Before: His Honour Judge Weeks
 
 

B E T W E E N

JUDGMENT
 
DATED: 12 November, 1997

Judge Weeks:

This is a claim by a disappointed beneficiary against the estate of an elderly testatrix who changed her mind.

The plaintiff, Mr Taylor, is a married man in his late fifties. Since 1965 he has lived with his wife and two children in Camberley and has been in full- time employment as a lorry driver. He used to do some part-time gardening to supplement his income, and in 1974 he went to work for Mr and Mrs Parker, a retired couple who lived some 4 to 5 miles away at Crowthorne. Their home, Heatherdene, was a large bungalow with a half-acre garden in which Mrs Parker took particular pride. Mr Taylor worked about 4 to 5 hours a week for which he was paid at the rate of £2.50 an hour.

Mr Parker died in 1984. Mrs Parker continued to live at Heatherdene, increasingly disabled from osteoporosis. She was 86 when she died on 18 November 1995. Her last will, professionally drawn and dated 20 January 1995, was proved by the defendants, Mr and Mrs Dickens in the Oxford District Probate Registry on 4 April 1996. Mr and Mrs Dickens are both solicitors, partners in Dickens & Co at Crowthorne, and they have no beneficial interest in the estate which, after various legacies including a legacy of £1,000 to Mr Taylor, passes to a Mr and Mrs Bosher in equal shares.

The estate was sworn for probate at about £251,000 net, and a large part of this consists of Heatherdene which may have particular development value.

To return to the beginning of the story, Mrs Parker was an adopted child born in 1909. She married late in life in 1956 a public schoolmaster. There are no children of the marriage, and there is some evidence that the marriage was unhappy.

In the 1960s Mr Parker retired and they came to live at Heatherdene. A colleague of Mr Parker's, a Mr Sthyr, who has given evidence, used to come and visit them six or seven times a year. Another friend, Mrs Sherwood, who has known the Parkers since 1961, has also given evidence.

Mrs Parker was very active in the 1960s and 1970s and did a lot of work in the garden. Mr Taylor, as I said, came to work part-time in the garden in 1974. In 1977 Mrs Whitham, who has also given evidence, moved into an adjoining house in Heatherdene Avenue.

In 1984 Mr Parker died and his widow continued living at Heatherdene. Mrs Parker's thoughts now turned to what should happen to her property, and particularly Heatherdene, after her death. According to Mr Sthyr, who seemed to me an entirely truthful witness:

'At some time, which was about 1988 and following the death of her husband, Mrs Parker told my wife and me that she was intending to leave Heatherdene to a friend. This turned out to be Egon Hanfstaengl. Egon had been a pupil at St Paul's School when Mr Parker and I were teaching there. I came to know him quite well. He and his father escaped from Germany just before the war. In 1939 father and son were interned in the UK. They ultimately went to the USA. Egon served in the US army. After the war he returned to the family home in Munich. During the remainder of Mr Parker's lifetime Egon paid periodic visits to Crowthorne for the purpose of visiting Mr and Mrs Parker, and he stayed with them. At some time, of which I have no record, but it was before the summer of 1991, Mrs Parker told my wife and me that she was giving the house to Egon for his life provided he lived there for at least 5 years and that on Egon's death what Mrs Parker had would go to Bob Taylor.'

Mrs Sherwood and Mrs Whitham were given much the same picture. Mrs Sherwood said:

'Some time before 1991, it may have been 1988, but I have no record, she [that is Mrs Parker] had told me that she was intending to leave Heatherdene to Egon Hanfstaengl, a German who had been a close friend of the Parkers before the war, and she required him to live there during his lifetime, and afterwards she was giving what she had to Bob Taylor.'

Mrs Whitham said:

'When we met after her husband's death Mrs Parker talked freely about her arrangements. I knew from what she told us, and me when I visited her alone, that she and her husband had taken an interest in Egon Hanfstaengl who had been a schoolboy at St Paul's before the war. His father, I believe, had been a diplomat, and possibly came to live in England because of the Nazi regime. Anyway, Egon was a schoolboy at St Paul's and was obliged to stay in England during the holidays in wartime. Mr and Mrs Parker took an interest in him. He stayed with them during the holiday periods at Heatherdene. After the war Egon returned to Germany. Mrs Parker had always said that she wished Heatherdene to be retained as it was, and in particular did not want it sold for development. The property has a large garden and would have commanded a substantial figure for development, but that would have meant the demolition of the existing bungalow. Mrs Parker was very much against this and wanted the property kept as it was. After Mr Parker's death Mr Taylor spent more time looking after the garden at Heatherdene and assisting Mrs Parker in various ways. He did some maintenance to garden fences and to the house. At some time, the date of which I cannot remember, Mrs Parker told me that she was leaving Heatherdene to Egon for life provided he would live there, and after his death it would be given to Bob Taylor.'

