Catling & ors v Catling & anr [2014] EWHC 180 (Ch)

Analysis

This was the trial of a probate action relating to the estate of the late Mrs Joyce Beech Catling (Mrs Catling). She was married to Arthur Joseph Catling (Mr Catling) and they had eight children. The first defendant was the youngest child. The claimants, the seven older children, seek probate in solemn form of her will dated 23 August 2004 (the 2004 will) and codicil dated 2 November 2005 (the 2005 codicil) and say that the court should pronounce against a later will dated 11 May 2007 (the 2007 will), on the ground that Mrs Catling no longer had testamentary capacity and/or did not know and approve its contents.

Under the 2004 will the estate is divided equally between the eight children (in the events which have happened); under the 2007 will it is given entirely to Kevin, subject to three small bequests. The second defendant drafted the 2007 will and was appointed executor under it.

Held:

1. 1) Mrs Catling did not have testamentary capacity in May 2007 and that she certainly did not have the capacity to understand the radical change made by the 2007 will. This conclusion is reinforced by the defendants’ failure to follow the golden rule.
2. 2) Having regard to the expert evidence of Professor Jacoby, it was held that Mrs Catling had testamentary capacity in August 2004 and November 2006. Accordingly, the court pronounced against the will of 13 (but dated 11) May 2007 and in favour of the will dated 23 August 2004 and the codicil dated 2 November 2005.
3. 3) In respect of want of knowledge and approval, this did not arise given the above findings. However, it was found that the circumstances surrounding the 2007 will were sufficient to put the onus on the defendants to show that Mrs Catling knew and approved the 2007 will. The court made the following findings:
4. i) Mrs Catling was living with Kevin and Shirley and was more or less cut off by them from contact with her other children, even though the others tried to see her.
5. ii) Kevin first made contact with Mr Wallace and arranged for him to act for Mrs Catling. Mr Wallace regarded himself as acting in Kevin and Shirley’s interest (insofar as he was not acting in his own interest), and he looked to them for payment, no doubt out of the estate of Mrs Catling in due course.
6. iii) Kevin and Shirley conspired with Mr Wallace to unseat Mrs Catling’s long-term trusted solicitor, Mr Brown, and replace him with Mr Wallace. She was thus left without a professional adviser.
7. iv) Even if Mrs Catling had genuinely formed the view that she was dissatisfied with Mr Brown and did not wish to rely on him in the future, that does not explain why she changed the dispositions under her will, as distinct from merely changing the executor.
8. v) Mr Wallace was not, and is not, a barrister or solicitor. He was not subject to any professional code of conduct and relied on this fact when it suited him (eg in failing to have Mrs Catling assessed by a psycho-geriatrician before she made the 2007 will and in initially refusing to provide a Larke v Nugus [2000] WTLR 1033 statement). However, he fraudulently represented that he was a barrister or solicitor, or fraudulently allowed such a representation to remain uncorrected.
9. vi) He claimed to have visited Mrs Catling several times a month for about two years, which would appear to be wholly unnecessary for a will writer taking instructions for this will. Kevin and/or Shirley were usually present when he was taking instructions.
10. vii) There was no evidence to explain why the testatrix would have made the radical change in the contents of her will.
11. viii) The will file contained no instructions for the 2007 will. On the contrary it tended to show that she was content with the gift of residue under the 2004 will.
12. ix) In contrast to her earlier wills, which divided her estate equally among her children, the entire residue under the 2007 will is given to Kevin, who was responsible for instructing Mr Wallace and who had some undisclosed arrangement for paying Mr Wallace. Further, Mr Wallace himself stood to gain under clause 3 of the 2007 will.
13. x) Even if Mrs Catling had testamentary capacity in May 2007, she was elderly, disabled, virtually blind and suffering from some degree of dementia.
14. xi) The will was not read out in full.
15. xii) After Mrs Catling’s death, Mr Wallace was evasive and refused to provide a Larke v Nugus statement for some time.
16. 4) [NB the judge does not say what his finding is on want of knowledge and approval.]

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. JUDGMENT DAVID HALPERN QC: Introduction [1] This is the trial of a probate action relating to the estate of …

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