NEUTRAL CITATION NO. [2002] EWHC 1271 (Ch)
IN THE SUPREME COURT OF JUDICATURE
CHANCERY DIVISION
Friday 28th June 2002
Between:
-and-
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David Blayney (instructed by Champion
Miller & Honey) for the claimants.
Peter John (instructed by Richard West Freeman Christofi) for the defendant.
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1 In this case the executors of Mr Horace Glanville, who died on 22 April 1998, claim to set aside on grounds of undue influence a deed of gift made by him on 21 August 1997. I find the case difficult, but I have concluded that the claim must fail. I can well understand why the executors should have brought the claim. Some of the circumstances surrounding the deed raise questions about how it came to be executed, but my conclusion is that it would not be right for me to set it aside.
2. In the barest outline the case arises as follows.
(i) Mr Glanville was married twice. His first wife, Mary, died in 1980. He and Mary had three children, of whom their two sons, Alan and Michael, are the executors.
(ii) In October 1981 Mr Glanville married his second wife, Jean. She is the defendant. Over the years it became clear that she and Mr Glanville’s first family did not get on.
(iii) Mr Glanville owned the house in which he and Jean lived.
(iv) In the first part of 1997 it became known that Mr Glanville was terminally ill with cancer.
(v) On 21 August 1997 he executed the deed which the case is about. The deed transferred the house into the joint names of Mr Glanville and Jean as joint tenants.
(vi) On the death of Mr Glanville in April 1998 the entire ownership of the house accrued to Jean by survivorship.
(vii) The executors took advice about challenging the deed. They considered the possibility of a challenge on grounds of mental incapacity, but did not proceed with it. However, they also considered the possibility of a challenge on the ground that the deed was procured by undue influence on the part of Jean, and they did proceed with that challenge. Their claim for the deed to be set aside on grounds of undue influence is the case which came before me, and on which I now give judgment. The case is a classic example of the intractable disputes which can arise between a subsequent wife and the adult children of a first wife.
3. Mr David Blayney appeared for the claimants, and Mr Peter John appeared for Jean. I am grateful to both of them for their clear presentation of the materials, and for their helpful arguments.
4. Mr Glanville, christened Horace but generally known as Jim, was born on 11 June 1913. He became a printer. There was, and still is, a family company, HW Glanville & Sons Limited. Mr Glanville used to be a shareholder, but now the company is owned by his sons Alan and Michael. They and another family member bought Mr Glanville’s shares at around the time when he married Jean (of which more later).
5. At a date which I do not know exactly Mr Glanville married his first wife Mary. They had three children, Alan, Michael and Kathleen. Alan and Michael were born in the late 1930s. I think that Kathleen (now Mrs Sears) was born somewhat later. I will call Mr Glanville’s children by his marriage to Mary, together with their wives or husband and children, ‘the family’. In form this is a case between Mr Glanville’s executors and Jean, but in reality it is a dispute between the family and Jean. The two executors are members of the family in any case.
6. At all times relevant to this case Mr Glanville lived at 28 Kimberley Way, Chingford, London E4, which I will call ‘the house’. Jean still lives there today. The house is the subject matter of this case. The evidence did not include a detailed description of it. But it was valued at about £140,000 at Mr Glanville’s death in 1998, so I assume that it is a typical and unexceptionable family house in an outer-London suburb. Mr Glanville was the sole owner. By the times with which I am concerned there was no mortgage secured on the house. It was by far the most valuable item in Mr Glanville’s estate.
7. At some time in the 1960s Mr Glanville met Jean. He used to go to the greyhound racing at Walthamstow, and she worked there. I am not sure whether she worked behind a bar, or on a counter selling betting tickets: perhaps she did both at different times. She and Mr Glanville became friends. She was 13 years younger than he was, having been born in 1926. The family say that there was an affair between the two of them in the 1960s and possibly thereafter. Jean denies it, and says that they were simply friends. I do not need to make a finding about this, and I am not going to make one. What I do find is that the family believed then, and still believe now, that there was a sexual relationship between Mr Glanville and Jean. It seems also that Mary, Mr Glanville’s first wife, believed the same thing, and that it was the cause of much unhappiness in the years before Mary died. The family do not like Jean (nor does she like them), and their beliefs, whether well-founded or not, about what was going on between their father and Jean have something to do with it.
8. Jean was also married, but her husband died at much the same time as Mr Glanville’s wife, Mary. The friendship between Mr Glanville and Jean, if it had ever fallen away, revived soon after the deaths of their respective wife and husband. Within about three months Jean moved into the house and commenced to live with Mr Glanville. The family did not particularly like it, but in their evidence they all very fairly said that their father was just as much responsible as Jean. I ought to have mentioned that they said much the same about the extra-marital affair which they, rightly or wrongly, believed had taken place between their father and Jean during their mother’s lifetime. If anything they were more critical of him than of her.
9. Mr Glanville and Jean were married on 29 October 1981. He was 68; she was 55. For a time they seem to have had a reasonably close relationship as husband and wife. They used to go dancing together, and they went away on holidays. However, after two or three years, although they continued to share the house, and although Jean ran the house as a typical housewife does, they started in other ways to live separate lives. Mr Glanville stopped going to dances with Jean (dancing having in the past been her enthusiasm rather than his), and they took separate holidays. Mr Glanville, who had stopped working in the family company around the time when Jean started to live with him in the house, started going back to work every day. He left the house fairly early in the morning, and after work he often called in at the pub for a drink or two before he got home. Quite often, by the time he got home, Jean would have gone out for the evening with some of her friends. She always left meals ready for him.
10. In 1991 the possibility of a divorce between them arose, and each instructed solicitors. Nothing came of it in the end, but it was seriously discussed. Jean played this down in her witness statement. She wrote: ‘I did get one solicitor’s letter, and the result of that was a reconciliation. We continued to live together as husband and wife during that period of argument and we forgot about the dispute.’ It is, however, clear from the documents that there was more to it than that. There are several solicitors’ letters negotiating about financial terms for a separation (although I do not know whether Jean herself saw all of them); the correspondence went on into 1994, when it petered out. So there was more to it than Jean’s witness statement would indicate. Nevertheless the matter does not seem to me to have been pursued particularly vigorously on either side. In Jean’s oral evidence she said that she did not like the idea of a separation or divorce, but if it would have made Mr Glanville happy she would have done it. She was also, understandably and reasonably, concerned about her financial position. She said that she was advised to stay where she was, because Mr Glanville simply did not have enough money to make a financial settlement which would have provided her with somewhere to live.
11. After the idea of a separation or divorce ‘faded’ (Jean’s word in cross-examination) the two of them continued to share the house as they had done for ten years or so. Jean ran the household affairs, but they did very little together as a conventionally married couple. It was not a loving relationship, but the impression which I have formed is that it was a working relationship with which each of them was content to go along. It continued in that way until Mr Glanville’s final illness, which I will describe below.
12. I should say something about the relationship, or lack of it, between Jean and the family. When Mr Glanville and Jean were first married the family were not particularly happy about it, but they were willing to try to get on with Jean. For example the whole family, including Mr Glanville and Jean, used to meet occasionally, sometimes for meals at the home of Michael Glanville and his wife Maureen. However, after a couple of years or so it was not working out. Jean and the family did not get on, and they scarcely ever met. The family did see their father regularly. Alan and Michael saw him every working day at the factory, and they also used to take him out to the pub for drinks. Kathleen also used to see him, though not as often as Alan and Michael did.
