Simon v Byford and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison,Lord Justice McFarlane,Lord Justice Sullivan
Judgment Date13 March 2014
Neutral Citation[2014] EWCA Civ 280
Docket NumberCase No: A3/2013/1653
Date13 March 2014

[2014] EWCA Civ 280



Mr Nicholas Strauss QC (sitting as a Deputy High Court Judge)


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Sullivan

Lord Justice McFarlane


Lord Justice Lewison

Case No: A3/2013/1653

Byford & Ors

Ms Penelope Reed QC and Ms Sarah Haren (instructed by Lyons Davidson Limited) for the Appellant

Mr Dennis Sharpe (instructed by Lindops Solicitors) for the Respondent

Hearing date: 5 March 2014

Lord Justice Lewison

The issue


The issue raised on this appeal is whether the late Mrs Constance Simon who died on 15 January 2009 (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88 th birthday party on 18 December 2005. The judge (Mr Nicholas Strauss QC) answered both those questions in the affirmative. One of Mrs Simon's sons, Robert Simon, appeals.


Ms Penelope Reed QC and Ms Sarah Haren appear for Robert. Mr Dennis Sharpe appears for two of his siblings. For the reasons that follow, I would dismiss the appeal.


The judge's judgment, which runs to over 70 pages and 160 paragraphs is very detailed. It is at [2013] EWHC 1490 (Ch). It is not possible to reproduce the whole of his narrative or his factual findings. But it necessary to set out sufficient of it so that the questions arising on this appeal can be put into proper context.

Background facts


Mrs Simon had four children: Jonathan, Hilary and Robert (who are twins) and David. Hilary is married to Prof Martin Woolley (who was present when the disputed will was signed). Mrs Simon's late husband had founded a manufacturing company called RW Simon Ltd. At the time of the will each of her children held 14,997 shares in the company; and Mrs Simon held the remaining 16. The effect of this was that each of the four children had a 24.99 per cent shareholding. Mrs Simon had retained the remaining shares to prevent deadlock. At the date of the disputed will Robert, Hilary and Jonathan were all directors of the company. Robert was the managing director, and it seems that neither Hilary nor Jonathan played any active day to day role in the company's business. David had died of cancer in November 2004, and his son Louis had committed suicide in August of that year.


It is also necessary to mention at this point that Mrs Simon had a long-standing housekeeper called Mary Murray who had begun to work for her in 1970. In later years she assumed a greater role which the judge described as "generally looking after Mrs Simon and ensuring that her life ran smoothly". Mrs Murray was paid a salary of £36,000 per annum and pension contributions.


Mrs Simon's main assets were her house in St John's Wood (valued at £1.75 million at the date of her death); a flat in Westcliff-on-Sea (valued at £262,000), savings and shares worth about £55,000 and her shares in the company. The assets which underlie this dispute are the Westcliff flat and the shares. Although they form a small part of the overall estate, ownership of the shares may serve to change control of the company; or at least either to permit or to prevent deadlock.


Mrs Simon had made a number of wills before the disputed will. They were:

i) A will dated 23 March 1978 by which she left all her property to her four children in equal shares.

ii) A will dated 15 June 1992 by which she left a legacy of £20,000 to Mrs Murray but otherwise left her property to her children in equal shares, subject to a deduction from David's share for any amount still outstanding on a mortgage of the Westcliff flat which had been taken out to provide funds for David.

iii) A will dated 1 August 1994 by which she again left a legacy of £20,000 to Mrs Murray; bequeathed the 16 shares in the company and the Westcliff flat to Robert, but otherwise left her property to her children in equal shares.

iv) A will dated 27 June 1996 which was in the same terms (apart from a change in the executors, who were named as Mrs Murray and Robert). That will was supplemented by a codicil dated 27 January 1999 which replaced Jonathan's share with a discretionary trust because of some financial difficulties that he was then experiencing.


She also signed an enduring power of attorney in 1998 in favour of Mrs Murray and Robert. But that was not activated until 2009.


