Markou and Another v Goodwin & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nugee |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] EWHC 4570 (Ch) |
| Date | 27 November 2013 |
| Court | Chancery Division |
| Docket Number | Claim No: HC11C04557 |
[2013] EWHC 4570 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Nugee
Claim No: HC11C04557
Miss S Brown appeared on behalf of the Claimants.
Mr S Redmayne appeared on behalf of the Defendants.
Approved Judgment
Wednesday, 27 November 2013
This is the trial of a probate action. Mrs Eileen Nora Rand (née Goodwin) died on 4 November 2007 aged 79. There are two wills in contention. The claimants propound a will dated 25 June 2007 ("the 2007 Will") and the defendants propound a will dated 18 December 1969 ("the 1969 Will"). The central question I have to decide is whether the 2007 Will is a valid will. This turns largely on whether Mrs Rand had testamentary capacity at the time that she executed it. There is also a question whether she knew and approved the contents of that will.
Mrs Rand was born in 1928. She was the middle one of three children. They were brought up in Edmonton in North London, and she lived there all her life. She had an older brother, Horace (known as Bill), who was born in 1924 and about 5 years older than her, and a younger brother, Derek, who was born in 1934 and about 5 years younger. Her older brother Bill was married twice. He divorced his first wife in 1965. In 1968 he married Lillian (known as Pat), who knew the family well as she had been best friends with Eileen since they were at school together. Bill Goodwin died in April 2007, survived by his widow Pat, who gave evidence before me. There were no children of either marriage. Mrs Rand's younger brother, Derek, survived her. He is the first defendant, and also gave evidence before me, as did his wife, Julie. In about 1967, Eileen, who was then 38 met and fell in love with Edward Rand (known as Ted). He was a good deal older than her and was then a widower, his first wife Elsie having died in February 1966. Eileen and Ted were married on 26 August 1967, after what Pat described as a "whirlwind" relationship, and she went to live with him at his house, 99 Charlton Road, also in Edmonton, which he was the freehold owner of. Mr Rand, however, did suddenly in November 1968 after they had been married for less than 15 months. Mrs Rand inherited the house from him and continued to live there until shortly before her death. After her mother died at the end of 1972 her father came to live with her, but after his death in 1985 she lived there on her own.
Ted Rand and his first wife had a daughter, Sheila, who was born in 1935 and so was not much younger than Eileen. She was brought up in 99 Charlton Road, but had already left home and was herself married by the time her father and Eileen got married. She is the second defendant. Her husband was David Woolvin. I was told he died in 2008, and I was told, although there was no formal evidence, that she is the executrix and beneficiary of her husband's estate. Sheila Woolvin had one child, a daughter Sharon (now Mrs Sharon Martin), who is the third defendant and who gave evidence before me. Mrs Woolvin herself is now in her late seventies and although she signed a witness statement on 25 February of this year, she defends this action by her daughter Sharon as her litigation friend, her GP having confirmed on 1 March that she suffers from short term memory loss and lacks mental capacity under the Mental Capacity Act 2005. She did not, in the event, give oral evidence before me, and in her evidence Mrs Martin explained that her mother is currently in hospital, that she had a stroke 20 years ago, and was diagnosed with vascular dementia in December of last year.
I had evidence of two successive wills made by Mr Rand. The first was made on 1 March 1966, i.e. very shortly after his first wife died, and before he married Eileen. In it he appointed his daughter Sheila and her husband David as his executors, and left all his estate to them in these terms:
"My said daughter, her said husband and her daughter Sharon, and any other of her child or children living at the date of my death and who shall attain the age of 21 years, or being female marry under that age, if more than one, in equal shares absolutely."
The second will was made on 15 September 1967, i.e. shortly after he married Eileen. In it he left his entire estate to Eileen and appointed her sole executrix if she should survive him, but, if not, he left his estate to Sheila, her husband and daughter, and any other children of hers, in terms identical to those of his 1966 will.