13. There is one specific event which I should describe. In 1991 Mr Glanville made a will. He nominated his sons Alan and Michael to be his executors. He left his residuary estate to (in the events that happened) Alan, Michael, and Kathleen in equal shares. However, the significant clause for the present case was the one which dealt with the house and Jean’s position in relation to it. The house was by far the most valuable item which Mr Glanville owned. Clause 2 of the will was as follows:
I DIRECT that my wife JEAN MABEL GLANVILLE shall have the right provided she survives me to occupy the property known as 28 Kimberley Way Chingford London E4 for so long as she survives me does not remarry or cohabit with another person does not voluntarily move and provided she maintains the said property in good order at her own expense and discharge all outgoings of whatsoever nature in respect thereof.
Jean said that she was never told about the will. Mr Blayney said that that was not necessarily accepted by his clients, but I accept it. The will was witnessed by employees at the company premises, and was kept in the safe there. I infer that Mr Glanville executed it there, and that he did so because he did not want Jean to know about it. At first sight the provision giving to Jean a right of occupation in the house seems to be fair and even generous-minded on Mr Glanville’s part, particularly since at the time of the will Mr Glanville had instructed his solicitors in connection with a possible separation or divorce. However, Jean’s reaction, as explained in her oral evidence, was interesting. She believed that the clause must have been inspired by someone (not her husband) who hated her. I think that her point is that she would never have been able to comply with the condition of maintaining the house at her own expense and discharging all of the outgoings, so that the clause, though superficially beneficial to her, would in practice mean that she would be left after her husband’s death with nowhere to live. However, all of that was her reaction after her husband died. In his lifetime she knew nothing about the will. Indeed she said that at one stage during his terminal illness he told her that he had not made a will.
14. I now come to Mr Glanville’s final illness. He started to feel ill in February 1997. By mid March cancer had been diagnosed. He was in and out of hospital from then on, partly at Barts, partly at Whipps Cross Hospital in Leytonstone, and partly at an establishment called The White House, where he sometimes went for weekends to provide Jean with ‘respite care’. For a time he used to attend a Day Centre attached to Whipps Cross Hospital. He died in a private care home on 22 April 1998.
15. For nearly all of the time that he was not in hospital during the last year of his life he lived in the house, and basically Jean looked after him, with regular and necessary assistance from visits by nurses and doctors. Despite being in hospital on a number of occasions, most of his last year was spent at home. Occasionally he spent weekends with Michael Glanville and his wife Maureen. At one stage there was a disagreement between Jean and the family over weekend arrangements. The family were complaining that Jean did not consult them, but simply arranged for Mr Glanville to go into the White House without giving them the chance to have him for a couple of nights. This particular issue largely resolved itself. At some time after July 1997 Alan Glanville met Jean, who was accompanied by her daughter and niece. Jean accepted the family’s point of view, and said that she would keep the family informed of what was happening from time to time. There had earlier been a very different occasion when the hospital wanted to see the house to assess how Mr Glanville could be cared for there. The hospital specifically asked for a member of the family as well as Jean to be there, so Kathleen attended, having attempted unsuccessfully to explain the position to Jean on the telephone. There was a very unpleasant scene which ended with Jean expelling Kathleen from the house and Kathleen shouting an insult at Jean through the letter box - something which I am sure was totally out of character for Kathleen and which she very much regrets.
16. I believe that in the course of Mr Glanville’s final illness Jean tended to be possessive and to an extent resentful of the desires of the family to be involved in the care of their father. I think that Jean was unreasonable in that respect. However, the family had, as she saw it although they would no doubt have a different point of view, shunned her for something like fifteen years. She was bearing most of the burden of caring for a sick and dying man, and it was a very real and heavy burden for a lady in her seventies to sustain. I do not want to go into details, but there were aspects of Mr Glanville’s final illness which were unpleasant. Often Jean had the help of visiting nurses, but not always. She gave evidence that, on one occasion when she and her husband were going home from hospital, he said to her: ‘We can make it. Can’t we?’ She might have made that up, but I do not think that she did.
17. For all that Jean and her husband had had a less than close relationship for many years, in his last year (when, if I understand some of the hospital documents correctly, he knew that he had been diagnosed with cancer) he looked primarily to her for support and domestic care. She knew that he was doing that, to the extent that in my view she unfairly depreciated the concerns of the family and the anxiety of the family members to do what they could as well. All the same, a lot was being asked of her by the circumstances as they had turned out, and I believe that she did the best she could. It is, perhaps, understandable if she was on occasions (and to a degree still is) unreasonably prickly over the relationship with the family. There is a converse of this. The family are inclined to depreciate the efforts which Jean made to care for Mr Glanville during his final illness, but in my view they are unfair in that respect. After Mr Glanville died Jean received a card from the Macmillan nurse, Jenny, who had regularly visited the house. The card conveyed Jenny’s ‘best wishes on the sad death of Jim.’ It went on: ‘I know how hard you worked to look after him in the last few months of his life.’ Jean also received a letter of condolence from Dr Rowena Taylor at Whipps Cross Hospital. One sentence read: ‘I am sure that your constant care and support can only have helped him greatly and our thoughts are with you at this time.’
18. The matters to which I have referred in the last two paragraphs may have little impact on the final result, but I would not like the parties to think that I am unconscious of the sensitivities and emotions which lie behind this case.
19. I move on. The evidence is that before Mr Glanville’s final illness he had been a lively and stimulating person who liked to keep his mind active in various ways. This changed as his illness progressed, as, sadly, one would expect. From time to time he suffered from confusion, particularly at a time in July 1997 when he spent just over a week in Whipps Cross Hospital. The family believe, and give evidence to the effect, that the confusion continued after Mr Glanville came out of hospital and returned home to share the house again with Jean. This is of some importance, because the critical deed of gift, which the case is all about, was executed within a month of his return from hospital. However, the medical evidence is against the family on this. The hospital apparently undertook some sort of mental test on admission and discharge. I assume that this is standard procedure, at least for elderly patients. On Mr Glanville’s admission to Whipps Cross on 14 July 1997 his score was 6/10. On discharge on 23 July 1997 it had reverted to 10/10, which I understand to signify normal. The family do not accept the implications of this, but I do not think that I can disregard the objective evidence of the hospital’s test scores. Mr Glanville had been suffering from a chest infection when he went into hospital. Professor Hodkinson (of whom more later) states that ‘an acute confusional state is very common in elderly patients with such infections and, typically, clears quite rapidly when the infection is controlled.’ I cannot accept that Mr Glanville’s confusion continued after he has returned home from the hospital.
20. I can now turn to the specific circumstances in which the contested deed of gift was executed. The family knew nothing about it, so that much of the account which follows derives from the evidence of Jean, As such it is challenged by the family in many respects. As I proceed I will try to indicate the matters which are not in dispute and those which are, together with my conclusions on them (or at least on those of them where I think that I need to come to conclusions). The central and undisputed fact is that on 21 August 1997 a deed was executed by Mr Glanville and Jean (who was called ‘the Donee’) whereby Mr Glanville, as sole freehold owner of the house, conveyed it to himself and Jean as joint tenants. The conveyance was expressed to be in consideration of natural love and affection for the Donee.
