s first name was ‘Maudline’ but was written as ‘Madline’ in the signature. However, D admitted that she did not have training in handwriting analysis, and Cs’ evidence was that T also used the name Madline.

D finally alleged that she had seen a will dated 2013 which had then be returned to T’s solicitors. This was supported by an undated witness statement from B’s son. However, the solicitor’s files suggested that the will did not proceed because T had lost capacity and no drafts were produced.

Held (allowing the claim):

Hearsay evidence

The receptionist’s statement should be given considerable weight, applying the factors in s4(2) Civil Evidence Act 1995. She would have given evidence but for her hospitalisation, the statement was not contemporaneous, there was no multiple hearsay, she had no motive to conceal or misrepresent matters, there was no suggestion it was an edited account or made for another purpose, and there were no circumstances to suggest an attempt to prevent proper evaluation of its weight (at [65]). In addition, it accorded with C2 and the witnessing solicitor’s evidence, the act of attestation was inherently likely given that she had attested a previous will and was acquainted with T, and it was very doubtful that cross-examination would undermine her evidence (at [66]).

Amendments

While manuscript changes had been made to the date of the 2005 Will, they had been initialled by T, and in any case there was nothing untoward in correction of a typographical error given that the front sheet contained the correct date (at [102]).

Testamentary capacity

The 2005 will was duly executed with an attestation clause. While the attesting solicitor could not recall the attestation, she considered it to be hers and she had never witnessed a will if the testator/testatrix had not signed it. There was no reason to doubt her evidence. Her lack of recall about the physical signing did not displace the presumption of capacity raised by due execution and a rational will (at [95] applying re Key [2010] 1 WLR 2020, Sherrington v Sherrington [2005] WTLR 587, and Wright v Rodgers (1869) LR 1 PD 678).

The burden was therefore on D to demonstrate real doubt about T’s capacity. Contemporaneous documentary evidence undermined her allegations, and even D accepted that T retained capacity to execute a lasting power of attorney in July 2011 (at [99]-[100]). D’s attack on the medical records were fanciful and wholly unwarranted ([21] and [22]).

Even if the burden were on Cs, they would have discharged it through the comprehensive medical records and C2’s evidence (at [107]).

Forgery

Cs’ evidence was that T used the name ‘Madline’. T’s medical records referred to her as ‘Medeline’, and the lasting power of attorney in 2011 named her as ‘Maudline’ but was signed ‘Madline’. The solicitors’ files from the abortive 2013 will also refer to three different spellings of the name. These differences were commonplace and D’s complaint was therefore baseless (at [104]).

The 2005 will was drafted by C2, who knew T as a long-term client. His evidence was that he had read it out to her before she was seen by two members of his staff to complete the attestation. The receptionist witness recalled the event, and the solicitor witness confirmed it was her signature and that she would not have signed without seeing T sign. If D’s allegation of forgery were correct, all three would need to have been party to the fraud. D had declined the opportunity of adducing expert evidence. The allegation therefore had no basis and should never have been made (at [122]).

Undue Influence

D adduced no direct evidence of undue influence other than an allegation about an incident (denied by C1) on 9 August 2009 in which T was said to have been hospitalised by C1. This allegation was highly improbable given the lack of any independent medical or police record and the lack of any further action being taken by the family (at [110). In any event, one incident post-dating a will by 4 years cannot amount to evidence of undue influence (at [110]).

Mr Kerr’s evidence also failed to prove undue influence. There was no contemporaneous evidence to support his allegation, and he was wrong about the crucial date. On the balance of probabilities, the date must have been suggested to him, and the only person likely to have done so was D (at [112]).

D’s evidence that T had told her on 27 April 2005 that she had been forced by C1 to execute the 2005 will did not bear examination. In cross-examination she had admitted that she did not know of the 2005 will until 2015, and that she had no recollection of the date 27 April 2005 but had instead taken it from the 2005 will itself, and she did not do anything about these events at the time or record her concerns (at [116-117]).

Knowledge and approval

The preferable approach is to ask a single question: did T understand (a) what was in the will when she signed it, and (b) what the effect would be (at [124] applying Gill v Woodall [2011] WTLR 251 ([2011] Ch 380). There was no evidence from D about the time instructions were given by T to C2 (at [125]), and a strong presumption arises from C2’s evidence that T gave him instructions for the 2005 will alone and that he read it out to her, and from the fact that T signed it in front of the attesting witnesses (at [126]). This challenge was therefore dismissed.

The alleged 2013 will

The court could not accept that either a draft or executed will was made in 2013 (at [131]). The solicitors’ evidence was that no will was made, and their file showed that this was because T did not have capacity. In addition, D’s account of the 2013 will (alleging that C1 was the residuary beneficiary) is inconsistent with the file which stated that Mr Williamson (B’s child) was to be the prime beneficiary). Mr Williamson’s evidence that he had returned the 2013 will to T’s solicitors was rejected.

JUDGMENT Deputy Master Linwood [1] Mrs Maudlin (also known as Madline) Bascoe (‘Mrs Bascoe’ or ‘mother’ according to usage) died on 29th August 2015, a few days before what would have been her 97th birthday. She had worked as a seamstress after her arrival in London in the 1960s from her place of birth, Jamaica. …
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Counsel Details

Toby Bishop (5 Stone Buildings, Lincoln’s Inn, London, WC2A 3XT, Tel: +44 (0)20 7242 6201, e-mail: 5sblaw.com) instructed by Hodders Law Ltd (50 Station Road, Harlesden, London, NW10 4UA, Tel: +44 (0) 808 168 8677, e-mail: enquiries@hodders.co.uk) for the Claimant.
The Defendant appeared in person.

Cases Referenced

Legislation Referenced

  • Civil Evidence Act 1995, s4.