Shanaz Karim v Dean Steele & Anor

1. This my judgment following the trial on written evidence of two claims relating to the estate of Sheila Carter (“ Sheila ”): a probate claim, and an alternative claim seeking to establish an interest arising by way of proprietary estoppel in Sheila’s home. Parties and the claim

2. The claimant, Shanaz Karim, was the live-in carer of Sheila for many years. She has acted in person throughout, with help from Support Through Court; and representation from counsel instructed by Advocate at one hearing. Ms Karim suffers from significant mental health issues, including anxiety and depression. She has had considerable difficulties in formulating her claim, obtaining and preparing admissible evidence in support of it, and in marshalling and presenting this material. The help she has had with these tasks from Support Through Court has been invaluable both to her and to the court.

3. Ms Karim’s primary claim is as the named executor and primary beneficiary of Sheila’s will dated 23 November 2012 (“ the 2012 will ”). She seeks to revoke the grant of probate in respect of a will dated 18 February 2015 (“ the 2015 will ”). The sole beneficiary under the 2015 will, is John Quinn, the second defendant.

4. The first defendant, Dean Steele, is a solicitor. He was appointed on 30 September 2016 by Mr Quinn as his attorney for the purpose of obtaining a grant; the executors named in the 2015 will having renounced. On 15 June 2018, Mr Steele obtained a grant of letters of administration with the will annexed for the use and benefit of Mr Quinn.

5. The claim was issued on 30 March 2022. There are two further iterations of it in amended claim forms dated 28 February and 30 March 2023. Although not well drafted, the following grounds of challenge to the 2015 will can be discerned from it: (1) lack of testamentary capacity; (2) want of knowledge and approval; (3) undue influence; (4) fraudulent calumny,

6. The proprietary estoppel claim is based on a promise by Sheila to leave to Ms Karim her house, 572 Forest Road, Walthamstow, London E17 3ED (“ the property ”). Ms Karim claims that in reliance on that promise, she sold her house used and part of the proceeds on a loft conversion (£65,000), and kitchen improvements (£15,000).

7. Initially, Mr Steele was the sole defendant to the claim. He acknowledged service stating that he did not intend to defend the claim, and his stated position throughout has been that he is neutral in the claim. On 23 June 2022, Deputy Master McQuail ordered that Mr Quinn be joined as the second defendant to the claim. He has not acknowledged service nor participated in the claim in any way.

8. Various stays for alternative dispute resolution have been ordered, as well as a financial dispute resolution hearing, which Mr Quinn did not attend.

9. In these circumstances, I ordered a trial on written evidence of the claim. Evidence Documentary evidence

10. No order for disclosure was made. Ms Karim disclosed a number of documents in support of her case, but her disclosure was not the result of a formal issue based search.

11. However, I directed Mr Steele to take steps to obtain: (1) the will file for the 2015 will; and (2) Sheila’s medical records. In addition, Mr Steele disclosed the bank statements of Sheila’s two bank accounts from 27 July 2005 to their closure on 2 August 2017.

12. As will be seen, the 2015 will was not prepared by a solicitor, but by a will writing business called Damsons Future Planning (the trading name of Damsons Estate Administration Limited) (“ Damsons ”). Damsons went into liquidation on 25 August 2022, with the wills prepared by it being dealt with by Kingswood Partnership (also not solicitors). The only documents they provided were the electronic file notes, and not the documents referred to in those notes. The execution of the will was apparently done at the offices of a solicitor in Walthamstow. There was no documentary evidence as to this. Witness evidence

13. Ms Karin relied upon the witness evidence of the following persons: (1) herself; (2) Margaret West, a long standing (since 1974) friend of Sheila, who was given her jewellery under the 2012 will; (3) Hongmei Zheng, who lived in the property as a lodger from 2007, and remained a friend of Sheila after leaving it; (4) Donna Payne, who was also lodger at the property, from about 2008 to 2011, and became a friend of Sheila; (5) Denise McCarney, Sheila’s next door neighbour, who witnessed the 2011 agreement referred to below. Their evidence was, of course, unchallenged. Facts

14. Sheila was born on 11 November 1928, and died on 10th September 2016 aged 87. She was unmarried and had no children, nor, it would seem, close family. During the relevant period, she suffered from a variety of medical conditions including chronic severe bowel issues, hiatus hernia, arthritis, and cervical spondylitis. She also had a pathological fear of being on her own (resulting in panic attacks) and agoraphobia. She was very demanding, and frequently changed her GP due to complaints. She regularly called 999 in the middle of the night, with panic attacks about her constipation, and would be admitted to hospital where she would be given treatment for this.