21. Jean’s evidence was that the origins of the deed lay in something said to her and her husband by personnel from Whipps Cross Hospital. There is, however, a difference between her written witness statement and what she said in oral evidence. In her witness statement she said that a doctor at the hospital, Dr Taylor, asked about arrangements post death. On one occasion Dr Taylor asked about the house and said that Mr Glanville should put it into joint names if that was his wish. The advice was repeated by a nurse, who said that it should be done so that there would be no trouble after death. However, in oral evidence Jean said that the matter was raised at the house, by a lady visitor from the hospital at a time when Mr Glanville was living at home having returned from the hospital. I assume that the lady had a position in the nature of an almoner.
22. It is unsatisfactory that there is this stark discrepancy between Jean’s written evidence and her oral evidence. I think that it is unlikely that Dr Taylor would have gone into financial and property matters with patients. The executors’ solicitors wrote to Dr Taylor when they saw Jean’s witness statement, and she replied to the effect that financial arrangements were not discussed with patients unless specific requests were made. She had no personal recollection of the issue of Mr and Mrs Glanville’s house being discussed in any detail. However, I do think it possible that the question of whether anything should be done about the house was first brought to the notice of Mr Glanville and Jean by someone from the hospital. A visitor such as the lady whom Jean mentioned in her oral evidence seems a much more likely person to have mentioned the matter than a doctor like Dr Taylor. I would not have expected a visitor from the hospital to have given positive advice that the house should be transferred into joint names, but it would not surprise me if a hospital employee who regularly helped patients and their families with the non-medical aspects of terminal illnesses said to Mr Glanville and Jean that they should think about the arrangements for the house. Such a hospital employee might also have mentioned that a transfer into joint names was sometimes made in similar circumstances. I do not think that an employee would have gone beyond that, except perhaps to say that, if Mr Glanville and Jean did want to do something about the house, they would need to consult a solicitor.
23. At all events, whether the idea of the house being transferred into joint names originated in something said by a hospital employee (which is what Jean says) or whether it was all Jean’s idea (which is how the family would wish me to view it), she obviously talked about it to her husband, and the two of them agreed to consult a solicitor. Jean gave no detailed evidence about the, conversation or conversations between herself and her husband. In her witness statement she writes that she discussed it with Mr Glanville. She also writes that he told her and nurses that he wanted to put the property in joint names. In oral cross-examination she said that the subject was raised with her husband and herself by the lady from the hospital; Mr Glanville had one discussion with herself (Jean), and she thinks that she asked him again before she rang the solicitor. The paucity of evidence about what passed between Jean and her husband at this stage is, perhaps, inevitable in a case of this sort, but it adds to my difficulties, because it means that, on the central issue in the case (whether or not Jean used improper means to induce her husband to agree to the transfer of the house) I am in large measure left to surmises and to considering what presumptions should guide me in the absence of direct evidence.
24. Once Mr Glanville had agreed in principle, whether by reason of undue influence or not, to transfer the house into joint names a solicitor was needed. Jean’s niece told her to contact Mr Howard Freeman, a partner in a Walthamstow firm called Richard West Freeman Christofi. Mr Freeman gave evidence before me. Jean went to see him, and informed him that Mr Glanville wanted to transfer the house into joint names. She had never met Mr Freeman before. She went alone, because her husband was too ill to go with her. She obviously told Mr Freeman about her husband’s age and illness, because he said that there was a special procedure which he followed in such cases.
25. I will come to that later, but first I wish to say something about the date of Jean’s visit to Mr Freeman’s office. I realise now, having reread the documents and my notes, that the position is not entirely clear about this. Unfortunately Mr Freeman’s firm cannot locate the file for the transaction, despite having searched rigorously for it. At one stage the executors commenced an action against the firm seeking production of the file. In that action the executors made a written request for information. One of the questions was: on what date was the firm first instructed in respect of the deed of gift? The reply was as follows: ‘Mr Howard Freeman of the Defendant was instructed on 8th May 1997 when he first met Mrs Glanville who came into the office to discuss a Deed of Gift.’ In cross-examination Mr Freeman was shown the reply. He said that he assumed it was correct, and that there was a diary entry. However, in his witness statement he had written: ‘I was instructed in or about late July of 1997 to prepare a deed of gift of 28 Kimberley Way. I was given the initial instruction to prepare the deed of gift by Mrs Glanville at my offices in Walthamstow.’ Unless my note is incomplete I do not think that he was asked which date was correct. Was it 8 May, or was it late July? As far as I know the firm had not produced a diary confirming the 8 May date, although there must have been some basis for the clear reply that that was the date when Jean went to the office. I probably must proceed on the basis that the visit was on 8 May, but I have to say that I feel uncomfortable about this particular detail. Given that the deed of gift was not executed until 21 August, early May seems a long time before then for the instructions to have been given. Also, on 8 May Mr Glanville was in hospital, and when Mr Blayney suggested to Jean that it was in hospital that she had got him to agree to a transfer of the house into joint names, she said: ‘No, it wasn’t like that at all. I don’t remember anything like going from hospital to there.’ She accepted that she was getting confused, and that she had no clear recollection of dates.
26. I ought to explain why I have gone into some detail about this apparently minor matter of when it was that Jean saw Mr Freeman at his office. Mr Blayney put a suggestion to Jean that she had arranged matters with Mr Freeman early in Mr Glanville’s terminal illness, but it took her something like three months to pressurise her husband to agree to it. The long time-lapse between the two events is said to support the executors’ case that the deed of gift was procured by undue influence exerted by Jean. I cannot rule the possibility out, but I am not convinced. It assumes a level of premeditation on Jean’s part which I, after observing her for quite some time in the witness box, think is improbable. Also, it would require there to have been two contacts between Jean and Mr Freeman before the visit to the house: the original one when she came to the office, and then a second one to ask Mr Freeman to arrange to come to the house and meet Mr Glanville. In the absence of Mr Freeman’s lost file it is impossible to be sure that that did not happen, but it is not the way that Mr Freeman remembers it.
27. Whatever the date on which Jean saw Mr Freeman at his office, he advised her that, because there might otherwise be questions raised about Mr Glanville’s mental competence to execute the deed, a letter from Mr Glanville’s doctor should be obtained, and that, before the deed was executed, he (Mr Freeman) would wish to see Mr Glanville alone. The doctor’s letter was provided by Dr David Aitchison, the senior partner of the general practice at the Chingford Health Centre. The letter was headed ‘To whom it may concern’. The relevant paragraph reads as follows:
This man has carcinoma bronchus and is terminally ill. He has been a patient of this practice for many years and I have visited him repeatedly and believe him to be mentally sound and able to make informed decisions about his finances. Accordingly, I have no hesitation in supporting his bid to move his affairs to a joint account with his wife.
The letter is dated 7 August 1997. (I mention in passing that this date is another factor which leaves me with a lingering feeling of unease about whether Jean’s visit to Mr Freeman’s office really was as early as 8 May.) One of Dr Aitchison’s visits to the house had been on 24 July 1997. He made manuscript clinical notes on the occasion of his visits. On 24 July, as well as noting various medical matters, he wrote: ‘Wishes to transfer house to joint names of Mr and Mrs Glanville.’