Mr Taylor himself has said, and I accept:

'My work in the garden continued on the same basis as to payment until about the year 1988. Some time during that year, and I have no record of the precise date, Mrs Parker told me she was leaving Heatherdene to Egon Hanfstaengl for his life, provided he would live there, and on his death she was giving the property to me. I immediately told her, because of the gift I would not accept payment for what I did in the future. At this time this was mainly the gardening and maintenance and odd jobs around the house. I was surprised and very pleased at the promise. It meant that my wife and I would have some financial security later on, particularly when we ceased to work. I also told Mrs Parker, and that was at the same time, that I would do the same while Egon was living at the house without payment. She said she did not expect this. She was pleased I would do it. Subsequently, Mrs Parker told me, and I have no record of the date, that she had seen her solicitor, Mr Barrett, at Wokingham, and had signed the will.'

No copy of a will executed in 1988 has survived, but I think it likely that in 1988 Mrs Parker did execute a will leaving Heatherdene to Mr Hanfstaengl for life and then to Mr Taylor.

By 1990, however, Mrs Parker had consulted her solicitor, Mr Barrett, of Haye & Reid, about changing her will. He wrote to her on 20 June 1990:

'Dear Maisie,

As arranged when I called to see you yesterday, I have redrafted your will and enclose a copy. As I explained, because of the inheritance tax liability I cannot see that there can be any way of avoiding having to sell the property to meet the tax bill. However, after the tax has been paid there should be a considerable sum left over from the proceeds of the sale which under the terms of the will would be divided equally between Egon Hanfstaengl and Bob Taylor. This is really more satisfactory than leaving the whole amount on trust to Egon Hanfstaengl as, on his death, tax would be payable again on what capital remained. Furthermore, if Bob Taylor were to die in his lifetime there is no provision in the will for what would happen to the capital on Egon's death. I feel therefore that dividing the estate up between them is probably more beneficial to both of them. Unless I hear from you otherwise I will assume that the draft is all right, and I will telephone you next week to make arrangements to call with the will for you to sign.'

If any will was executed in 1990, again it has not survived. In 1991 Egon Hanfstaengl came to England, saw Mrs Parker, and told her that he did not want to uproot his family from Munich to come to live in Crowthorne. Mrs Parker apparently took offence. According to Mr Taylor:

'In the summer of 1991 Egon visited Mrs Parker and stayed at Heatherdene. Egon told me that he had told Mrs Parker he was settled in Munich with his wife, children and grandchildren. He would not wish to accept the gift of Heatherdene on condition he should live there during his lifetime. Mrs Parker told me the same thing. She was rather offended that Egon had refused the gift and the condition. Mrs Parker then told me that she was going to leave Heatherdene to me and there would be some money as well as she was leaving all she had to me except some small items by way of a legacy, some paintings, jewellery and some candlesticks. I was again very pleased about this. I told her so. I assured her that I should do whatever I could to help towards her comfort and to look after her and the house.'

Again I accept Mr Taylor's evidence. Mr Sthyr, Mrs Sherwood, Mrs Whitham and another friend, Mrs Costin, and no doubt others, were all aware of Mrs Parker's change of plan.

On 6 September 1991 she executed a will drawn by Haye & Reid in which she appointed the partners in that firm for executors, made various minor requests, including three paintings to Egon Hanfstaengl and £1,000 to Mrs Costin, and left her residuary estate to Mr Taylor absolutely. There was no express reference to Heatherdene except for a provision 'that my trustees shall not be under any duty to see to the maintenance and insurance of my said freehold property'. This may have been an uncritical leftover from a previous will.

Mrs Costin has said:

'When I first met Maisie [that is Mrs Parker] she told me that she had made a will leaving her home to a German gentleman by the name of Egon. Egon was an old family friend who would frequently come and stay with Maisie. However, I understood that both his and his wife's health deteriorated and Maisie began to doubt whether he would ever be able to live in Heatherdene following her death. She talked to Egon about this and they both decided it would be best if Maisie left the house and garden to somebody else. It is important to understand that Maisie's home and garden were the love of her life, the most important things to her. When Maisie told me that Egon was not going to have Heatherdene, she told me that under different circumstances she would have left it to me and Barry, my husband. She said that the reason she would not leave it to us was that we would not be able to afford to live in it and therefore keep it going as a home. I think this was around 1990, but I am not sure. Maisie later told me that she was going to leave Heatherdene to Bob. She said that he had been surprised. He told her that he would love to make it his home. After this Mr Taylor gradually started to do more work for Maisie to try and help with her personal needs as well as assist her about the house and garden.'

Certainly at about this time in 1991 Mrs Parker's health deteriorated and she began to need help in the home. She engaged an agency called Care Unlimited who sent, among others, Mrs Bosher. Mrs Bosher has no medical training and her job at first was to help Mrs Parker with general tasks about the house.