15. Ms Karim was born in 1971, and aged 54 at the date of the trial. In the summer of 1998, Ms Karim saw and responded to an advertisement in a shop window offering free accommodation in exchange for company. The advertisement was placed by Sheila, who was living alone. However, Ms Karim only stayed one night, because the house was very run down.

16. In June 2006, Ms Karim saw another advertisement offering a free room in a house in exchange for company. By coincidence, it had been placed by Sheila. She moved in with her 3 children, then aged 3 months, 4 years and 7 years. (She was separated from her husband.)

17. Sheila was then 78. She made it clear at the outset that she wanted Ms Karim to provide her with 24 hour care, and that was the initial arrangement. They became very good friends and dependent on each other. Sheila’s hospital notes for 22 November 2013 describe her as living at home with a friend.

18. In 2007, Ms Karim inherited some money from her mother. She loaned £50,000 to Sheila to improve her quality of life, as she (Sheila) was cash poor.

19. In 2008, Sheila began paying Ms Karim £60 per week for housekeeping. Around this time, Ms Karim’s divorce was finalised. When Donna Payne first moved into the house in about 2008, Sheila told her that Ms Karim was not very nice to her (Sheila). However, Ms Payne soon discovered that she had been misled, and that Ms Karim was kind and very caring towards Sheila. When Sheila was having a bad day, she could be unpleasant and abrupt with people and scream.

20. Between 2007 and 2012 Ms Karim spent further monies improving the property: re-wiring, installing central heating, plastering and decorating, updating the kitchen and bathroom, and flooring.

21. In January 2011, Ms Karim and Sheila formalised their arrangements. An agreement (“ the 2011 agreement ”) was drawn up by Sheila’s solicitors, Romaine Coleman and signed by them on 28 January 2011. Denise McCarney witnessed it. She had known Sheila since 1997 when she (Ms McCarney) and her partner became Sheila’s neighbours. They asked for a meeting with Sheila to reassure themselves that Sheila had indeed agreed to all its contents. They spoke to her for over an hour, during which time they questioned her on all its points. Sheila was able to tell them exactly what was in the agreement and that she (Ms McCarney) should happily sign it. Ms McCarney believed that Sheila knew what she was doing, and for that reason, was happy to witness Sheila signing the document.

22. In addition, the evidence includes the first page of a letter dated 13 January 2011 from Romaine Coleman, explaining the effect of the 2011 agreement. This letter shows: (1) the effect of the 2011 agreement was explained in detail to Sheila, including its risks and disadvantages; (2) the writer of the letter (presumably Chris Timms, the assistant solicitor with whom Sheila dealt with generally) came to her house to take instructions for the agreement; (3) Romain Coleman’s client was Sheila, and they did not regard Ms Karim as their client.

23. The 2011 agreement: (1) acknowledges a loan of £85,000 to Sheila by Ms Karim; (2) grants a charge over the property securing that sum; (3) provides that if Ms Karim spends further sums on specified works to the property, Sheila shall pay 20% of the cost and 80% shall be added to the principal sum secured; (4) provides that if the property is sold, Ms Karim has first option to buy; (5) grants Ms Karim and her 3 children the right to live at the property for so long as they live, rent free with their pets.

24. The 2011 agreement is also a service agreement. In return for £100 per week, Ms Karim agreed to extensive caring and housekeeping responsibilities between 6.30am and 11pm, including always to sleep on the same floor as her, and making sure that she always had a suitable person to deal with her agoraphobia. Ms Karim also agreed that if Sheila ran out of money, she would continue her duties without payment.

25. On the same date, Sheila executed a form CH1 granting a legal charge over the property securing the sum of £85,000 and any other liabilities under the 2011 agreement on the property. This was registered at HM Land Registry on 23 February 2011.

26. Around this time, a social worker (identified only as Manjula) alleged that Ms Karim was exploiting Sheila. On 29 December 2011, Walthamstow Social Services wrote to Romaine Coleman: “We have received numerous allegations of financial exploitation of Miss Carter by her live in carer, Shanaz Karim, which we have investigated under the Safeguarding procedures. These allegations have been largely unsubstantiated and therefore not progressed any further.”

