Mr Bradford Barnaby v Ms Patricia Johnson (also known as Patricia Smith)
| Jurisdiction | England & Wales |
| Judge | Master Linwood |
| Judgment Date | 09 December 2019 |
| Neutral Citation | [2019] EWHC 3344 (Ch) |
| Date | 09 December 2019 |
| Docket Number | Case No: HC-2017-001248 |
| Court | Chancery Division |
[2019] EWHC 3344 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the Estate of Mrs Maudlin Bascoe (deceased)
The Rolls Building
Fetter Lane, London, EC4A 1NL
DEPUTY Master Linwood
Case No: HC-2017-001248
Mr Toby Bishop (instructed by Hodders Law) for the Claimants
The Defendant in person
Hearing dates: 26 th, 27 th and 28 th November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Maudlin (also known as Madline) Bascoe (“Mrs Bascoe” or “mother” according to usage) died on 29 th August 2015, a few days before what would have been her 97 th birthday. She had worked as a seamstress after her arrival in London in the 1960s from her place of birth, Jamaica. One of her four children predeceased her; Gresford Alexander Williams, who died on 21 st October 2004. One died after her; Beverley Smith, on 7 th March 2017. Her surviving son is the First Claimant (“Mr Barnaby”) who is also the co-executor and residuary beneficiary of her estate. Her surviving daughter, Patricia Johnson, also known many years ago as Patricia Smith (“Miss Johnson”) is the Defendant.
Mr Barnaby has three children; Wayne, Suzette and Keniely. Miss Johnson has with her former husband Owen Kerr three children as well — Elaine, Chantelle and Christopher. Beverley Smith had one child, Robert Williamson. Gresford Williams had one child, Deniece Williams.
The Second Claimant (“Mr Wynter”) was Mrs Bascoe's solicitor for some 17 years before she died. He is the co-executor and draftsman of her wills from 1988–2005. He takes a neutral position in these proceedings.
The Claim in Essence
This claim is brought to propound Mrs Bascoe's last will dated 27 th April 2005 (“the 2005 Will”). Miss Johnson disputes the validity of the 2005 Will, whereunder she is to receive a pecuniary legacy of £100. She initially in her first Defence disputed the validity of her mother's previous will executed on 15 th October 1992 by which she was to receive £10,000. However, at the hearing before Deputy Master Lloyd on 21 st May 2019 Miss Johnson's counsel conceded the validity of the 1992 will. Paragraph 4 of the Order of Deputy Master Lloyd of 21 st May 2019 provides “The claim is to proceed on the basis that there is no challenge to the validity of the 1992 Will, Miss Johnson did not appeal neither that Order. Nor did she apply to withdraw that admission.
The issues I am to determine as to the 2005 Will, as set out by Deputy Master Lloyd in his said Order are:
a) Testamentary capacity;
b) Undue influence by Mr Barnaby;
c) Forgery of Mrs Bascoe's signature;
d) Want of knowledge and approval by Mrs Bascoe of the terms of the 2005 Will.
Below I summarise the witness and documentary evidence as to the various wills and the medical records. I then summarise the evidence of the 9 witnesses who were called. I next turn to the law, my findings of fact for each issue and my decision. First however there is a discrete matter I should deal with, namely the participation of Miss Johnson in the trial. Mr Bishop submitted that Miss Johnson is currently in breach of the order of Deputy Master Henderson of 23 rd October 2019 that she should file and serve in a witness statement evidence as to “…any will or copy of a will or instructions for a will…” failing which she be debarred from defending, subject to any order I may make.
Miss Johnson only filed evidence regarding an alleged will of 2013. Mr Bishop in his helpful skeleton has set out other breaches by her of Orders of this Court but states that Mr Barnaby does not oppose relief in circumstances where it appears this arose from her misunderstanding. In summary, there is no application for relief, and on the first limb of Denton v TH White Ltd [2014] EWCA Civ 906 this is a serious and significant breach. There is no explanation so I turn to all the circumstances, including those matters set out at CPR 3.9. Most importantly, as Mr Bishop submits, the Claimants have suffered no prejudice and have prepared for a defended trial.
On that basis I think it important to avoid at this very late stage any prospect of satellite litigation if I found Miss Johnson should not participate in the trial; to do so would in my judgment be contrary to the Overriding Objective. It would amount to unfairness to Miss Johnson if she was unable to address me on her challenges to the 2005 Will, those challenges being identified and crystallised at an early stage in these proceedings. At the end of Mr Bishop's opening I said that the trial would proceed and I would give my reasoning in this judgment.