The judge made two findings about Mrs Simon's general approach to her assets. The first was that she was always insistent on treating her children equally. She used to say that "if there is only one apple, it be divided equally into four". The second concerned the reasons for the alteration of the equal dispositions between her children in the 1994 and 1996 wills, which had favoured Robert. These were set out in a letter dated March 1993 which she did not send to her children but which she kept in her safe. However, she showed it to Mrs Murray. She began by saying that over the years she had tried to be fair in helping her children financially according to their situations. She thought it was time to review the position "in order to try to level you up". She noted the various financial benefits that each of the four children had had, and recorded that Robert had given her unstinted help. She said that:

"It is therefore my decision that my shares in the family Company shall go to Robert – and it is well deserved that he should hold the controlling interest, for he has proved himself to be the one who should hold the reins of the Company …"


She concluded that:

"Other funds in my estate must be balanced as equally as possible, after such gifts specifically stated in my will, such as my gift to Mary [Murray]…"


This letter dealt only with the shares as an exception to the principle of equality: the Westcliff flat was not specifically mentioned. It would, therefore, appear to fall within the general description of "other funds in my estate".


In October 2004 when David was close to death he wrote to his mother and his siblings. He said (among other things) that he did not object to Robert receiving the Westcliff flat as part of his inheritance, but that he would object if he was to be given the flat over and above what was to be shared between all four siblings. He also said that Mrs Simon's 16 shares should be divided equally between all four which, he said, was a "fair and equitable basis". Although the letter (and subsequent correspondence) was sent to Mrs Simon there is no direct evidence that she read it.

Mrs Simon's general mental health


It was common ground that from 2001, when Mrs Simon was 83, her mental health deteriorated. The experts called before the judge agreed that by 18 December 2005, when the disputed will was made, Mrs Simon was suffering from mild to moderate dementia, to such a degree as to put her testamentary capacity in doubt. But neither expert had examined her during her lifetime and neither was able to say with certainty whether she did or did not have testamentary capacity on that date. The judge thus had to fall back on his own evaluation of the evidence of those who knew her.


The judge heard evidence from a number of witnesses called by each side. He did not think that any of the witnesses was deliberately untruthful. Although their accounts of Mrs Simon's mental health were very different, the judge considered that they could be reconciled. He said at [137]:

"I do think that the claimant's witnesses tended to exaggerate, in the sense that what they described was Mrs. Simon's state for some of the time, but by no means always. I also think that the accuracy of witnesses' recollection as to the dates to which their observations related was open to doubt: it would not be easy to remember exactly when a particular stage in the decline had been reached, this does not apply to November 2004. Equally I think that Hilary exaggerated in suggesting that, when she saw her mother, she was her normal self."


His general conclusion at [138] was:

"In my view, the key to the dispute of fact is Professor Howard's evidence that once capacity is lost it is lost, but that the patient's mental state may be further adversely affected by other factors at some times. This explains the "good days" and "bad days" observed by Martin, both in Mrs. Simon and in his mother-in-law. Therefore, it is not so surprising that Mrs. Simon was at times unable to recollect that David was dead, perhaps because of distress or tiredness, and at other times, as some of the evidence shows, well able to recall it."

The judge's approach to the evidence


The judge thus placed most weight on the evidence of what happened on the day when Mrs Simon made the disputed will. As he put it at [18]:

"It follows that the most important evidence is that of the persons present when the will was prepared on 18th December 2005, namely Jonathan and his wife, June, Hilary and her husband Professor Martin Woolley, and Ann Schlachter and Derek Basten, whose roles will be explained below. Hilary gave evidence before the others, and apart from Jonathan, who as a party to the action was present during all the evidence, all the witnesses gave evidence before or in the absence of the others, and they were all fully examined in chief about the events of the day. I found their evidence to be consistent, but not so consistent as to suggest collaboration, and I found them to be credible witnesses. Since their evidence relates to Mrs. Simon's capacity at the time of the will, it is, if true, of greater significance than...

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