27. In 2012, Ms Karim sold her former home, 35 Stainforth Road, Ilford, IG2 7EJ (which she had bought under the right to buy scheme). The net proceeds of sale were about £120,000.

28. Sheila told Ms West on many occasions that intended to leave her house to Ms Karim in recognition of Ms Karim’s care and dedication. On 23 November 2012, Sheila executed the 2012 will. Romaine Coleman prepared and arranged the execution of the will which was witnessed by Mr Timms and a receptionist at Romaine Coleman. After a gift of her jewellery to Ms West, Sheila left her entire estate to Ms Karim.

29. On 5 December 2012, Sheila again phoned Mr Timms at Romaine Coleman. She told him she wanted to appoint Ms Karim as her attorney so that she could deal with her financial affairs. She explained to him that her doctor was reluctant to provide a certificate that she was not pressurised because he feared she was being unduly influenced.

30. In October 2013, Sheila left a telephone message for Mr Timms telling him that she had agreed to Ms Karim carrying out some works to her kitchen and building a loft extension. Mr Timms responded on 10 October 2013 asking her not to telephone the firm to tell them about matters in which they were not involved (and to chase her for payment of their bill for preparation of the 2012 will).

31. Ms Karim’s evidence is that she spent £65,000 on a loft conversion at the property, and about £15,000 on doing up the kitchen. She did so in the expectation that she would be entitled to the property on Sheila’s death.

32. Sheila first met Mr Quinn on 24 November 2013, during a short stay in Whipps Cross University Hospital (“ the hospital ”), where Mr Quinn was visiting his daughter. Sheila told Ms Karim that Mr Quinn had accused Ms Karim of poisoning her in order to get the house and taking money from her. That day, Ms Karim reported these accusations to the hospital. In the hospital notes for that visit, Mr Quinn is described as Sheila’s “friend” even though he had only met her that day. He told the hospital that when Sheila asked Ms Karim for help, she did not always tend to her.

33. Sheila was re-admitted a few days later. During her second stay, Ms Karim saw Mr Quinn rummaging through Sheila’s bags, and he told Ms Karim he wanted the keys to the house. Ms Karim then told Sheila that she could not take responsibility for her if she was allowing strangers (Mr Quinn) into the house and Sheila was taken into the care of social services. Over the next two days (26 and 27 November 2013), Mr Quinn, his wife or his daughter phoned Ms Karim repeatedly to ask for the keys to the house, which she refused to give him. On one of these calls, Ms Karim asked for his ID and his connection with Sheila, to which he responded “Don’t be suspicious of me or I will be your worst enemy”.

34. Once Sheila returned home, Mr Quinn began visiting her there. He gave her bed baths. This was unnecessary because she had professional carers who visited 4 times a day to help her with her personal hygiene, including carrying out this task. It shows an unusual and inappropriate level of physical intimacy between Mr Quinn and Sheila.

35. On 24 December 2013, Ms Karim reported to the police that Mr Quinn had been telling Sheila that he cared for her, and that Ms Karim was not doing a good job. She also said that Mr Quinn had been suggesting to Sheila that she change her will as Ms Karim did not deserve to take under it. By 7 January 2014, Sheila had returned to live at the property, where she was bedbound. Her phobia of being alone had worsened to the point where she was so frightened that she called the police or ambulance if Ms Karim left the house.

36. In January 2014, Ms Karim reported to the police that Mr Quinn had brought a “mystical healer” to the house, who said she was trying to get the evil sprits from Sheila. Ms Karim believed that Mr Quinn was trying to turn Sheila against her. At this point, the relationship broke down and Ms Karim left the house. Sheila was moved into temporary care accommodation by Social Services. The last payment of wages to Ms Karim from Sheila’s bank account is £150 on 22 January 2014.

37. By May 2014, Sheila had moved to a care home, George Mason Lodge. Initially, Ms Karim visited her in the care home, but was told by the staff that Mr Quinn had told them that she was not allowed to visit. Similarly, Sheila’s friends, including her close friends, Ms West and Maureen (whose last name was not in evidence) were prevented from visiting Sheila. Ms West found this alarming, as Sheila had always valued their friendship and contact.

38. Sheila told Ms West that she felt emotionally and practically unsupported after Mr Quinn took control; and Ms West’s evidence is that he manipulated Sheila at a vulnerable time.