Mrs Bosher has said, and I accept:

'I first met Mrs Parker in 1991 when I was working for Care Unlimited. I went to Mrs Parker's house for one hour a week, mainly to keep Mrs Parker comfortable but also to carry out any tasks requested of me. There were other carers employed by the same company who attended Mrs Parker as well on alternate weeks, but only for one hour a week totally. At this time Mrs Parker was mobile and she employed her own domestic cleaner. The cost of the attendance on Mrs Parker was not justified and the care attendance was stopped. At this point Mrs Parker asked me if I would carry on seeing her as a friend since we had many things in common to talk about. I agreed to this since, although Mrs Parker could be a very difficult person to deal with, she was a very interesting person and I could see beyond the difficult veneer to the person below. I had become fond of her. Following this I would go in and see her for a cup of tea on Thursday afternoons, and about twice a month I would take her to The Meadows, the Tesco and Marks & Spencers superstores in Camberley for shopping. About 6 months after I started my voluntary visits to Mrs Parker, her cleaner gave up working for her and Mrs Parker asked me if would take over. From then on I went to her on Monday and Thursday for cleaning, and on Wednesday afternoon for a visit. She paid me £5 for cleaning which was well below the going rate. I did not mind as I was acting from friendship. I was happy to work for nothing but Mrs Parker was old- fashioned and preferred to pay her way. She would have been unaware that £5 was not the normal rate. In any event Mrs Parker preferred to sit and chat rather than to have the cleaning done. Company was more important to her. When I first started the cleaning work Mrs Parker was always dressed when I arrived. Rapidly Mrs Parker's condition of osteoporosis worsened and all movement became very painful. One day around early January 1994 I arrived at the house but could not get in as it was locked. Mrs Parker indicated to me through the window that she could not get out of bed. I had to break in through the sitting-room door. After this incident Mrs Parker gave me a key and from then on I would go round every morning, Monday to Friday, and open up the house and give Mrs Parker a cup of tea in bed. Mrs Parker would then try and get up, and gradually she could do less and less. The last time she left the house to go to The Meadows was in August 1994.'

On 15 August 1993 Mrs Parker made a new will, again prepared by Haye & Reid. Again the partners in that firm were appointed executors. There were various pecuniary and specific legacies, including £1,000 to Mrs Costin and the paintings to Egon, and a new legacy of £500 to Mrs Bosher, and the residue was again given to Mr Taylor absolutely. New provisions were:

'Clause 7. I express the wish that my cats shall be cared for and given a home by Robert Taylor, and if he should be unable to care for my cats then I should wish that they be cared for and live with the said Margaret Bosher if at all possible.

Clause 10. I express the wish that if my said property at Heatherdene, Crowthorne, should be sold, under no circumstances must it be sold for development land, and the same must be placed on the market and a purchaser found for the property as a single private dwelling-house with garden, and I further express the wish that the said Robert Taylor should make my said house at Heatherdene his principal place of residence and that when he eventually proceeds to sell the property he would adhere to my wish that the land and garden should not be sold for development purposes.'

Mrs Parker was not happy with the services of Haye & Reid and decided to change her solicitors in 1994. She was recommended by a neighbour to go to Dickens & Co. Mr Keith Dickens, the first defendant, has given evidence. He struck me as a most conscientious and meticulous solicitor and devoted far more time and care to Mrs Parker's affairs than most busy solicitors would have. I would have found the paucity of attendance notes surprising if I had not been told that he suffered from a medical condition which makes taking notes for him difficult. I accept his evidence without reservation.

He was first consulted in April 1994 and he arranged to see Mrs Parker on 20 April 1994 when he spent 1½ hours with her, getting to know her and allowing her to talk. After her dissatisfaction with Haye & Reid, Mr Dickens said that her main area of concern was Heatherdene.

'She was not entirely satisfied that she had done the right thing in the said will. She was most concerned about her home, Heatherdene. She had lived there for many years and had been very happy there, and in particular had taken great joy in the garden and spent a lot of time and effort in it personally, the premises had become the most important thing in her life, and her wish was to preserve it as she had loved it for as long as possible. She was most concerned that it should not be developed at all, and after her death she wanted it to be passed to someone who would preserve as aforesaid in the same spirit as she had. She was concerned that her will should achieve this objective.'

Mr Dickens returned to his office, prepared a form of authority to collect the client's documents from Haye & Reid, and went back to Mrs Parker the next day. Mrs Parker signed the authority, Mr Dickens sent it off, and in May 1994 he received all Mrs Parker's documents, including the land certificate to Heatherdene and the will dated 15 October 1993.

Mr Dickens then arranged to see Mrs Parker to take her instructions, and he visited her on 23 May 1994. She was not yet confined to her bed, but she rarely left the house. She talked again about how important Heatherdene was to her and how she wanted to preserve it as she had always done. She confirmed that she wanted the partners in Dickens & Co to be her executors.

Mr Dickens therefore drew a new will, identical in all respects with the 1993 will except for a change of executors. This will was executed by Mrs Parker at her home on 1 June 1994 in the presence of Mr Dickens and two secretaries from his firm.

