Sally Ann Bateman v Stephen Leslie Overy and Another
| Jurisdiction | England & Wales |
| Judge | Mr John Male QC |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] EWHC 432 (Ch) |
| Docket Number | Case No: HG12EQ4175 |
| Court | Chancery Division |
| Date | 19 March 2014 |
[2014] EWHC 432 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice Strand.
London, WC2A 2LL
Mr John Male QC (sitting as a Deputy Judge)
Case No: HG12EQ4175
Mr Simon Brilliant (instructed by Morgan Hall) for the Claimant Mr David Lonsdale (acting by public access) for the Defendants
Hearing dates: 20 th to 23 rd January 2013
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.
Introduction
Ronald Leslie Overy ("Ronald") died on 17 th January 2012. He was aged 85. His wife, Patricia Overy ("Patricia"), had died on 29 th August 2010. She was aged 79. They had been married for 59 years. They had three children. The eldest child is Stephen Leslie Overy ("Stephen") who was horn in 1953 and is the First Defendant. Stephen is married to Wendy Susan Overy ("Wendy") who is the Second Defendant. The middle child is Sally Ann Bateman ("Sally") who was bom in 1956 and is the Claimant. The youngest child is David John Overy ("David") who was bom in 1961. He is not a party to these proceedings, but he gave evidence on behalf of Sally.
For many years Ronald and Patricia lived in Walthamstow. In June 2008 they sold their house in Walthamstow and bought 2 Bloom Close, Frinton-on-Sea, Essex which is close to where Stephen and Wendy lived, they having moved from London to The Gables, Mill Lane, Thorpe-Le-Soken, Essex at about the same time as Ronald and Patricia moved to Frinton.
Immediately after Patricia's death in August 2010 Ronald moved from 2 Bloom Close to live with Stephen and Wendy at The Gables. On 15 th April 2011 Ronald sold 2 Bloom Close. The net proceeds of sale were £241,114, out of which he gave £120,500 to each of Stephen and Wendy. These gifts have been referred to as "the 2011 transfers" and I will use the same description.
On 21 st September 2011 Ronald made an online will ("the 2011 will") leaving his estate to Stephen absolutely. On the same day, two letters were prepared recording reasons for the exclusion of Sally and David from Ronald's estate. Probate was granted to Stephen and Wendy on 25 th April 2012. They are the executors of Ronald's estate which is nominal, £2,299 net.
In these proceedings Sally disputes the validity of the 2011 transfers and the 2011 will. Sally also says that Ronald made an earlier will ("the old will"), believed to have been executed almost 30 years ago (i.e. in about the early 1980s) under which she was an executor. The old will was, she says, never revoked or destroyed by Ronald. If Sally fails to establish the existence of the old will and if the 2011 will is a valid will, Sally applies for an order that reasonable provision be made for her out of Ronald's net estate. That application is made under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"), The parties agree that, if the 2011 transfers are not set aside, there is no practical purpose to Sally's 1975 Act application because of the nominal value of the net estate.
So, the issues relate to:
(1) the old will;
(2) the 2011 transfers;
(3) the 2011 will;
(4) Sally's 1975 Act application.
Sally was represented by Mr Simon Brilliant. Stephen and Wendy were represented by Mr; David Lonsdale. I am grateful to both Counsel for their clear and helpful submissions.
There is one other matter which I should mention briefly in this introduction but which I will have to consider in more detail later. It concerns the evidence of Sally and her son Mark William Ronald Bateman ("Mark") who is aged 34 and who was to give evidence on behalf of Sally. Mr Lonsdale started his cross-examination of Sally in the afternoon of day 1. At the end of the day, Mr Lonsdale was only part way through his cross- examination and still had a large number of topics to deal with. At the start of day 2 Sally refused to complete her cross-examination. She also refused to stay in the building and she left with Mark. As a result Sally never completed her cross- examination and Mark was never sworn, let alone cross-examined. So far as I am aware, for the remaining three days of the trial, Mr Brilliant received no further instructions horn his client although he had his instructing solicitor sitting behind him. Various applications were made by Mr Lonsdale as a result of these events, but it will be more convenient if I deal with them later in this judgment.