39. On 5 June 2014, Mr Quinn contacted Ian Cranefield of Richard Nelson LLP, solicitors. His attendance note records: “Sheila is someone with full capacity but certain personality issues which have led her in the past to be very vulnerable … John Quinn told me that he and his wife would be happy to have her [Sheila], but some incident or other occurred with a lady called Jaqueline Shepherd in 2011, who died in A & E after residing at their house with them. The suggestion I was given is that John Quinn has been cleared of any contribution to her death but has not been “officially exonerated’'. That is dependent on a coroner’s report which hasn’t yet been released. This suspicious death somehow means that she cannot go and stay with him and his wife either.”

40. Mr Cranefield then phoned Sheila at the care home. That attendance note includes: “She said that the relationship soured when Shanaz tried to isolate her from other people. She was very enthusiastic about John Quinn who had changed her life. She said that Shanaz had "asked me for John's ID" at some point and had asked her to choose between them. It seems to have caused her great distress. … It doesn’t sound as if Sheila has cut off all contact with Shanaz and I suspect she changes her opinions about her. … She certainly has capacity. … I suspect she is someone who is very easily influenced by other people around her with strong personalities.”

41. Finally, Mr Cranefield spoke to Sheila’s social worker, John White: “He felt that the agreement was more in Sheila's favour than Shanaz and that Sheila had demanded impossible levels of care, which were bound to fail. From a social worker's point of view, the legal agreement drawn up by the solicitors was never going to work. He will send me a copy. I asked him about the safeguarding investigations and he indicated that different allegations had been made by and about Shanaz and Sheila and the whole picture was confusing. He doesn’t deny that Shanaz may have been “manipulative” but he feels that Sheila has been "more manipulative”. He says she has given different opinions to the local authority and to him and it’s a real headache. Because she has capacity she is the "decision maker” but her decisions keep changing. He says she demands high levels of company and support beyond what her needs are. He described her as “taking to her bed" two and a half years ago and “playing the victim”. He is not convinced by her complaints of agoraphobia. She insists on keeping the door of her bedroom open and fears falling out of bed. She insists on padded cot sides to the bed and he thinks that she thinks like a baby. Her care needs cannot be managed in this way. He applauded John Quinn for getting her on her feet.”

42. On 18 June 2014, Richard Nelson LLP, wrote to Romain Coleman on behalf of Sheila alleging that they had been professionally negligent in advising Sheila to enter into the 2011 agreement. They referred to Sheila as a “vulnerable elderly lady”. They also wrote to Ms Karim asserting that she had no entitlement to live in the property; followed by a letter before claim in respect of a possession claim. On 19 February 2015, Richard Nelson wrote to say that time was of the essence, because Sheila required her capital out of the house.

43. On 15 September 2014, Mr Cranefield met Sheila (partly on her own and partly in the presence of Mr Quinn) to discuss whether wished to bring possession proceedings to recover the property. He then prepared a witness statement which Sheila dated “15 th 2014”. The statement set out, in broad summary, complaints and allegations of financial exploitation and neglect by Ms Karim. Many of these allegations are not consistent with the contemporaneous documentary evidence or with the evidence of Ms Karim’s witnesses: (1) Walthamstow Social Services investigated and dismissed allegations of financial exploitation against Ms Karim (see paragraph 26 above); (2) Sheila suggests that she was pressurised to enter into the 2011 agreement: “Frankly, I would have agreed to anything”, when it is clear that the agreement represented her instructions and considered wishes; (3) Sheila states that she had no idea that the loft works were being done, when it is clear from the letter from Romaine Coleman dated 10 October 2013 that she not only knew about, but agreed to these and the kitchen works being done; (4) Sheila alleges that in December 2013 Ms Karim refused to provide “personal care”, when the 2011 agreement provides (at 6.2) “Ms Karim shall not be expected to clean Ms Carter or deal with any hygiene issues”; Ms West’s evidence is also that Ms Karim set boundaries regarding personal hygiene care and Sheila had 4 carers visiting daily for such tasks; (5) Ms West’s evidence is that Ms Karim worked tirelessly to ensure Sheila was well cared for emotionally and physically; this is also the evidence of Ms Payne and Ms Zheng; (6) Sheila alleges in her statement that Ms Karim did not provide her with food that she liked; however, Ms Zheng’s evidence is: “Sheila was a very particular eater and had specific preferences, such as apple juice, milk, custard, rice pudding, Yorkshire puddings, mince pies, bananas, and grapes. Shanaz understood Sheila’s needs and ensured these items were always available.” (7) Sheila’s evidence that she lost control of financial matters is inconsistent with the evidence of Ms Payne: “ Sheila's Awareness of Her Finances