On 5 October 1994 Mrs Parker rang Dickens & Co and asked for Mr Dickens to come out to see her. He went out the next day, 6 October 1994, and spent 2 hours with her. He has given a full account of that meeting:

'It appeared to me that her health was materially worse than when I had seen her before. She expressed concerned that her garden sheds were full of things belonging to Mr Bob Taylor. She believed he had brought things from his own home and was storing them in her sheds. She believed that there was some machinery of his stored in her sheds. She believed that her sheds were full of his belongings and she was distressed by all this. She did not want her sheds to be full of his things and she was worried about this and did not know what to do with them and was concerned that there should not be any unpleasant confrontation about this subject. She said that she found it difficult to make Mr Taylor appreciate her requirements, and when she did try to tell him what she wanted he was sometimes non- committal and ignored her requests. I went outside and had a look at the sheds and round the garden. Mrs Parker had also expressed concern that she believed that Mr Taylor had been using part of the garden to store building materials such as paving slabs, sand, timber and suchlike. I went to the north-west corner of the garden and did indeed find a not inconsiderable amount of paving slabs, tiles, sand, gravel and timber like any builder's yard. I then walked along the northern edge of the garden in an easterly direction and came across a large white frame up against the northern boundary. I walked on to the garage in the north-eastern corner of the premises and had a look behind it, and there was some compost arrangement and some more timber stored on end. The main garage door itself was padlocked and I was only able to peer in through the garage window. The garage appeared to be very full of all sorts of different things with very little room to manoeuvre inside. I went back into the house and reported to Mrs Parker what I had seen, thereby confirming what she herself believed. Again she expressed distress at this and stated that this was not what she wanted and was concerned that her premises were being utilised in this way contrary to her wishes.

In the course of our subsequent conversation on this occasion she gave me details of some of her assets and where the relevant certificates and documentation were kept for safe keeping. She also mentioned that the three paintings by Charles Bryant, which by her will she had left to Egon Hanfstaengl, she thought should not now go to Mr Hanfstaengl and that it would be more appropriate for them to be given to an 80-year-old artist friend of hers, Erik Sthyr, who lived in Winchester. However, she did not wish to go to the lengths of changing her will just for this one purpose, and I confirmed to her that if she wished she could just give those items to Mr Sthyr in her lifetime and the relevant gift in her will would thereby lapse and become unable to be effected by her will.

Mrs Parker went on to express her concern that Mr Taylor was clearly using her premises in a manner she did not wish, and also in a manner consistent with him apparently assuming that the premises were already his and his to do whatever he liked with. She was really distressed about this and felt that he was very much jumping the gun and making assumptions about his entitlement to the premises prior to her death. She indicated that her opinion of him was thereby reduced and she felt that he might not after all be an appropriate residuary beneficiary of her estate. It had become apparent to her that he would not, as she has previously thought, preserve the premises in the fashion she had herself always done and was requiring the successor of hers so to do.

She also informed me that although Mr Taylor liked the garden and the premises and she thought he would probably be quite happy to live at the premises after her death, she was quite clear from previous involvement with Mrs Taylor that Mrs Taylor did not like the premises to that extent and had absolutely no wish to live at Heatherdene at all. In all the circumstances Mrs Parker did not think that Mr Taylor would be willing to move into Heatherdene as his residence. In these circumstances Mrs Parker was increasingly concerned that if she left Heatherdene to Mr Taylor it would not be preserved in the manner in which she required it to be preserved as aforesaid. She was wondering whether Mr Taylor was the right person to inherit Heatherdene after all.

I advised Mrs Parker that although she might find it difficult, these were matters which she really needed to talk to Mr Taylor about personally, with a view to the two of them understanding each other better about these aspects, and hopefully being able to arrive at some mutually satisfactory resolution thereafter.'

Mr Dickens came back to see Mrs Parker on 15 December 1994. This time she was confined to her bed. Mrs Parker told him that she had given the paintings to Mr Sthyr the previous weekend. Before the meeting Mrs Parker had asked Mrs Bosher to write out some notes for her, topics she wanted to raise with Mr Dickens. These notes in Mrs Bosher's hand read:

'Mr Dickens, Mrs Parker asked me to write down these points she would like to talk to you about as she is worried she may forget something. Pictures changed. Building society account. Various shares. Savings account. Mr Dickens, are you aware of these? After all dues are paid I would like the remainder of my money to go to ...'

and the notes stop there.

Mrs Parker gave the envelope containing these notes to Mr Dickens during their interview and discussed matters with him generally. The ultimate effect was that the situation and her concerns were the same as before, but she gave Mr Dickens no instructions to take any action on her behalf.

On 12 January 1995 Mrs Parker phoned again for an appointment with Mr Dickens. He spoke to her on 12 January 1995 and arranged a meeting for 18 January 1995. In the course of this phone call Mrs Parker said she was thinking about changing her will and was concerned about having left her residuary estate to her gardener, Bob Taylor.