28. Mr Freeman prepared a draft deed of gift, and made an appointment to call at the house with a view to it being executed. He called on 21 August 1997. I will quote in full the relevant paragraph in his witness statement:
I made the visit on a bright and sunny day and I remember the visit very clearly. Also I had previously made only one or two home visits to clients, and even today I have made only a handful and so these stick in the memory. Mrs Glanville was in the garden and she showed me to Mr Glanville who was sitting in a chair in a lounge room with the curtains drawn for shade. Mrs Glanville left the room again and I had a general discussion with Mr Glanville. I was quite happy that he was mentally fit. I explained the nature of the document and what it would mean after his death (i.e. that the property would go immediately and solely into his wife’s name) and I can remember him being quite satisfied and glad the matter had been dealt with. Mr Glanville did not give any indication that he did not understand the discussions which we were having.
I do not think that Mr Freeman’s answers in cross-examination materially affected the foregoing evidence. He said in relation to his conversation with Mr Glanville that there was a general chat about the weather and the like. He knew that Mr Glanville had been ill, and wanted to check that he was mentally fit and could proceed. Mr Freeman did not discuss with Mr Glanville other things which he could have done, nor did he consider whether what Mr Glanville was doing was a good thing or not. He was there to explain the document and to be sure that Mr Glanville understood it. It was not his function to advise whether it was a good thing or not. He did not know that it was dependent on Jean whether Mr Glanville stayed at his own home or went into a nursing home or similar institution. He added, however: ‘But she was his wife. They were a married couple. I wouldn’t have considered it different from any other similar situation.’
29. I am not sure how long Mr Freeman spent alone with Mr Glanville. Mr Freeman did not give an estimate. Jean’s witness statement says that she believes it was about three quarters of an hour. Mr Blayney suggested to me that it would not have been as long as that. He may be right, but it is certainly the case that Mr Freeman had all the time alone with Mr Glanville which he thought that he needed. After his discussion with Mr Glanville he asked Jean to rejoin them, and Jean and Mr Glanville executed the deed.
30. There is not much more to record. After the deed had been executed Mr Glanville’s illness progressed. For most of the time he was at the house in the immediate care of Jean, but with the help of visiting nurses, doctors and others. Some weekends he spent in respite care to give some relief to Jean. Some other weekends he spent with members of the family, in particular with Michael and Maureen Glanville. He spent Christmas 1997 with them, and he also visited his daughter Kathleen and her husband over the Christmas period. He never told any of the family that he had transferred the house into the joint names of himself and Jean. He died in a private hospital on 22 April 1998.
31. Alan Glanville writes in his witness statement that on the day after Mr Glanville died he sent a copy of the Mr Glanville’s will by fax to Jean’s solicitors. (There is a sign there of the state of relations. There was no direct personal contact between the family and Jean. My sense of it is that the family did not want to talk to Jean, and that she did not want to talk to them either. If they had tried to speak to each other it would quite probably have degenerated into an unpleasant row, which none of them would have wanted in the immediate aftermath of Mr Glanville’s death. A different point arising from Alan Glanville’s evidence on this matter is that I do not know to whom he was referring when he wrote that the copy of the will was sent to Jean’s solicitors. She did not have any solicitors at the time. Perhaps he sent the copy to the solicitors who had acted for Jean some years earlier when a separation or divorce was being considered.) On the next day Jean’s daughter, Sue, rang Alan Glanville and told him that there was a deed of gift in existence. According to Jean’s evidence, the first that she knew of the will was when the family notified her of it after her husband’s death, and according to the family the first that they knew of the deed of gift was when Jean’s daughter told Alan Glanville about it, also after Mr Glanville’s death. I accept the evidence of both sides in this respect.
32. The deed of gift obviously came as a huge shock to the family. As it seems to me, they simply could not understand how their father could have done what he did. I do not see it in quite so stark a way, but I am more personally detached from the fractured relationships which underlie this case. I understand how the family felt, and still feel, but of course that does not mean that I necessarily think that they have a case which will prevail in court.
33. The family decided at a quite early stage that they were going to challenge the deed of gift. By 18 May 1998 the executors’ present solicitors had been consulted by Alan and Michael Glanville ‘with regard to an intended challenge to the deed.’ At that time the intention was that Jean should not know of the intended challenge. The present proceedings were not commenced until June 2001. There must have been exchanges between May 1998 and June 2001, but the documents in the bundle are uninformative about them. I assume that some communications were without prejudice and that others were privileged. The claim form and particulars of claim allege only undue influence, but I think it is clear that the family considered carefully the possibility of challenging the deed on the ground that Mr Glanville, being ill and confused on or about 21 August 1997, did not have sufficient mental capacity to enter into it.
34. I have referred earlier to the report which the executors obtained from Professor Hodkinson. The report in the bundle bears a very recent date, but I imagine that Professor Hodkinson was first instructed considerably earlier. He states that he had been instructed ‘to report on the late Mr Glanville in respect of his mental capacity and ability to give instructions at the time he signed a deed of gift dated 21 August 1997 and to the Possibility of undue influence at the time.’ He reviews the evidence and summarises his conclusions in two paragraphs, as follows:
15 In my opinion, on balance of probability, Mr Glanville had the capacity to give instructions and to sign a deed of gift on 21 August 1997.
16 I am well satisfied that at the time of giving instructions and signing that deed on 21 August 1997, Mr Glanville’s health and life circumstances were such as to render him significantly vulnerable to undue influence from his wife. However, it is clearly a matter for the court to decide, on their evaluation of the conflicting factual evidence, whether such undue influence was exercised.
I assume that the executors knew for some time that Professor Hodkinson was going to express the conclusion in paragraph 15, and that for that reason, when they formally commenced proceedings, they raised no case of want of mental capacity but relied solely on undue influence.
35. There were six witnesses on behalf of the executors: Alan Glanville, Michael Glanville, Kathleen Sears, Maureen Glanville (Michael’s wife), Ian Glanville (Michael and Maureen’s son), and Jean Bye. A general comment on their evidence is that much of it seems to me to have been prepared at a time when the executors still had in mind challenging the deed of gift on the ground that Mr Glanville was mentally incapable when he made it. For example Alan Glanville writes in his witness statement: ‘I am not satisfied that my father was able to make reasoned decisions at that time or later in August 1997 when it is said that the deed of gift was signed.’ And later: ‘.. if he was not able to do such things as he enjoyed, it was unlikely that he could make reasoned decisions of his own concerning the deed of gift.’ Michael Glanville wrote that he could not accept Dr Aitchison’s letter of 7 August that his father was mentally sound and able to make informed decisions about his finances at that time. Maureen Glanville, having described Mr Glanville’s confused state in mid 1997 and later, sums up her evidence as follows: ‘I can say with the utmost confidence that he would not have had any knowledge of the document, the deed of gift, he signed.’ Ian Glanville gave evidence about how confused his grandfather was when he was in Whipps Cross Hospital in the middle of 1997. The problem with all of this evidence is that the executors’ case as pleaded does not allege mental incapacity. The case now advanced is that Mr Glanville may have understood what he was doing, but he only did it because of undue influence exerted upon him by Jean.
36. In the nature of things the family cannot give much in the way of direct evidence about how Jean exerted the undue influence which they allege. They were not there in the house with their father and Jean. Michael Glanville does describe an occasion in late July or early August when he took his father to the pub, and his father said that Jean was ‘on at him again’, wanting him ‘to make the house joint.’ Jean Bye is a secretary who works at the printing company. She remembers Michael telling her in August 1997 about this conversation.