1. Sheila was fully aware of how to handle her money

2. I paid her weekly rent, and she knew exactly how much was due and when it was payable.

3. Sheila was very alert and capable of managing her finances, which contradicts any claims that she was financially manipulated”

44. It is clear from Richard Nelson’s letter of 11 June 2015 that Mr Quinn (who is described by them as Sheila’s “companion”) arranged for Sheila to consult them, and accompanied her to the consultations. I note that the solicitor records that he saw no evidence of Sheila being persuaded to bring possession proceedings by Mr Quinn, and that his role was a supportive one. For reasons that are unclear, no possession claim was brought.

45. Ms Payne states that Mr Quinn visited Sheila daily and that Sheila told her that she was going to marry Mr Quinn, they were in love and she had put him in her will. When she (Ms Payne) asked Mr Quinn if he felt the same way, he immediately said “no, I’m a married man”. Sheila also told Ms Payne that Mr Quin did love her, but hadn’t told his wife. Eventually, Ms Payne was told by the care home (not by Sheila herself) that Sheila did not want any visitors anymore, including her long-time friends.

46. Sheila’s bank statements show that from July 2014, substantial cash withdrawals begin to be made from her bank account, in hundreds and sometimes one or 2 thousand pounds. The total sum withdrawn in the period July 2014 to September 2016 (when Sheila died) is £27,252. It is difficult to see how or why Sheila would have needed this money for her own expenses when she was living in a care home and bedbound. Since Mr Quinn was the only person in regular contact with Sheila during this period, I find that he took her to the bank (or cashpoint) to withdraw these sums. By way of example, on 5 August 2014, £5,000 in cash was withdrawn from Sheila’s account. Her hospital notes for 8 August 2014 record that “several days ago” she went for a bus ride (on which she must have been accompanied by Mr Quinn); and I find that he was with her when she withdrew that sum.

47. Sheila’s medical (hospital and GP) notes evidence her relationship with Mr Quinn and how he presented himself to her medical practitioners. In notes made on 14 January 2014, and of a clinic appointment on 30 September 2014, he is described as her son. In other notes her is referred to as her “friend “or as her friend, and in her final months as her next of kin.

48. Her GP’s records record on 9 April 2015: “Telephone encounter -*****, at ********** Lodge - says that her "*****" ***** has brought them in some nurofen for her. Not prescribed from us, on lots of analgesics already. Adv not to use given Gl complications. ***** is not a ***** of Sheila. He visits her most days, ***** and ***** at home concerned about his intentions, and has been raised already as a safe guarding issue. ***** has spoken to surgery and told us that he is *****. I will get popup on notes that we are not to discuss Sheila's records with him and any ***** he has should go through the ***** at ***** ***** who will then contact us.”

49. These notes must, I find, refer to Mr Quinn.

50. On 29 January 2016, the GP notes record a conversation with the manager of Sheila’s care home: “she refuses to eat when they try to feed her and waiting for Jonh to feed her…. Informed that Jonh wanted to take her power of Attorney…. home also not happy with Jonh ***** to her. But she has the capacity and this is what she wants.”

51. Sheila’s hospital Emergency Department Discharge Summary dated 3 February 2016 in respect of her admission on 2 February 2016 records: “Patient now says that she is not being fed at home and that want to kill her by sending her back there. Capacity intact. Nursing team here confirm that she has been saying the same for years. I belive there has been an element of coersion from frien John Quinn as patient was not of the same opinion 30mins ago.”