Mr Dickens went to see Mrs Parker on 18 January 1995. Again he saw her in her bedroom:

'She again expressed the same concerns about Heatherdene and instructed me that she wished to leave her residuary estate, including Heatherdene, to Mrs Margaret Bosher and her husband in equal shares. She said: "They would both love to come here and would respect my wishes". She made the point that Mr Bosher was a keen gardener and needed more space for it and she said this by way of contrast to the situation with Mr and Mrs Taylor whereby Mrs Taylor was not that interested in Heatherdene. We discussed the possibility of a provision being included in her will to the effect of requiring Mr and Mrs Bosher to occupy Heatherdene as their residence for, say, 5 years, so that Heatherdene could be preserved in specie for at least that length of time, and thereafter a further provision that although Heatherdene could then be sold by Mr and Mrs Bosher, they should only sell it to someone who was not going to develop the site and thereby change it from how Mrs Parker had always known and loved it. I advised Mrs Parker of the difficulties surrounding such provisions and the continuing financial and other responsibility for the estate for such a trust. She decided that that would be complicating matters too much and was not an option which she wished to pursue. She also said that as she had given her three paintings to Erik Sthyr that aspect could be deleted from her proposed new will. Similarly, consequentially, she decided that Mr Bob Taylor should be given a legacy of £1,000 in all the circumstances and it would not be appropriate for him to be responsible for her surviving cat, but her surviving cat should be looked after and cared for by Mr and Mrs Bosher and that in fact the cat continue to live at Heatherdene with them.

She asked me whether she should tell Mr Bob Taylor that she had changed her will, and since my impression had always only been that he was simply her paid gardener/handyman, I told her that she did not have to if she did not want to.'

Mr Dickens therefore prepared a new will for Mrs Parker which she duly executed on 20 January 1995. This will, which has been admitted to probate, appoints the partners in Dickens & Co as executors, gives pecuniary legacies, including £1,000 each to Mrs Costin and Mr Taylor, and two specific legacies.

Clause 4 provides:

'I express the wish that my cat shall be cared for and given a home by Margaret Bosher and her husband Mr Bosher, Little Sandhurst, Kent.'

Clause 5 gives the residue to Mrs Bosher and her husband in equal shares.

Clause 7 provides:

'I express the wish that if my said property at Heatherdene should be sold under no circumstances must it be sold for development land. The same must be placed on the market and the person applying for the property as a single private dwelling-house with garden. I further express the wish that the said Margaret Bosher and her husband Mr Bosher should make my said house at Heatherdene their principal place of residence for at least 5 years after the date of my death and that when they or the survivor of them eventually proceeds to sell the property they will adhere to my wish that the land and garden should not be sold for development purposes.

The rest of the will is not material. Mr Dickens visited Mrs Parker once more before her death, on 22 June 1995. They had a general discussion and she did not wish to change her will.

Mr Sthyr was informed of the change in the will. He said:

'At the beginning of 1995, on one of our usual visits, Mrs Parker told me that she had come to a decision about Heatherdene. It was not to be sold after all, but she was leaving it to Mrs Margaret Bosher. I was amazed and asked her: "What are you going to do about Bob? He will obviously have to be told, won't he?" To this she replied: "No. I am going to take the coward's way out". This remark was to stick in my mind since it was so unusual coming as it did from a person of her avowed principles. When next we met I once again asked her, as diplomatically as possible, what she intended to do about Bob. She repeated the words exactly. She seemed in a certain agony of mind, and I recall her using the word "mess" at one point about what had taken place, but 1 do not remember the exact context.'

Mrs Sherwood was also told:

'Some time later, and I have no record of the date, Mrs Parker told me she had altered the will. I was quite shocked that she had actually done it. This must have been after 20 January 1995 because I now know that was the date of the will. I asked her whether she had told Bob. She said: "No, I am being a coward". She particularly asked me not to say anything about the will, especially to Bob. I was obliged to observe her wishes and I said nothing to Bob.'

Mrs Whitham was not told, although she did see Mrs Parker on a number of occasions in 1995. Mrs Costin did know. She had said:

'About 2 years ago Maisie started to become more and more concerned about whether she had made the right decision in leaving Heatherdene to Mr Taylor. Every week when I visited her she would discuss with me her doubts. She could not understand Mrs Taylor's lack of enthusiasm for the property and her lack of care and attention towards herself. I must admit that as Maisie became more unwell and bedridden, I wondered why Mrs Taylor did nothing to improve Maisie's quality of life. Then some time around 1994 I think Maisie told me that she was changing solicitors. She had met Mr Dickens and she told me that she got on well with him and she had discussed with him the idea of changing her will. I understand that soon after the will was changed, and I discussed with Maisie whether or not she should tell Mr Taylor that he was no longer a beneficiary. Maisie said that her solicitor, Mr Dickens, had told her she did not need to tell Mr Taylor if she did not want to. Over the next few weeks she discussed with me whether she should tell Mr Taylor, and several times I told her that I thought she should because it was a fair thing to do. I also told her that in telling him she may discover whether all the matters she was worried about were true and whether he really was a friend and not just helping her in order to obtain Heatherdene. Maisie told me that she could not tell Mr Taylor because (a) she thought he would stop coming to help her; and (b) she lived on her own and she was frightened that he would be angry. She was frightened of a confrontation. On several occasions Maisie had voiced to me her worry that Mr Taylor only helped her because he was going to inherit Heatherdene. She hoped that his main motive was kindness and friendship. It has to be understood that Maisie's home and garden were the greatest love of her life along with her cats. It was the most important thing in the world to her that after her death someone would live in her home and cherish it in the way she did. She could not bear the thought of the land and her beloved garden being split up for development purposes. Because she felt that Mrs Taylor would never live in the home, she believed it would be inevitable if Mr Taylor inherited the property that it would eventually be sold for development.

