Robert Michael Ashkettle and Another v Rosalind Patricia Ann Gwinnett
| Jurisdiction | England & Wales |
| Judge | Christopher Pymont |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] EWHC 2125 (Ch) |
| Docket Number | Case No: HC 11 C 04466 |
| Court | Chancery Division |
| Date | 17 July 2013 |
2013 EWHC 2125 (Ch)
Christopher Pymont QC
Case No: HC 11 C 04466
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION PROBATE
In the estate of LOUISA ANN ASHKETTLE deceased
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alexander Learmonth (instructed by Seddons) for the Claimants
Mr Aidan Briggs (instructed by Wellers LLP) for the Defendant
Hearing dates: 29,30 April, 1,2,7 May 2013
APPROVED JUDGMENT
Christopher Pymont QC:
This is a probate action by which the Claimants ask the Court to pronounce against the validity of a will dated 18 January 1999 and the Defendant (by a late counterclaim) seeks a grant of probate of that will in solemn form. The Claimants' claim also seeks a grant in solemn form of letters of administration with the will annexed in relation to an earlier will dated 2 October 1986. There is no dispute about the 1986 will. The issues I have to determine are as to the validity of the 1999 will. The Claimants say (i) that this will was not properly executed (ii) that the testator did not have testamentary capacity to make it (iii) that the testator did not know and approve the contents of the will and (iv) that, if the testator did have capacity and did know and approve its contents, then it must have been procured by the Defendant's undue influence.
The testator was Louisa Ann Ashkettle ("Mrs Ashkettle") who died on 27 September 2007, aged 86. The Claimants are Mrs Ashkettle's two sons ("Robert" and "Dennis" respectively) and the Defendant ("Rosalind") is her daughter. The 1986 will left Mrs Ashkettle's estate to Rosalind, Dennis and Robert in equal shares. The 1999 will left her estate to Rosalind alone. The 1999 will contains an explanation of the change in the following terms:
"3. I have made no provision in this Will for my Son [Dennis] because we do not have a friendly and reasonable Mother and Son relationship and I believe that he has adequate means of his own."
"4. I have made no provision in this Will for my Son [Robert] because he has greatly upset me with his attitude towards my house and I believe that he has adequate means of his own".
Whether these reasons have any cogency is part of the issues I have to address.
Evidence
I have heard oral evidence from a large number of witnesses. On the Claimants' side, these include Dennis and Robert, Robert's wife Jacqueline and his children Richard and Victoria ("Vikki"), and Dennis's son Colin. The Claimants' witnesses also include Michael Gillan (a former employee of Robert's company) who met Mrs Ashkettle once in 1999 and, by a hearsay statement as she was unfit to attend the trial, Sally Melhuish, a friend of Robert and his wife. The Claimants also called Dr Nandin Pandita-Gunawardena, formerly consultant physician in Elderly Medicine at University Hospital Lewisham, who examined Mrs Ashkettle on 4 September 1997. On the Defendant's side, I have heard evidence from Rosalind herself and her son Gregory, as well as Mrs Ashkettle's neighbour, Anthony Gear, her sister-in-law Rosina Christie, her GP Dr Arun Gupta and her solicitor Ralph Stanger, who drew up both wills. I have also heard evidence from one of the witnesses to the 1999 will, Denise Mears, the other (Lynn Ramsay) having made a statement to the effect that she does not remember anything material.
The evidence before me includes a certain amount of documentary material, particularly as to Mrs Ashkettle's medical history. On the issue of her capacity at the time of the execution of the 1999 will, I have also heard the expert evidence of Professor Henry Hodkinson (called by the Claimants) and Professor Robin Jacoby (called by the Defendant). By their joint statement dated 18 August 2013, they agreed that Mrs Ashkettle suffered from dementia due to Alzheimer's disease and that Mrs Ashkettle probably had the capacity to understand the nature and consequences of the act of making a will; but they differed on two important issues, namely whether Mrs Ashkettle lacked the capacity to appreciate, first, the extent of her estate and, secondly, the moral claims of those who might have expected to benefit from her bounty (these being legal criteria for capacity, derived from Banks v Goodfellow (1870) LR 5 QB 549). On these issues, Professor Hodkinson's view is that Mrs Ashkettle lacked capacity while Professor Jacoby's view is that whether or not she lacked capacity will depend upon the Court's determination of the oral, factual (i.e. non-medical) evidence.