37. The members of the family were, in my opinion, good witnesses. They gave their evidence clearly. To a degree it may have been affected by their dislike of Jean, but they were measured and honest in everything they said. They struck me as straightforward and agreeable persons. But apart from what Michael told me his father had said in the pub, their evidence, so far as it bore directly on whether or not Jean had exerted undue influence on their father, could not go much beyond statements that they could not believe that Mr Glanville could have executed the deed of gift of his own volition. Michael Glanville, for example, said in cross-examination on several occasions that he could not believe that the deed was his father’s wishes. I accept without hesitation that he is totally sincere in that view, and that his brother, sister, wife and son are all equally sincerely of the same view. I do not question for a moment that the family simply cannot understand how Mr Glanville can have done what he did if he was in a sound mental condition and was taking decisions for himself. However, I cannot decide this case simply on the beliefs, wholly genuinely held as they are, of the members of the family.
38. Jean gave evidence on her own behalf, and also adduced evidence from Mr Freeman, the solicitor who prepared the deed and who explained it to Mr Glanville before it was executed. I have already summarised Mr Freeman’s evidence, which is not significantly disputed. It is of course unfortunate that his firm’s file of the transaction cannot be found. I have also referred earlier to several points from Jean’s evidence, including that her husband did not tell her about the will, that the possibility of the house being transferred into joint names was first raised by a lady from the hospital, and that Jean spoke to her husband about it, perhaps twice, before she contacted the solicitors. I have a note of her saying in cross-examination: ‘After the lady had been I said ... Do you want to do this? It is up to you.’
39. Mr Blayney was critical of Jean as a witness. My appraisal of her was that simply in oral evidence she gave her evidence quite well. Her answers seemed to me to be spontaneous and not contrived. She is clearly a forceful personality, and that came through in her evidence from time to time. I suspect that she can be difficult and, perhaps, short-tempered at times. I accept that I must be cautious in relation to Jean’s evidence. Mr Blayney’s main criticisms were not of her oral evidence taken by itself, but rather of discrepancies between what she had said in her witness statement and what she said in cross-examination. I accept that there were discrepancies, and they must give me some concern. I mention four points. (1) In her witness statement she had given an overly rosy picture of her relationship with Mr Glanville in the later years of their marriage. She described their relationship as ‘normal’, whereas, as Mr Blayney says and I accept, it was anything but normal. They lived in the same house, and Jean ran the domestic aspects of the establishment, but until Mr Glanville’s final illness they were living separate lives and each was going his or her own way. (2) A point which I have mentioned already: she gave in her witness statement an account of the prospective separation and divorce negotiations which was understated. The negotiations were a good deal more than one letter after which it all faded away. (3) In ways which I will not go into in detail her witness statement contained a number of hostile comments about the family, in particular about Alan and Michael Glanville, which were unjustified. The statement creates the impression that the relationship between Mr Glanville and his sons was always poor, whereas I am satisfied that it was good. (4) There is the point which I have mentioned earlier of who first mentioned the possibility of the house being transferred into joint names. According to the witness statement it was Dr Taylor at the hospital (which is very unlikely), whereas according to the oral cross-examination it was a lady from the hospital who came to the house.
40. I do not think that Jean was a deliberately deceitful witness, but I do not think that I can treat her as a completely reliable witness either. While I prefer her oral evidence to her witness statement where the two differed, I do not think that I should necessarily accept everything which she said in oral evidence. However, that does not mean that I largely discount her evidence or that I disbelieve most of what she said.
41. Undue influence is a principle of equity established entirely through case law. Many of the seminal cases were decided in the 19th Century, but I have the great advantage of being able to take the basic principles from the recent and authoritative review and restatement of the law by Lord Nicholls in his speech in the House of Lords in Royal Bank of Scotland v. Etridge [2001] 4 All ER 449. The case, and associated cases heard with it, ultimately depended on how far a bank which is proposing to lend money to a husband or to a husband’s company can take a charge over, not just the husband’s interest in the matrimonial home, but also the wife’s interest without being at risk of having the charge set aside on the grounds that (1) the charge had been obtained by undue influence exerted upon the wife by the husband and (2) the bank had constructive notice of the wife’s right in equity to have the charge set aside. More specifically, Etridge and the associated cases concentrated on what was to be expected of a solicitor instructed to advise the wife in the circumstances contemplated by the decision of the House of Lords in the earlier decision of Barclays Bank plc v. O’Brien [1994] 1 AC 180. So the central issue in the case concerned the effect on a third party, usually a bank, of undue influence alleged to have been applied between two other parties, typically a husband and a wife. However, Lord Nicholls also described the law as between the two principal parties. In the usual case the issue is whether a husband exerted undue influence upon his wife. In the present case the issue is whether a wife, Jean, exerted undue influence upon her husband, Mr Glanville. Lord Nicholls’ discussion is, of course, equally applicable either way.
42. Lord Nicholls describes the general principles applicable in undue influence cases in the early paragraphs of his judgment, principally in paragraphs 6 to 25. It would be excessive for me to quote all those paragraphs verbatim in this judgment. They should, however, all be read carefully. They have all been cited to me. I believe that I have read them all carefully, and that I have taken full account of them in this judgment. At the risk of failing to do full justice to a most important and valuable analysis of the law, I will attempt to pick out some elements from Lord Nicholls’ judgment which may be of particular relevance to this case.
43. A transaction is not set aside merely because persuasion was applied by one party to the other before the other agreed to enter into it. In paragraph 7 of the judgment Lord Nicholls refers to ‘unacceptable forms of persuasion.’ A few lines later he says: ‘If the transaction was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or ‘undue’ influence.’ (My emphasis in all cases.) There are two forms of unacceptable conduct. One is where there are ‘overt acts of improper pressure or coercion such as unlawful threats’ (paragraph 8). There is no evidence of that kind in this case (for example, no evidence that Jean said to Mr Glanville that, unless he put the house into joint names, she would refuse to look after him so that he would have to go into a home), so this case focuses on a second situation where the court may proceed on the basis that there has been unacceptable conduct. Lord Nicholls describes it in this way: ‘The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage.’ In paragraph 10 Lord Nicholls says: ‘... the question is whether one party has reposed sufficient trust and confidence in the other ...’ In paragraph 11 he adds: ‘The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person had been exploited. ... Several expressions have been used in an endeavour to encapsulate the essence ... trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other.’ The references to vulnerability are obviously significant in this case, where it is accepted that Mr Glanville’s state of health in August 1997 did mean that he was in a vulnerable state.
44. Paragraphs 13 to 19 of Lord Nicholls’ judgment are preceded by the heading ‘Burden of proof and presumptions.’ This is an important area for the present case, because a major part of Mr Blayney’s case is that Jean is presumed to have obtained the benefit of the deed of gift by undue influence, and the burden rests on her of disproving it. Paragraph 13 begins as follows:
Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule.