As I have said, Ted Rand died in November 1968. On 8 September 1969 Mrs Rand made the 1969 Will. Apart from the claimant's contention that it has been revoked by the 2007 Will, it has not been suggested to me that there is any other reason to doubt its validity. It appears to be signed, on its face, by Mrs Rand and two witnesses described as clerks at Windsor & Co, the firm of solicitors who appear to have drawn up the will. They retained the original, and produced it after her death. I see no reason to doubt that it was duly executed and, subject to the question of revocation, is valid. Its terms, so far as relevant, can be summarised as follows. By clause 2 Mrs Rand appointed her brothers, Bill and Derek Goodwin, as her executors and trustees. By clause 3 she demised the freehold house at 99 Charlton Road, which she had by then inherited from her late husband's estate, on trust for sale with the net proceeds to be divided into two. She left one half to "such of Sheila Woolvin and her husband David Woolvin and such of the children of Sheila Woolvin as shall be living at the date of my death and respectively attain the age of 21 years and, if more than one, in equal shares absolutely." This wording is very similar to the wording in her husband's two wills, and I infer that it is likely to have been taken from them. She left the other half to such of her brothers Bill and Derek as should survive her, with the substitution of Derek's children if he should predecease her. By clause 4 she left the residue of her estate to her brothers in similar terms.
In the events which have happened, if the 1969 Will is her true last will, the practical effect is that Mr Derek Goodwin is appointed executor. He takes half the proceeds of the house and any residue, and the other half of the proceeds is divided two thirds to Mrs Sheila Woolvin, one third in her own right and one third as beneficiary of her husband's estate, and one third to Mrs Martin. There is nothing to suggest that Mrs Rand made another will until nearly 40 years later, in 2007. As I have already said, she was then living alone in the house at 99 Charlton Road. On 27 April of that year her older brother Bill died. On 23 May she was admitted to the North Middlesex University Hospital in North Middlesex following a fall. She was discharged a couple of weeks later on 7 June and returned home. Late on 21 June she was admitted again to North Middlesex. She was then very ill with acute renal failure and was admitted to the intensive care unit (ICU). She was discharged from the ICU on 7 July 2007 and transferred to the Charles Coward Ward. She was discharged from hospital on 17 August 2007 to a nursing home. She never returned home, and died in the nursing home on 5 November 2007.
Between these two hospital admissions she was home for two weeks, from 7 to 21 June. During this time the 2007 Will was executed. I will have to consider the evidence as to its preparation and execution in more detail in due course, but, in summary, instructions were taken for the will on 15 June 2007 by Mr Markos Markou. He then prepared the will, and it was signed on 20 June 2007. Its terms can be summarised as follows. In the opening words Mrs Rand revoked all former testamentary dispositions. By clause 1 she appointed Mr Markou and Mr Nicholas Efthymiou as her executors and trustees. Mr Efthymiou is the husband of Androulla Efthymiou, who is a beneficiary under the will. Mr Markou and Mr Efthymiou are the first and second claimants in their capacity as executors under the 2007 Will. Each gave evidence before me. By clause 2 Mrs Rand left her entire estate to her brother Derek Goodwin and Androulla Efthymiou, if she should survive her for 28 days. Mrs Efthymiou was a neighbour of Mrs Rand's, who, as appears below, had become a friend and carer for her over the years immediately preceding her death. She is the third claimant and also gave evidence. Clause 3 contained a provision containing substitutionary gifts to be issued to Mr Derek Goodwin and Mrs Efthymiou in the event of their not surviving Mrs Rand for the requisite period. Clause 4 conferred certain powers on Mrs Rand's trustees in the event of a person under age having a beneficial interest in the estate. Clause 5 contained a charging clause in conventional terms authorising the trustees to employ any of their number engaged in a profession, and providing that anyone so employed would be entitled to take fees for so acting. The will is signed by Mrs Rand and by two witnesses: Mrs Anna Gregoriou and Mr Christos Christou. As appears from their names, both are members of the Greek or Greek Cypriot community in North London, as are Mr and Mrs Efthymiou and Mr Markou. Mrs Gregoriou and Mr Christou each gave evidence before me. In the events which have happened, therefore, the effect of the 2007 Will, if valid, was to appoint Mr Markou and Mr Efthymiou as executors, and leave Mrs Rand's estate to be shared equally between Mrs Efthymiou and Mr Derek Goodwin.
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