The evidence includes a number of photographs and home videos. I have found these for the most part unhelpful on the issues I have to determine, with the exception of the video I comment upon below, taken by Rosalind's son Christopher, which shows Mrs Ashkettle in the garden with Rosalind in 1998.
In the light of the experts' differences, I therefore proceed to explain my findings on the oral and documentary evidence I have heard and read. I am concerned in the first instance to consider the first three issues raised by the Claimants (whether the 1999 will was duly executed, whether Mrs Ashkettle had testamentary capacity and whether she knew and approved of the contents of the will) because the issue of undue influence only arises if the 1999 will were otherwise regular.
In making my findings, I have sought to allow for the fact that the principal events took place at least fourteen years ago and that memories are bound to have become weaker or less reliable with the passage of time. I have also tried to allow for the strong feelings which this dispute has engendered on both sides and which can be expected to have influenced the principal witnesses' recollection of events. That said, I have concluded that Rosalind was an unconvincing witness, whose evidence on crucial matters is unreliable. Her attempts to explain away events which might be considered detrimental to her case (such as the consultation with Dr Pandita-Gunawardena, her answers to the questions on the Disability Living Allowance form and other aspects of the written evidence) were not credible. Her purported recollection in cross examination of the significance of an occasion in 1997 when Mrs Ashkettle passed out while walking in the park was unsupported by any contemporaneous medical evidence and lacked all conviction. She was particularly poor on dates: she gave specific dates for certain events, though without explaining how she remembered or identified them, but was otherwise rather vague or equivocal on timing. The question of dates (and thus the precise sequence of events) is of particular importance (as I explain below) when one considers the evidence as to how the 1999 will came to be prepared. In general, I prefer the evidence of Dennis and Robert on disputed issues, though I accept that they (and Robert in particular) feel some bitterness towards their sister and are wont to ascribe to her base motives which she may not deserve. I was also impressed by what I saw of the Claimants' supporting witnesses and less so by Rosalind's. These general conclusions have informed my findings below.
Findings of Fact
Mrs Ashkettle met and married her husband, Jack, during the Second World War and lived for some years in the East End, where they had been brought up. Dennis and Robert describe the marriage as an unhappy one, largely because of Jack's "raging temper", though things appear to have improved when, in 1964 they moved away from Jack's own family to 27 Galahad Road, Downham. However, all her children agree that Mrs Ashkettle herself was a bright and cheerful person and a loving and caring mother who was very attached to all of them. Robert was particularly close to her. He explained that he suffered a life-threatening illness in 1965, when he was 14, and was in hospital for four months and then convalescing for another six. During that time he and his mother drew very close. Mrs Ashkettle continued to dote on him in later years. Robert, his wife Jacqueline and daughter Vikki all recall the way she fussed over him, sometimes to the point of embarrassment.
Jack Ashkettle died in 1990. Jack's family were not told of his death because (as Dennis explained) Jack himself had had no desire to see his family and would not have even attended his own mother's funeral to avoid them. Dennis recalls that as being a family decision (that is, agreed by Mrs Ashkettle and all her children) though Rosalind says it was Dennis's decision. Dennis must be right on this as he could not have prevented Mrs Ashkettle or Rosalind from passing on the news had they wanted to. Mrs Ashkettle's physical health began to decline thereafter, so that by 1993 she was living permanently with Rosalind. The arrangement appears to have been that Mrs Ashkettle would stay overnight at Rosalind's home in Bromley but would spend the days, or part of the days, at her own home. Mrs Ashkettle's deteriorating eyesight was a particular worry in that she would often fall. She was also already suffering from loss of memory and concentration, sometimes with potentially dangerous consequences, such as leaving the gas on unlit and putting an electric kettle on the hob (as Dennis and Robert recall). Concerns for Mrs Ashkettle's safety must have played a large part in the decision that she should move in with Rosalind. All Mrs Ashkettle's children were initially very happy that she could rely upon Rosalind, rather than having to move to some kind of nursing home or other supervised accommodation.
Mrs Ashkettle's mental health thereafter declined further. Robert, Jacqueline and Vikki recall being told by Rosalind that Mrs Ashkettle's trousers had fallen down while she was at The Glades shopping centre and she was walking around unaware of the fact. On a separate occasion, Rosalind told...
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