The creation of the Wills
Mr Wynter's unchallenged evidence is that Mrs Bascoe first approached his firm, Hallmark Carter Atkinson Wynter, subsequently Hallmark Atkinson Wynter (“HAW”) in 1988 to make a new will, to replace one made with another firm of solicitors. Both the latter will and that drawn up by him were he believes destroyed long ago. HAW were local to Mrs Bascoe, practising in Brixton from premises on Brixton Road. Mrs Bascoe at all times lived at 29 Lambert Road, Brixton Hill, which was a property owned by her.
In 1992 Mrs Bascoe instructed Mr Wynter to draft a new will, by which she left a number of pecuniary legacies to members of her family, including £10,000 to Miss Johnson. A Mr Peter Winn was appointed executor. Mr Wynter and Ms Fay Watson, receptionist at HAW, were the attesting witnesses on 15 th October 1992.
An attendance note by a member of Mr Wynter's firm records that on 22 nd January 2002 Mrs Bascoe called in to their offices to discuss her will and transfer of her above property into the names of herself and Gresford. Nothing more seems to have happened as to the will until on 8 th July 2003 Mrs Bascoe met with Mr Wynter and asked him to redraft her will, by which Gresford was to receive £109,000, Bradford £75,000 and each of her daughters, Beverley Smith and Miss Johnson, £4,000.
Various attendance notes then set out how Mrs Bascoe changed her mind as to the pecuniary legacies which, one note records, were increased or restored for Beverley Smith and Miss Johnson to £10,000 each. This will appears never to have been executed. Clause 14 is headed “EXPLANATORY NOTE” and states “I have deemed it prudent to place within my will a note explaining the disparity in the amounts that I have left to my children and in particular the pecuniary legacies to my daughters Beverley and Patricia. Both my daughters, Beverley and Patricia, have shown very little care and concern for me in my later years and in particular they have both been rude, unpleasant and in some instances physically violent and abusive towards me and have verbally expressed their lack of care and concern with such statements as ‘you should be placed in a home and dead in there’. I therefore have no desire that they should benefit from my estate over and beyond the legacies I have made in this will.”
The above reflects the note in HAW's undated Will Questionnaire form completed in manuscript by Mr Wynter. Then on 14 th April 2005 Mr Wynter wrote to Mrs Bascoe following, as he put it, “…numerous conversations with you and your son, Bradford, in relation to your affairs generally under the following headings:”.
Under the heading “ Your Will” he said this “ Although I have tried to take instructions from you on more than one occasion as to your wishes, your instructions are far from clear and if you require, I will again attempt to take clear instructions from you with a view to updating your will so that it accords with your wishes”.
Mr Wynter also said he had prepared a fresh Enduring Power of Attorney in favour of Mr Barnaby which he would go through with her when he attended her at her home. He concluded by saying he looked forward to meeting with her “…on Tuesday.”
There are no attendance notes in evidence as to the drafting of the 2005 Will in, it appears, April 2005. The differences compared to the draft 2003 will include Mr Barnaby replacing Gresford Williams as executor, the removal of a long specific legacy clause and some alterations in both amounts and individuals who were to receive pecuniary legacies. Ms Johnson's legacy was to be £100 and that of Beverley Smith, £500. Subject thereto, all Mrs Bascoe's assets were bequeathed to Mr Barnaby.
The “EXPLANATORY NOTE” at paragraph [12] above appears in exactly the same terms at Clause 12. The attestation clause is in the usual form. The will was executed on 27 th April 2005. Ms Jayne Middleton-Albooye, solicitor, and Ms Fay Watson, receptionist, witnessed Mrs Bascoe's signature in circumstances I will set out in detail below.
Mr Robert Williamson, the son of Beverley Smith and grandson of Mrs Bascoe, said in an undated witness statement delivered to the Claimant's solicitors on 16 th October 2019 that “Minal of Ziades Solicitors” (sic) gave him a will dated 2013 and that after Mrs Bascoe died she and Mr Wynter demanded its return. That must be a reference to Ms Manal Fouad of Ziadies Solicitors, who had ceased trading in 2015.
Fortunately the file maintained by Ms Fouad whilst she was at Ziadies was located and is in evidence — although it does not appear to have been before her when she made her witness statement. In essence, Mrs Bascoe did see Ms Fouad in 2012 to make a new will but it did not proceed either then or in 2013 as Ms Fouad obtained medical evidence that Mrs Bascoe did not have...
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