So the starting position in the present case is that, if the executors are to succeed in having the deed of gift set aside on grounds of undue influence, they have to prove it. They may, however, be able to go some way to proving it by showing circumstances from which undue influence can by inferred in the absence of evidence to the contrary:
Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. (Paragraph 14)
If the complainant gets that far, the evidential burden shifts to the defendant, who will now have the burden of proving that he or she did not procure the transaction by undue influence. If he or she cannot do so the transaction will be set aside. Lord Nicholls describes a case of that sort in the following way:
The court has drawn appropriate inferences of fact upon a balanced consideration of the whole of the evidence at the end of the trial in which the burden of proof rested upon the plaintiff. The use, in the course of the trial, of the forensic tool of a shift in the evidential burden of proof should not be permitted to obscure the overall position. These cases are the equitable equivalent of common law cases where the principle of res ipsa loquitur is invoked. There is a rebuttable evidential presumption of undue influence. (Paragraph 16)
45. I should mention for completeness that there are particular relationships where the law automatically presumes that undue influence has been exercised, so that the onus of disproving it rests on the alleged wrongdoer from the start. Solicitor and client, doctor and patient, and parent and child are instances of this. However, husband and wife (or wife and husband) is not one of them, so in a husband and wife case the complainant (the executors in this case) has an initial burden of showing that there are particular circumstances on the basis of which the court should infer that undue influence has been exercised by the husband on the wife (or vice versa), so shifting the evidential burden on to the defendant. In my view the most important single issue in this case is whether the executors have shown that particular circumstances existed here such that I should infer that Jean exercised undue influence over her husband, unless she can discharge the burden of showing that she did not.
46. I shall consider how the principles explained by Lord Nicholls apply to the present case in the next section of this judgment. For the moment I shall leave my review of the law at that, but adding that Lord Nicholls’ explanation should be read in full in preference to my condensed version of it in the foregoing paragraphs. There are of course many other cases which give further guidance as to the law. I shall refer to some of them from time to time in the context of my discussion of the issues in the present case. To that discussion I now turn.
47. I begin by making four points about the ambit of the undue influence principle. The points, once spelt out, may seem to be fairly obvious, but I think that is worthwhile that they should be spelt out. The first point is that, for a transaction to be set aside on grounds of undue influence, it is not enough to show that the transaction was disadvantageous to the complainant and that the other party to it probably realised that at the time. It is also necessary to establish by evidence and inference that the disadvantageous transaction was procured by undue influence. In a strong case the court may be prepared to infer that, in the absence of evidence to the contrary, the transaction was so obviously disadvantageous that it must have been procured by undue influence, but the court will not do that as a matter of course.
48. The second point is that the principle of undue influence is not one for the setting aside of something which appears to the court to have been foolish or unnecessary or unreasonable or excessive. This is clearly illustrated by the Court of Appeal decision in re Brocklehurst [1978] Ch 14. In that case a wealthy landowner, six months before his death, gave to a small garage proprietor who had become a friend in recent years a 99 years rent-free lease of the shooting rights over an estate of some 3,500 acres. The effect was to cut out members of the landowner’s family, and also significantly to reduce the value of the freehold. The Court of Appeal, disagreeing with the trial judge, refused to set the lease aside on grounds of undue influence. Lawton LJ said that ‘it was a foolish thing for Sir Philip to have done and an unnecessary one too’, but Sir Philip had not done it under the pressure of undue influence from the garage proprietor, and it could not be set aside merely because the court thought that Sir Philip ought not to have done it. Bridge LJ took the same view. He said that there was no warrant for the adoption by the trial judge of ‘an objective test of motivation by putting a hypothetical ordinary man in the place of the testator and asking how he would have been expected to act.’ He quoted Lindley LJ in the famous 19th Century case of Allcard v. Skinner (1887) 36 Ch D 145 at 181, to the effect that the principle was not that it was right and expedient to save persons from the consequences of their own folly, but rather that it was right and expedient to save them from being victimised by other people.
49. The point which I have made in the previous paragraph is of some importance in the present case, because it seems fairly clear to me that what Mr Glanville did was not the most sensible thing for him to do in the circumstances. It has had the effect that, after Jean’s death, the value of the house will go to her family by her first husband, and not to Mr Glanville’s family. His family think that it was not reasonable for their father to do that, and that he would not have done it if he had properly realised what he was doing. They are probably right and I have much sympathy with the feeling of the family that they must try to have the deed set aside. But it does not by itself enable me to set the deed aside that, if Mr Glanville had thought about the position more fully, and perhaps had had fuller legal advice, he would have been likely to have done something different, with the effect that, after Jean’s death, the house or its value would have passed to his own family, not to Jean’s family. What I have just said about fuller legal advice should not be understood as an implied criticism of Mr Freeman: he knew nothing of Mr Glanville’s family circumstances, and he carried out immaculately the transaction which he was instructed to carry out.
50. The third point, related to the second one, is that relief for undue influence is an all or nothing matter. That is to say, either the deed of gift stands as it is, or it is set aside in its entirety. The judge cannot vary what the claimant (or the deceased) did and substitute something else for it. In this case I have no power to vary what Mr Glanville did so as to provide Jean with somewhere to live on conditions which she can meet (accepting that it is at least possible that her evidence that she could not meet the conditions in Mr Glanville’s will is correct), while ensuring that the value of the house passes to Mr Glanville’s family after Jean’s death. If I had power to do that I believe that it could be achieved, but the law of undue influence does not give me any power to do it. If Jean is right that she cannot comply with the conditions in the will, the law of undue influence leaves me with the choice between depriving her of a home, or leaving the present situation whereby Mr Glanville’s family are effectively disinherited so far as the major item in his estate is concerned. There is no middle way.
51. The fourth point is that it is not enough for a transaction to be set aside for it to have been procured merely by influence on the part of the other party to it. The influence must have been undue. Husbands and wives - indeed, couples of all kinds - influence each other constantly in their transactions and relationships, but it is not the law that, merely because one of them was influenced by the other to enter into a legal transaction which he or she (or, as is common, his or her executors after his or her death) subsequently wants to get out of, the transaction can be set aside. There must be something about the nature of the influence and the methods used to ensure that the other party acts in accordance with the influence which renders it appropriate that equity should intervene and set the transaction aside. In this connection I quote a short passage from the judgment of Bridge LJ in re Brocklehurst, [1978] Ch 14 at 40, which itself incorporates a quotation from an earlier case:
Undue influence as such has never been judicially defined, but wherein it consists in those cases where it is proved by express evidence is well understood. What must be shown is
some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor: per Lindley LJ in Allcard v. Skinner, 36 Ch D 145 at 18l.
52. I should point out that in that passage Bridge LJ is dealing specifically with cases where undue influence is proved by express evidence. In a case of the sort identified by Lord Nicholls in paragraph 16 of his judgment in Etridge where undue influence is inferred to have taken place, so that the evidential onus has shifted to the defendant to disprove it, it is not necessary for the complainant specifically to prove the types of unacceptable conduct described by Lindley LJ in Allcard v. Skinner. Nevertheless, the case must give rise to an inference, not just that the complainant was influenced by the other party, but that the influence was undue within the general sense of the types of conduct which Lindley LJ instanced. This point seems to me to be important in this case, as I shall explain in detail below.