A few weeks after Maisie changed her will she asked me if I had worked out who Heatherdene was to be left to. She told me it would not be me because, as we had discussed in previous years, I would not be able to afford to live there. I guessed correctly that she had left the property to Margaret Bosher. I had thought it would be Margaret Bosher because, along with Mr Taylor, she was the closest person to Maisie and I knew that Mrs Bosher had agreed to look after Maisie's cats.'

Mrs Bosher did not know she was the main beneficiary under the will. Nor did Mr Taylor know that the will had been changed. He said in cross- examination that Mrs Parker continued to assure him up until her death that he would inherit Heatherdene. He gave no specific instance. I do not accept that evidence which is incompatible with everything I have been told about Mrs Parker's character. She would, I think, have refrained from a confrontation with Mr Taylor because she was a lonely vulnerable old lady, but I do not accept that she would deliberately have told him what she knew to be untrue. The coward's way out was not to say anything, nor was there any particular occasion to.

There was an incident in the house on 10 August 1995 when an intruder gained access and disturbed the papers in a room in the house. One of the carers sent by the National Health Service, Mrs Colmer, has said that Mrs Parker thought Mr Taylor had unlawfully entered during the night, but I am satisfied that he did no such thing and nothing turns on that incident.

Mrs Bosher and Mr Taylor, with the assistance of the carers, continued looking after Mrs Parker until her death at home on 18 November 1995. Mrs Bosher in her evidence has criticised the part played by Mr Taylor, and particularly Mrs Taylor, but I find that although Mr Taylor neglected the garden after 1992, he did increasing work for Mrs Parker by way of shopping, providing her with cups of tea and sometimes meals, and, perhaps most importantly, company and conversation.

Mrs Bosher agreed with Mrs Parker's GP, who wrote after her death:

'There was no doubt that Mr Taylor performed many more tasks for her than would normally be expected from a gardener, and he continued to work faithfully for her until she died. There is no doubt that he and Mrs Bosher were extremely important members of Mrs Parker's team of carers. Without either of them it would have been impossible to nurse Mrs Parker at home through her final illness and allow her to die in her own home which was her specific wish.'

There was also some attempt to prove that Mr Taylor was paid for his services. He was, of course, reimbursed for the shopping he did. I find that from 1988 he did receive occasional sums for his petrol and other expenses, but he was not properly or regularly paid for the services he rendered. He did, of course, have a full-time job throughout, but he still managed to visit Heatherdene on a daily basis except for his annual holidays.

After Mrs Parker's death, Mr Taylor made arrangements for the funeral and found the 1995 will, or a copy, in a drawer in Mrs Parker's bedroom. He took it home and he read it. He was shocked to find that the estate had been left to Mr and Mrs Bosher. He went to see Mr Dickens who told him that, in his opinion, the will was effective. On Mrs Whitham's advice he went to see her solicitor and instructed him to make a claim against the estate. I have not seen any letter before action, but the writ was issued on 29 August 1996, 4½ months after probate. The estate, of course, has not been distributed.

On 6 March 1997 Master Bowman, on a Beddoe application, gave the executors leave to defend at the estate's expense. The matter came on for trial before me on 3 November 1997. The writ claims a declaration:

'... that the plaintiff is entitled to the net residuary estate of Mrs Parker, an order that the defendants transfer the residue after payment of the deceased's debts and taxes together with a transfer to the plaintiff of the property known as Heatherdene in fee simple.

(2) Alternatively, damages in accordance with the statement of claim delivered herewith.'

Counsel for Mr Taylor has put his case in two ways. One way is in contract. This is his less-preferred way, possibly because the rambling and diffuse statement of claim does not use the words 'contract' or 'agreement'. It does, however, claim damages, and 1 do not see any basis on which damages could be claimed except for breach of contract.

In my judgment the claim in contract fails, for four reasons.

First, there was no agreement. In 1988 Mrs Parker stated what she intended to do, and then Mr Taylor stated what he intended to do in that event. The same thing happened in 1991. There was no offer, no acceptance, no exchange or promises, and no mutually binding obligations.