52. Later, the notes record Mr Quinn kissing Sheila in her hospital cubicle on that day. 2015 Will

53. On 23 May 2017, Damsons responded to a Larke v Nugus request from the first defendant’s then solicitors, Premier Solicitors. This was supplemented in May 2023 by the contemporaneous electronic file notes. From these documents, it is apparent that: (1) the initial contact with them was made by Kathleen Quinn, John Quinn’s wife, on 28 July 2014; (2) Mrs Quinn set up the payments for the will using Sheila’s debit card; and when it transpired that the debit card had been cancelled, Mr Quinn told Damsons that his wife would set up an alternative form of payment; (3) The contact number provided for Sheila was Mr Quinn’s mobile number, and he was with Sheila when she gave her instructions by telephone; (4) Sheila initially gave instructions for a will under which Ms West received £10,000 and Mr Quinn the remainder of her estate, and that will was “approved” on 3 September 2014; Mr Quinn was with her during that call; (5) On 20 January 2015, Sheila contacted Damsons, again by telephone, to alter the 2014 by removing the gift to Ms West; (6) In the file notes, Ms West is referred to as Margaret Carter, suggesting confusion; (7) Damsons made no inquiries as to Sheila’s age, which was 86 at the relevant time; (8) Sheila told Damsons that she wanted to change her will and leave her estate to Mr Quinn; but they did not explore the reasons with her and took no steps to satisfy themselves that pressure was not being exerted by Mr Quinn on her.

54. As noted above, Damsons did not arrange the execution of the 2015 will, and there is no evidence as to the circumstances surrounding its execution. Legal principles Trial on written evidence

55. As to the principles governing a trial on written evidence, I refer to para 14-009 of Theobald on Wills (19 th edn, 2021): “Where the court is asked to pronounce against what purports to be the last will of the deceased, evidence must be produced to show lack of due execution, incapacity or whatever ground is alleged for the invalidity of the will. It is the duty of the probate court to give effect if it can to the wishes of the testator as expressed in testamentary documents and it should not, therefore, pronounce against what it knows to be the last will in date without making an inquiry as to its validity.” Testamentary capacity

56. The relevant legal principles are well established and are derived from Banks v. Goodfellow (1870) LR 5QB 549. The testator must be able to: (1) understand the nature of her act, i.e. making a will, and its effects; (2) understand the extent of the property of which she is disposing; (3) comprehend and appreciate the claims to which she ought to give effect. She must not be subject to any disorder of mind as shall “poison [her] affections, pervert [her] sense of right, or prevent the exercise of [her] natural faculties”.

57. As to the burden of proof: (1) The burden is on the person seeking to establish the will (‘the propounder’) to establish capacity; (2) Where a will is duly executed and appears rational on its face, then the court will presume capacity; (3) An evidential burden then lies on the objector to raise a real doubt as to capacity; (4) Once a real doubt arises there is a positive burden on the propounder to establish capacity. See Key v Key citing Ledger v Wootton [2007] EWHC 2599 (Ch) , [2008] W.T.L.R. 235 at [5]. Knowledge and approval

58. The legal principles applicable to the issue of whether a testator knew and approved of the contents of a will are set out in Gill v Woodall [2010] EWCA Civ 1430 , [2011] Ch 380 . At [71], Lloyd LJ held that the correct approach to considering knowledge and approval was to ask a single question, namely had the testator understood: (a) what was in the will when she signed it; and (b) what its effect would be. That question should be considered in the light of all the available evidence, and the appropriate inferences to be drawn from that evidence. Undue influence

59. The law was summarised by Lewison J (as he then was) in Re Edwards [2007] EWHC 1119 (Ch) at para. 47 as follows (so far as relevant): “There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence; ii) Whether undue influence has procured the execution of a will is therefore a question of fact; iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition; iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud; v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense; vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will; … ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

60. However, as Mann J said in Schrader v Schrader [2013] EWHC 466 (Ch) [2013] W.T.L.R. 701: “It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles.” Fraudulent calumny

61. In Re Edwards , Lewison J also said: “vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside; viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;” Discussion and conclusions Testamentary capacity

62. In this case, the 2015 will is duly executed and appears rational on its face. There is therefore a presumption of capacity. The primary bases on which Ms Karim alleged lack of capacity were the mistake as to Ms West’s name when giving instructions to Damsons; and a reference in the hospital notes to a dementia diagnosis on 15 October 2015.

63. As to the mistake in Ms West’s name, a single mistake of this type (which may have been made by the person taking instructions) is not enough to show incapacity. As to a reference to dementia, this is also not enough of itself.