53. The time has now come when I can turn specifically to the facts of this case and apply to them the legal principles to which I have referred. I should first say that this is not a case in which I could set aside the deed of gift on grounds of express undue influence. That is to say, I do not consider (and Mr Blayney has not really suggested) that there is specific evidence of Jean having used undue influence to procure Mr Glanville to enter into the deed. The only specific evidence which approaches the point is Michael Glanville’s evidence that, when he took his father to the pub early in August, his father said that Jean was ‘on at him’, wanting him ‘to make things joint’. Her own evidence, as I have noted earlier, was merely that she spoke to her husband about it and said that it was up to him. I suspect that she may have said rather more than that, and I am willing to assume that she told him that she wanted him to do something about the house. In my view that would have been influence, but without more it would not have been undue influence. It is worth remembering that Jean knew that her husband was terminally ill (a fact which I believe that he knew also), and that, as she understood the position, when he died she would have nowhere to live. She (as I find) did not know that he had made a will, in which there was a provision for her to live in the house for life (although on conditions which she says, now that she knows about it, she would not have been able to meet). I do also find myself wondering how much he remembered about his will: it had been made six years earlier and was kept at the company’s premises, to which Mr Glanville had not gone for quite some time. But given that in my view Jean did not even know that the will existed, I do not think that there would have been anything objectionable in her pointing out to her husband that she would be at risk of being homeless if he did not do something about the house. If she went further and asked him to transfer it into joint names I do not think that that would be objectionable either. It would only become objectionable if she backed up her request by unacceptable conduct, of which an obvious species here would have been a threat, explicit or veiled, that, if he did not transfer the house into joint names, she would refuse to look after him so that he would have to go into a nursing home. There is no evidence that she did that, so the case turns into one of whether, without such evidence, I should infer that she did it or something similar to it, so that the evidential burden would shift to her of satisfying me that on the balance of probabilities she did not.
54. Mr Blayney submits that I should infer that Jean exerted, not just influence, but also undue influence over her husband to procure him to transfer the house into joint names. He stresses that Mr Glanville was vulnerable to undue influence, given his poor and deteriorating state of health and his dependence on Jean for being able to continue to live at home. I accept that factually Mr Glanville was vulnerable in that way. I also accept that at all times when he was not in hospital he wanted to be at home or to be visiting one or more of his children. He did not want to go into a permanent nursing home or some similar institution. Members of the family (particularly Michael and Maureen Glanville) were happy to have him visit them for short stays, but it was not suggested to me that they would have been able to have him staying in their homes permanently. He was, therefore, dependent on Jean to spend the last months of his life where he wanted to spend them.
55. Mr Blayney submitted that an evidential presumption of undue influence, shifting the burden of argument on to the defendant, here Jean, to produce evidence to rebut it, would generally be raised if the claimant showed two things, namely:
(i) the ability on the part of the defendant (here Jean) to produce an intention in the donor (Mr Glanville) by the exercise of improper means, and
(ii) a transaction which calls for explanation.
As regards (i) this case (unlike many cases in which a claim of undue influence has succeeded) is not one where Jean had previously established a relationship of dominance over Mr Glanville as respects his property and financial affairs. They had recently arranged for her to operate his modest building society account, but that was for the practical reason that he was housebound. Nevertheless, for the reasons in the previous paragraph I am prepared to accept that in a different way (i) is satisfied in this case. That is not to find that Jean exercised undue influence upon Mr Glanville: it is merely to say that she could have attempted to do that if she had wanted to, and if she did he would have been vulnerable to the influence which she attempted to exert. The crux of the matter lies in (ii), although for my part I think that Mr Blayney’s formulation (a transaction which calls for explanation) is a little anodyne. I believe that he has in mind the situation described by Lord Nicholls in Etridge, paragraph 16: ‘These cases are the equitable counterpart of common law cases where the principle of res ipsa loquitur is invoked There is a rebuttable evidential presumption of undue influence.’ There can be cases where, although there is no direct evidence of undue influence having been exerted, the facts speak for themselves (res ipsa loquitur): given what the court knows about the case it infers that the gift which is being challenged must have been procured by undue influence, because otherwise the court does not believe that the gift would ever have been made.
56. I am sure that the family sincerely believe that this case is of that type: they cannot conceive that Mr Glanville would ever have transferred the house into the joint names of himself and Jean if he had not been improperly pressurised by Jean into doing that, with her taking unconscionable advantage of his vulnerable condition. It might have happened that way, but in my judgment the facts do not speak for themselves: they do not cause me to think that the obvious and probable explanation of the deed of gift was improper pressure applied by Jean. There are other possible explanations. I do not say that other explanations are more likely than the explanation that the deed was procured by undue influence, but I do say that they seem to me to be at least equally consistent with what Mr Glanville did.
57. For all that the relationship between Jean and Mr Glanville had been rather distant for several years and that there had once been a time when divorce or separation were seriously considered, Jean had been his wife for 14 years and they had shared the house for all of that time. After he became ill in 1997 she was looking after the house and, as far as she could, was caring for him. The family are inclined to disparage her efforts in that respect, suggesting that she was reluctant to do anything to help him and, for example, would not touch him. I do not accept that the family are right about those things, and I have already quoted the letters to Jean from Dr Taylor and Jenny, the Macmillan nurse, who paid generous tribute to her care for him. I have mentioned Jean’s evidence, which in this respect I believe had the ring of truth, about him saying to her on one occasion when they were returning home from the hospital: ‘We can make it, can’t we?’ So it is entirely possible that, in the circumstances which existed in August 1997, Mr Glanville was disposed to do something about the house for the protection of Jean, and did not need to be subjected to improper pressure before he would do it.
58. It is also relevant to consider the matter from two other points of view. The first is the impact of the deed of gift on Mr Glanville personally. In terms of his own domestic comfort the deed of gift made no difference. It was not a gift of the entire ownership of the house to Jean, but only of a half interest. It followed that Mr Glanville, as the owner of the other half interest, could and did continue to live in the house. He did not need Jean’s permission to do that, and in reality there was no prospect of Jean, having become a joint owner, attempting to have the house sold in her husband’s lifetime.
59. The other point of view from which the matter ought to be considered is Mr Glanville’s relationship with his own family. They rightly say that they are the persons who are in practice disadvantaged by the deed of gift, because after Jean’s death the house or its value will be likely to pass to her family and away from the Glanville family. Ian Glanville, Mr Glanville’s grandson says in his witness statement: ‘I believe that there is no way that my grandfather would willingly disinherit my family as I know he loved staying with me and my parents and was very fond of us all.’ Jean’s witness statement suggested that Mr Glanville had a bad relationship with some of the members of his family, and that he was frightened of his sons. I do not accept what Jean says in that respect, but it did emerge from the evidence that there had been one or two issues which might have rankled as between him and the family. At some time, which I think was before his terminal illness developed but only just before (so that Mr Glanville would have been likely to have remembered it), there was a dispute about a car. I do not feel that I ever succeeded in understanding what precisely the dispute was, and in so far as I could get an impression it seemed that it ought to have been utterly trivial. However, one of the sons said that there had been a disagreement between them and their father about it. Just possibly it might for a time have reduced such concern as Mr Glanville would normally have had to ensure that the value of his estate would ultimately pass to his own family. Another matter was that the company (controlled and managed by Alan and Michael) used to pay an income to Mr Glanville, but when he became ill it stopped doing so. He might have had some feelings of resentment about that. If he did I think that any resentment was misconceived, since Alan and Michael told him (according to their evidence to me, which I entirely accept) that if he needed anything he only had to ask. They were not cutting off financial support for their father, but only taking the sensible step of stopping payments to him coming out of the company in the changed circumstances where there was no basis on which payments from that source could be justified. All the same, Jean felt that her husband was upset about what the sons had done, and, although I do not think that he ought to have been upset, this matter may also have made him less concerned than he normally would have been to ensure that his family would inherit his estate.
