55.
Bane must have brought this draft with him to the lunch meeting at Trowers &
Hamlins, which according to a brief attendance note prepared by Mr Whittaker Jones
lasted for two and a quarter hours. If Mr Trower himself made an attendance note of
the meeting, it has unfortunately not survived. The lunch itself, according to Mr
Whittaker Jones’ recollection as set out in his witness statement, was not at the firm’s
offices but again at Simpsons on the Strand. He remembers the lunch for a memorable
discussion with Bane of his love of art. Either during the lunch, or perhaps more
probably just before it, the 1989 Will was signed by Bane and witnessed by another of
Mr Trower’s partners, Mr Martin Amison. The other attesting witness was a Ms
Heather M Gregory. The will as executed consisted of Bane’s typed draft on the
notepaper of Transtrade UK Ltd, but with certain manuscript alterations made in the
handwriting of Mr Trower. The first alteration was the addition of Mr Whittaker
Jones as a third executor, together with Archpriest Kostic and Mr Trower. The second
alteration was the deletion of the words “for the purpose to” after the gift to the CPA
and their replacement with the words “in the hope that it will”. Similarly, at the
beginning of the following paragraph the words “Each year to” were deleted and
replaced with “I hope that it will each year”. The purpose of these two alterations was
obviously to replace purpose trusts, which would probably if not certainly have been
void, with mere expressions of a wish or hope as to how the money would be applied
(“precatory words” in the jargon of probate lawyers). However, if the words are
indeed to be construed as mere precatory words, not imposing any trust, the effect of
the 1989 Will was again to leave the whole of Bane’s estate to the CPA, albeit subject
to a non-legally binding expression of wishes as to how it was to be applied. Since
Bane had recently given emphatic instructions for the revocation of his 1988 Will
leaving the entirety of his estate to the CPA, one may be forgiven for wondering
whether this was really what he intended, or how fully and carefully the matter was
explained to him by Mr Trower before or during their lunch.
56.
The final manuscript alteration made by Mr Trower to Bane’s draft was the addition
of an attestation clause in standard form. He does not seem to have noticed that the
reference to “the undersigned executors” in the last paragraph of the draft was
inappropriate, nor did he delete the words “entrusting and commanding” them to
establish the cultural foundation, notwithstanding the apparent conflict between that
mandatory language and the precatory words which he had been at pains to substitute
earlier in the draft.
57.
Of the two witnesses to the 1989 Will, Ms Gregory has apparently not been traced,
but Mr Amison has provided two witness statements. In his first statement he says
that his office was near to Mr Trower’s on the ground floor of 6 New Square, and as a
result he was sometimes asked by Mr Trower to witness clients’ wills. He confirms
his signature on the 1989 Will, but has no recollection of its signing or of any details
about Bane. In his second statement he confirms that the manuscript attestation
clause is in Mr Trower’s handwriting, and also confirms his understanding that
alterations to a will need to be made before execution. He goes on to say:
“It is inconceivable to me that the alterations could have been
made after execution, as I would have refused to sign or initial
against such alterations and I recognise my signature against
such alterations to the Will.”