The evidence
Having set the scene with this introduction, I turn now to the evidence. I will deal first with the expert medical evidence. I will then deal with the factual evidence and make my findings of fact in a broadly chronological order. When I deal with Sally's evidence I will consider the questions raised by her conduct on day 2. I will then deal with the issues in the order set out above.
The expert medical evidence
Sally relied upon reports from Dr Ian Davidson, FRCPsych who is a Consultant Psychiatrist with almost 30 years' experience in mental health, including over 23 years' experience as a Consultant in General Adult Psychiatry.
Dr Davidson's conclusion was as follows:
"2.4 None of the above conclusively demonstrates one way or the other whether on a particular day Mr Overy did or did not have sufficient capacity regarding his financial affairs to make a considered judgment regarding gifting the money to his son and daughter in law and on a separate occasion whether or not he did have testamentary capacity to make a Will in favour of his son and daughter in law (the defendants in the case) and leaving out of his inheritance his other son and daughter (the daughter being the claimant in this case). It is not clear to me from the evidence supplied to me that Mr Overy had independent support or advice in making the decisions regarding the gifting or in drawing up his Will and nor that the documents were drawn up with him by an independent expert or experts and in privacy away from any potential conflicts of interest with named family. In my opinion if this had been done then given his known history an assessment of capacity would most likely have been undertaken and given a definitive answer to the questions. In the absence of such evidence and drawing solely upon the evidence available to me it is my opinion that it is reasonable to question whether or not Mr Overy's mental state at the time of these decisions was one of full and proper capacity as for the reasons stated above there are a number of factors which would cast doubt upon his capacity at that time but not sufficient evidence one way or the other for me to give a definitive yes or no opinion."
Stephen and Wendy relied upon reports from Dr Carla Mahmoud. She was Ronald's general practitioner from September 2010 until his death in January 2012.
Dr Mahmoud's conclusion was as follows:
"5.4 I am not aware of the date that Mr Overy completed his will, but I believe Mr Overy had a mild depressive episode and 1 do not think that in my professional opinion that there was ever any indication that he lacked capacity to act. I can further state that in my opinion he did not have any evidence of mental illness, psychosis or delusions. It is my belief that he did have testamentary capacity."
After exchanging their reports, the two experts prepared a joint statement which concluded "there is essentially no disagreement on the report and conclusions as set out by Dr Davidson in his report".
So, the agreed position on the medical evidence was as set out in Dr Davidson's conclusion above. In view of this agreement neither expert was called to give evidence.
Dr Mahmoud also gave a witness statement which I will deal with later. There was no challenge to the contents of that statement
The witnesses of fact
I start with the witnesses for the Claimant. The main witnesses of fact for Sally were herself, Mark, David and his ex-partner Maggie Spenner. In addition Sally also relied on evidence from Mr and Mrs Ives who lived next door to Patricia and Ronald in Walthamstow for over 30 years. Also, there was Mrs Brewer who lives next door to Maggie Spenner and spoke to the return of David's birthday card to Ronald in September 2011, an incident which I consider in more detail later.
The main witnesses of fact for Stephen and Wendy were themselves. In addition Stephen and Wendy also relied on evidence from Peter Dawson who was a fellow officer in the London Fire Brigade with Stephen. Mr. Dawson was a witness to the 2011 will. The Reverend J.C. Dowding was the other witness to the 2011 will and he also was called. In addition to these witnesses, there were Keith Potter who lived next door to Stephen and Wendy and Mr and Mrs John Smith, Mrs Smith being a first cousin of Stephen. I have already mentioned that Dr Mahmoud gave a witness statement.
I will start by considering Sally's evidence and her departure from court on day 2. Mr Lonsdale started his cross-examination of Sally on the afternoon of day 1. Doing as Mr. Brilliant asked me to do in his opening and making frill allowance for her various disabilities and illnesses, I have to say that from what I saw of Sally on day 1, I regarded her evidence as unreliable unless corroborated by independent evidence. As I explain later when dealing with the old will, her evidence on that topic was inconsistent with her pleaded case and verging on the fantastic. When cross-examined on a doctor's notes which dealt with her angry behaviour, she angrily denied that she had ah anger management problem. The very way in which she reacted angrily to cross-examination showed that she had an anger management problem...
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