60. For the reasons which I have described in the foregoing paragraphs I do not think that this is a case in which the facts speak for themselves, in the sense that I can say that it must be the case that Jean put improper pressure on her husband to execute the deed of gift, because, if she had not done that, I cannot imagine that he would ever have done it. Improper pressure from Jean is one possible explanation for the deed, but it is not the only explanation or, in my view, clearly the most probable explanation. Therefore I do not consider that this is a case in which an evidential presumption that the deed was procured by undue influence arises, so as to shift on to Jean the onus of disproving it. In my view, therefore, the case remains within what Lord Nicholls referred to as ‘the general rule’: ‘... he who asserts a wrong had been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged.’ (Etridge, paragraph 11) I do not make a positive finding that Jean did not procure the deed by undue influence. I do, however, say that there is no presumption that she did, and that the executors have not established that she did. Those are the essential reasons why, in my judgment, this claim fails.
61. There are two other matters to which I wish to refer before concluding this judgment. The first concerns the participation of Mr Freeman, the solicitor, in the process of the preparation and execution of the deed. The second is the decision in a case to which I have not yet referred, Simpson v. Simpson [1992] 1 FLR 601.
62. How much significance do I attach to the participation of Mr Freeman? The answer is: some, but not a lot. The fact that a solicitor was instructed to act on a transfer does not automatically mean that it is not at risk of being set aside on grounds of undue influence: Inche Noriah v. Shaik Allie Bin Omar [1929] AC 127. In this case Mr Freeman was not instructed for the purpose of looking out for undue influence, and, if he detected any signs of it, counteracting it. He was not comparable to solicitors who, after the decision of the House of Lords in Barclays Bank v. O’Brien [1994] 1 AC 180 (and possibly before it also), are commonly instructed to advise wives who are asked to concur in their husbands’ business borrowings being charged on the matrimonial home. It was not his role to say to Mr Glanville that the proposed deed of gift would prevent Mr Glanville (if he died before his wife, as seemed a near certainty) from leaving the house to his own family, and to ask Mr Glanville if he was really sure that he wanted to do that. It is true that, from the conversation which Mr Freeman did have with Mr Glanville, he was satisfied that Mr Glanville did want to enter into the deed of gift, but Mr Blayney is right when he says that, in a case where undue influence is alleged, the question is not whether a donor wanted to make a gift, but why he wanted to make it. For those reasons Mr Freeman’s involvement would not by itself be sufficient to refute the allegation of undue influence, and that is why I said at the beginning of this paragraph that I do not attach a lot of significance to it.
63. All the same, Mr Freeman’s involvement is not irrelevant. I make two points. The first is that, although it was not his function to look for signs of undue influence, it can in my view be reasonably concluded that he did not see any. The second is that it was Jean who made the arrangements for Mr Freeman to be instructed, having had it explained by him that he would require to have some time alone with her husband before the deed could be executed. She had had no previous contact with Mr Freeman at all. If she had been exercising improper pressure on her husband to get him to agree to execute the deed would she have been likely to allow Mr Freeman to discuss matters with her husband alone? The answer is: no. This is in no sense conclusive, but I do regard it as a pointer away from an inference that Jean must have made threats or exerted other forms of undue influence to procure her husband’s concurrence.
64. The case to which I wish to refer is Simpson v. Simpson [1992] 1 FLR 601, a decision of Morritt J. The facts have similarities to the facts of the present case. Each counsel said that the decision supported his client’s case - Mr Blayney because the judge inferred that undue influence had been exercised in the case so I should not be reluctant to do the same, and Mr John because he says that the particular features which led to the inference of undue influence are not present in this case. I think that the case is more supportive of Mr Blayney, but I do not think that it governs this case and leads ultimately to a decision in favour of the executors. In Simpson v. Simpson the donor was terminally ill and he transferred a substantial part of his assets into the joint names of himself and his third wife, whom he had married three years before. After his death his children by his first wife challenged the transfer on several grounds, one of which was mental incapacity and another of which was undue influence.
65. Morritt J held that the transfer failed on grounds of mental incapacity, so what he said on undue influence may strictly have been obiter. However, he also dealt with the undue influence arguments and held that he would have set the transfers aside on undue influence grounds as well. I am not going to embark on a minute examination of the similarities and differences between the detailed facts of that case and the case before me. The circumstances pointing towards an inference of undue influence do seem to me to have been stronger in that case. For example Professor Simpson’s health had declined more than Mr Glanville’s had; the assets put into joint names included a substantial sum of money which Dr Simpson (the third wife) could, simply by her own signature, have rapidly taken out of the bank or building society; Professor Simpson’s solicitor was never told about the proposed transfers into joint names.
66. However, there is a more fundamental point. It is that, in my judgment, Simpson v. Simpson does not lay down any principle of law which differs from the principles which I have sought to apply in this case. I have considered and evaluated the facts of this case and come to the conclusion that they are not sufficient to raise an evidential presumption that Jean must have exerted undue influence over Mr Glanville. Morritt J considered and evaluated the facts of the case before him and came to the conclusion that they were sufficient to raise an evidential presumption that Dr Simpson (the third wife) must have exerted undue influence over Professor Simpson. I do not detect any difference between Morritt J and myself on matters of law. I do not know whether the Vice-Chancellor (as Morritt J has now become) would have come to the same conclusion as I have about how the law applies to the facts of the present case. Perhaps he would, perhaps not. But the possibility that he might not have done does not cause me to reconsider my own decision in this case. I found his judgment instructive and helpful, but the fact that he concluded in one case of a gift by a terminally ill man to a subsequent wife that the facts did support an inference of undue influence does not mean that in this case, another case of a gift by a terminally ill man to a subsequent wife, I am in conflict with his decision when I do not come to the same conclusion.
67. I draw the threads together. I can entirely understand why the executors thought it appropriate to bring this case. They think that, if Mr Glanville had been his old self in August 1997, he would not have done what he did. I am inclined to agree with them, but that is not enough for them to succeed in their claim for the deed to be set aside on grounds of undue influence. I am reminded of a passage in the judgment of Buxton LJ in Irvani v. Irvani [2000] 1 L1 L R 412 at 424:
... there may be a tendency to think that a case that has some elements of undue influence, but is not in law a case of undue influence; and which has some elements of unconscionable bargain, but which is not in law a case of unconscionable bargain; can by the combination of these different and inadequate claims be turned into a case that attracts relief on a vaguer basis of general equity.
The present case may have some elements of loss of mental capacity but it is not a case of want of mental capacity. The case may also have some elements of undue influence, but in my judgment it is not a case of undue influence. I cannot set the deed aside on what Buxton LJ describes as ‘a vaguer basis of general equity’. I cannot substitute for the deed something else which I think would have been more appropriate and which Mr Glanville would probably have preferred if he had thought of it or been told about it. The case seems to me to fall in an area where, although I understand the family’s distress about what Mr Glanville did, there is no legal or equitable basis on which I can nullify or vary the effect of it.
68. For all of the reasons which I have tried to explain in this judgment I dismiss the executors’ claim.