64. On the other hand, Sheila is referred to or treated as having capacity in the documents before the court on numerous occasions: Date Source 5 Jun 2014 Richard Nelson att note “she certainly has capacity” 29 Sep 2014 Hospital records Patient referral form: list of medical conditions does not include dementia 13 Oct 2014 Hospital records Consent to cataract operation 5 Nov 2014 Hospital records Consent to endoscopy 29 Jan 2016 GP records “she has the capacity” 2 Feb 2016 Hospital records “Capacity intact” 23 Mar 2016 Hospital records Dementia screening form: “Dementia diagnosis: No; Delirium diagnosis: Yes” 24 Mar 2016 Hospital records Letter of authority countersigned by doctor: “I am in sound mind and disposition” 6 Apr 2016 Hospital records Dementia screening form: “Dementia diagnosis: No; More Forgetful: No” “Alertness: Normal” Undated Care home referral sheet “Miss Carter is mentally alert is able to express her needs” 9 Sep 2016 Hospital records “Normal cognitive state: intact” 9 Sep 2016 Hospital records Consent to Do Not Resuscitate

65. In my judgment, therefore, the evidence shows that, although Sheila had vulnerabilities, she did not lack capacity. Knowledge and approval

66. As noted, there is no evidence as to the signing of the 2015 will. Damsons’ record of Sheila’s instructions shows that she intended to leave her entire estate to Mr Quinn. The will achieves that. It is not a complicated document, and is not difficult to understand. It is in my judgment, inconceivable that Sheila did not know what was in the will when she signed it, and what its effect would be. Undue influence

67. This is not a case where the court has any direct evidence of undue influence. The facts that point towards undue influence in the making of the 2015 will are as follows: (1) Sheila was 85 years old when she made the will and physically frail, with multiple co-morbidities; (2) She was also psychologically very vulnerable, suffering from severe anxiety when left alone and agoraphobia; in particular, she was very susceptible to changing her decisions; (3) Even in 2012, Sheila’s GP considered that she was at risk of undue influence; (4) In June 2014, Mr Cranefield recorded her as being “very easily influenced by other people around her with strong personalities”; (5) Mr Quinn created an emotional dependence on himself by Sheila, by frequent visits, telling Sheila that he was in love with her, and kissing her; (6) Mr Quinn isolated Sheila from Ms Karim, and her friends and support network, with whom she had previously been close; (7) He also told Sheila untruths about Ms Karim with a view to isolating her from Ms Karim; (8) When in the care home, Sheila refused to eat unless Mr Quinn fed her; (9) Sheila was therefore physically, psychologically and emotionally entirely dependent on Mr Quinn; (10) The hospital noted how Sheila changed her mind after 30 minutes with Mr Quinn and suspected coercion; (11) Sheila withdrew substantial sums of money (totalling about £28,000) from her bank account, when Mr Quinn was the only person she was in contact with, and for which no explanation has been provided; (12) Sheila did not initiate the process of changing her will – it was Mrs Quinn who made the first contact with the will writers; (13) The 2015 will was not prepared by Romain Coleman whom she had previously used for all her affairs, including the 2011 agreement and the 2012 will; (14) The instructions for the 2015 will were given by telephone with Mr Quinn present, and no attempt was made to ascertain whether they represented Sheila’s independent wishes; (15) Sheila had acknowledged her gratitude and indebtedness to Ms Karim in the 2011 agreement and the 2012 will, and her reasons for resiling from them were ill-founded and based on what Mr Quinn told her; (16) Sheila had no reason to exclude her long standing friend Ms West from her will.

68. In my judgment, this circumstantial evidence compels the conclusion that the making of the 2015 will was procured by some form of pressure exerted by Mr Quinn, founded on Sheila’s total dependence on him, and her pathological anxiety and fear of being alone. In this context, it is significant that Mr Quinn has not sought to defend the claim, nor to provide any explanation for any of his actions.

69. In addition, or alternatively, in my judgment, Sheila’s testamentary intentions were vitiated by fraud. She believed that Mr Quinn had a romantic interest in her and was going to marry her, and Mr Quinn must have been the source of that belief. Mr Quinn’s conduct (kissing her in the hospital) confirm this. Fraudulent calumny

70. If I am wrong about that, I nonetheless consider that the execution of the 2015 will was obtained by fraudulent calumny. The relevant untruths about Ms Karim were that she was poisoning Sheila; and that she was manipulating Sheila for her own financial advantage. Mr Quinn must have known these were untrue. Conclusion

71. For these reasons, I will pronounce against the 2015 will, and revoke the grant to the first defendant. In those circumstances, it is not necessary to decide the proprietary estoppel claim.