Secondly, if there was an agreement on Mrs Parker's part, it was an agreement to make a will, not an agreement never to revoke it. Mr Taylor accepted in evidence that Mrs Parker never told him she would never change her will. The distinction is not mere logic chopping, and its importance is shown by a recent decision on mutual wills. Re Goodchild (Deceased) and Another [1997] 2 FLR 644. Leggatt LJ accepted that a finding of agreement was essential to the doctrine of mutual wills, and he then said at 652C-D:

'A key feature of the concept of mutual wills is the irrevocability of the mutual intentions. Not only must they be binding when made, but the testators must have undertaken, and so must be bound, not to change their intentions after the death of the first testator. The test must always be, "Suppose that during the lifetime of the surviving testator the intended beneficiary did something which the survivor regarded as unpardonable, would he or she be free not to leave the combined estate to him?" The answer must be that the survivor is so entitled unless the testators agreed otherwise when they executed their wills. Hence the need for a clear agreement.'

If there was a contract in the present case, Mrs Parker performed her part by making the wills in 1988 and 1991.

Thirdly, there was, in my judgment, no intention to create legal relations. Mr Taylor said in evidence that he never thought of the situation as a contract.

In one of the rare reported cases of a contract to make a will, Parker v. Clark [1960] l WLR 286, Devlin J, sitting at Bristol Assizes, said at 292:

'The defendants' first submission in answer to the claim is that the letters, construed in the light of the surrounding circumstances, show no intention to enter into a legal relationship or to make a binding contract. No doubt a proposal between relatives to share a house, and a promise to make a bequest of it, may very well amount to no more than a family arrangement of the type considered in Balfour v. Balfour, which the courts will not enforce. But there is equally no doubt that arrangements of this sort, and in particular a proposal to leave property in a will, can be the subject of a binding contract.'

I find that there was no binding contract in this case.

Fourthly, there is the problem of s 40 of the Law of Property Act 1925 and its successor, s 2 of the Law of Property (Miscellaneous Provisions) Act 1989. The former applies to contracts made before 27 September 1989; the latter applies to contracts made on or after that date. It is common ground that the latter is the relevant Act for present purposes because the relevant contract, if there were one, is the 1991 contract. Section 2 provides:

'(1) The contract for sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document, or where contracts are exchanged in each.'

It seems to me plain that if there was a contract, it was a contract for the disposition of interest in land. The fact that property other than Heatherdene would be included in the residuary estate does not, in my judgment, take the contract out of the statute, and insofar as the editor of Theobald, Law of Wills (Sweet & Maxwell, 15th edn, 1993) suggests otherwise, in the last complete sentence on p 99, he is, in my judgment, wrong.

On all those grounds the claim in contract fails.

Mr Evan's other submission was based on proprietary estoppel. He put the case in two ways. First he submitted that there is a wide equitable jurisdiction to interfere in cases where the assertion of strict legal rights is found by the court to be unconscionable. In my judgment, there is no such general jurisdiction, at least in the field of promises as to future conduct. There are dicta from distinguished judges which might lead to a different conclusion, but I find that they have been taken out of context. The submission itself is, I think, based on words by Goff J in Amalgamated Investment & Property Co v. Texas Bank [1982] QB 84, 104. That, however, was a case of estoppel by convention where the parties had conducted their affairs on a mistaken understanding of events in the past. Goff J himself had expanded what Oliver J said in 1979 in Taylor Fashions v. Liverpool Victoria Friendly Trustees reported in a note at [1982] QB 133, 151H-152A:

'Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson LR 1 HL 129 principle — whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial — requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.'

Again this was said in a conventional estoppel case, although Oliver J did refer to the Ramsden v. Dyson principle.

The cases of promissory estoppel do not help because they are narrowly confined to situations where there is a pre-existing legal relationship between the parties which one side says he will not enforce.

The only proprietary estoppel case cited in support of the wide jurisdiction was Crabb v. Arun District Council [1976] Ch 179. At 193A Scarman LJ said that in these cases the court has to answer three questions:

'First, is there an equity established? Secondly, what is the extent of the equity, if one is established? And, thirdly, what is the relief appropriate to satisfy the equity?'

At first sight this might be support for the theory of a wide jurisdiction, but Scarman LJ went on to say at 195D:

'The court therefore cannot find an equity established unless it is prepared to go as far as to say that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim being made by the plaintiff. In order to reach a conclusion upon that matter the court does have to consider the history of the negotiations under the five headings to which Fry J referred. I need not at this stage weary anyone with an elaborate statement of the facts. I have no doubt upon the facts of this case that the first four elements referred to by Fry J exist. The question before the judge and now in this court is whether the fifth element is present: ...'

Scarman LJ was thus relying on the five traditional elements of proprietary estoppel laid out in Willmott v. Barber (1880) 15 ChD 96, and not asserting any general jurisdiction to interfere in all cases of unconscionable conduct.

In my judgment there is no equitable jurisdiction to hold a person to a promise simply because the court thinks it unfair, unconscionable or morally objectionable for him to go back on it. If there were such a jurisdiction, one might as well forget the law of contract and issue every civil judge with a portable palm tree. The days of justice varying with the size of the Lord Chancellor's foot would have returned.

As an alternative, Mr Evans relies upon the formulation of proprietary estoppel given by Mr Nugee QC in Re Basham (Deceased) [1987] 2 FLR 264. This case has been the subject of some academic criticism, but it is authority for the proposition that proprietary estoppel can extend to cases where there is a belief that future rights would be granted and that a proprietary estoppel can be raised in relation to a promise of a legacy of residue.

In giving judgment Mr Nugee said at 269D:

'I turn then to the law. The plaintiff relies on proprietary estoppel, the principle of which, in its broadest form, may be stated as follows: where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief. The principle is commonly known as proprietary estoppel ...'

In another case concerning wills in the Court of Appeal, Wayling v. Jones [1995] 2 FLR 1029, Balcombe LJ said at 1031:

'The judge took the principles of proprietary estoppel from the judgement of Mr Edward Nugee QC sitting as a High Court Judge in Re Basham ...'

There follows the quotation that I have just read, and Balcombe LJ continues:

'And before us this was accepted by both parties as a sufficiently accurate statement of the general principle.'

The Court of Appeal therefore did not have to examine Mr Nugee's general statement of the law.

In my judgment, in two material respects it is stated too widely. First, it omits the requirement of unconscionability which nearly all the judgments in this field insist on. The principle is stated slightly differently in Snell, Principles of Equity (Sweet & Maxwell, 29th edn, 1991) at p 573:

'... the equity is based on estoppel in that one (A) is encouraged to act to his detriment by the representations or encouragement of another (O) so that it would be unconscionable for O to insist on his strict legal rights.'

Secondly, it is not sufficient for A to believe that he is going to be given a right over B's property if he knows that B has reserved the right to change his mind. In that case, A must also show that B created or encouraged a belief on A's part that B would not exercise that right.

This requirement is shown by Attorney-General of Hong Kong v. Humphreys Estates [1987] AC 114 where the Government of Hong Kong had an agreement in principle with HKL and spent vast sums of money with the knowledge and approval of HKL and in the confident, and not unreasonable, expectation that the agreement would come into effect.

However, Lord Templeman, delivering the advice of the Privy Council, said at 124:

'Their Lordships accept that the government acted to their detriment and to the knowledge of HKL in the hope that HKL would not withdraw from the agreement in principle. But in order to found an estoppel the government must go further. First, the government must show that HKL created or encouraged the belief or expectation on the part of the government that HKL would not withdraw from the agreement in principle. Secondly, the government must show that the government relied on that belief or expectation. Their Lordships agree with the courts of Hong Kong that the government fail on both counts.'

In the present case Mr Taylor knew that wills were revocable and that Mrs Parker could change her mind. His wife gave evidence that on no less than three occasions she told him not to count his chickens before they were hatched. He was confident that Mrs Parker would not revoke her will, but he agrees that she never said she would not do so. He expected her not to and trusted that she would not do so.

I have, however, no credible evidence that Mrs Parker created or encouraged that belief, or that Mr Taylor relied on that belief. What he relied on was her statements in 1988 and 1991 that she was going to make a will in his favour, and her subsequent true statements that she had done so. As appears from Re Goodchild, there is a difference between saying you will make a will and saying you will not revoke a will. Re Basham and Wayling v. Jones were both cases where a person said they would make a will and did not. This is a case where a person said she would make a will and did.

In my judgment, Mr Taylor's claim fails for the same reason as the government's claim failed in Humphreys Estates.

In case I should be wrong, I go on to consider whether it would be unconscionable for Mrs Parker, through her executors, to insist on her unfettered ownership of Heatherdene and the rest of the estate. In Crabb v. Arun District Council Scarman LJ said in the passage I have already quoted that the court cannot find an equity established unless it is prepared to go as far as to say that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim being made by the plaintiff.

In Inwards v. Baker [1965] 2 QB 29, 37 Lord Denning said that the court would not allow the plaintiff's expectation to be defeated where it would be inequitable so to do, and he repeated those words in Ives (ER) Investment Ltd v. High [1967] QB 379, 395.

In my view, there was nothing unfair, unjust or morally objectionable in Mrs Parker's change of will in 1995. She thought Mr Taylor was presuming on her generosity and Mrs Bosher was more likely to carry out her wishes with regard to Heatherdene.

What could be criticised on moral grounds, and what I think some of her friends found distasteful, was not telling Mr Taylor at the time. As a result, Mr Taylor went on working for 9 months without wages in the mistaken belief that he was likely to inherit Heatherdene.

In making a moral judgment, however, one has to bear in mind that Mrs Parker was 85, in acute pain, lonely, frightened of a confrontation with a younger man, desperate to die in her house, and anxious to have the house preserved after her death in the way in which she would wish.

The failure to inform does not, in my judgment, raise an equity in Mr Taylor's favour, certainly not an equity which would entitle him to Heatherdene or the residuary estate. For all those reasons the plaintiff's claim fails, and the action will be dismissed.