Alan Geoffrey Bracey v Pamela Carol Curley
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 21 February 2022 |
| Neutral Citation | [2022] EWHC 359 (Ch) |
| Docket Number | Case No: PT-2020-BRS-000089 |
| Court | Chancery Division |
[2022] EWHC 359 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY, TRUSTS AND PROBATE LIST
IN THE ESTATE OF ALAN GEORGE BRACEY DECEASED
Bristol Civil Justice Centre
2 Redcliff Street, BS1 6GR
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: PT-2020-BRS-000089
Steven Ball (instructed by Burges Salmon LLP) for the Claimant
Joss Knight (instructed by John Hodge Solicitors) for the First Defendant
Thomas Entwhistle (instructed by Humphreys & Co) for the Second Defendant
Hearing dates: 8 & 9 February 2022
Approved Judgment
Philip Mott QC:
Alan George Bracey (“the Testator”) died on 27 May 2018. Probate was granted to the Second Defendant on 16 March 2020 in relation to his Will dated 31 July 2015 (the Will”). This action involves a dispute between his son, the Claimant, and his daughter, the First Defendant, about that Will. The Second Defendant has been represented at trial, but takes a neutral position.
Although there were early challenges, it is now accepted that the Will was validly executed, and that the Testator had testamentary capacity and knowledge and approval of the contents of the Will at the relevant times.
The issues relate to (a) the proper construction of Clause 5 of the Will using general common law principles; (b) whether section 21 of the Administration of Justice Act 1982 (“the 1982 Act”) applies, so as to allow evidence of the Testator's intentions, and if so how does that affect its interpretation; and (c) whether the Will can and should be rectified under the provisions of section 20 of the 1982 Act.
Background
The Testator was married to Irene Bracey. They had two children, Pamela (the First Defendant) born in 1960, and Alan (the Claimant) born in 1964.
On 30 July 1975, which was the Claimant's 11 th birthday, the family moved into a property called Briardale, at Chesley Hill, near Bristol. It appears to have been in the Testator's sole name throughout.
The Testator developed and ran a coachbuilding business called A.G. Bracey Limited, with premises at Pucklechurch and Chesley Hill. It was successful, and the Testator was able to buy a number of properties in addition to Briardale. One called Linacre was in Shaldon, Devon, and consisted of a bungalow and about 11 acres of land. Another was at Ingleside Road, which was sold in 2016. There was also freehold land at Chesley Hill on which the business premises there were built.
In about 2011 there were a number of meetings with Dunkleys accountants to discuss inheritance tax planning. As a result a new company was formed, A.G. Bracey Properties Limited. Although I have not seen the relevant documents in relation to this company, I was informed that the Testator transferred to it the properties and land at Shaldon, Ingleside Road and Chesley Hill, which were held on discretionary trusts with the potential beneficiaries being the Claimant, the First Defendant, and any children of theirs.
In about October 2011 the Testator was diagnosed with Lewy Body dementia. Despite this, he retained testamentary capacity and there is no challenge to the validity of his Will executed on 31 July 2015.
On 12 December 2014 the Testator gave instructions for a new will to Angela Thomas, then a partner in the firm Kirby Sheppard LLP. She drafted the Will, and attended the Testator on 31 July 2015 when he executed it. By that date her firm had merged and become Barcan+Kirby LLP.
In May 2016 Mrs Irene Bracey, the Testator's wife, died. In late 2014 she had been described as very ill with sleep apnoea, and requiring oxygen therapy.
On 27 May 2018 the Testator died.
The terms of the Will
The Will appoints the Second Defendant as sole executrix and Trustee (clause 2(a)). The term “ my Trustees” is defined by clause 2(b) as meaning (for the purposes of this case) the Second Defendant.
Clause 3 of the Will leaves the Testator's shares in A.G.Bracey Limited to the Claimant, who was then running the company. Clause 4 leaves his shares in A.G.Bracey Properties Limited to the Claimant and the First Defendant equally. The second numbered Clause 5 leaves the residue of his estate to the Claimant and the First Defendant in equal shares.
The issue in this case concerns the first numbered Clause 5 in the Will. It provides as follows:
a) IN this clause:
i) “Dwelling” means a freehold or leasehold house bungalow maisonette flat or flatlet in the United Kingdom and any grounds belonging to it
ii) “my House” means my house known as Briardale Chelsey Hill Bridgeyate Bristol BS15 5NE and the grounds belonging to it or other the dwelling which I may own (or hold under a lease) as my principal residence at my death
iii) “the Beneficiary” means my wife IRENE DORIS BRACEY (“my Wife”)
iv) “the Trust Period” means the period between my death and the death or earlier remarriage of the Beneficiary
b) IF the Beneficiary survives me I GIVE my House (free of tax and free of any money charged or otherwise secured on it which shall be paid free of tax out of my residuary estate as shall the cost of discharging any security and any interest falling due before discharge) to my Trustees ON TRUST to pay any income from the property in which the proceeds are currently invested and any income from my House until sale to the Beneficiary during the Trust Period
c) DURING the Trust Period my Trustees shall not (subject to the Beneficiary's reasonable compliance with the terms of (e) sell my House except with the Beneficiary's written consent but they shall sell my House at the Beneficiary's written request
d) FOR so long during the Trust Period as my House remains unsold my Trustees shall allow the Beneficiary to reside in my House
e) THE Beneficiary (whether or not currently residing in it) shall pay all outgoings in respect of my House (and observe and perform all the covenants and conditions contained in any lease under which it may be held) and keep it in good repair and shall keep it insured comprehensively and to its full reinstatement value with insurers approved by my Trustees and in the joint names of the Beneficiary and them
f) ANY money held by my Trustees under this clause may be invested in the acquisition of a Dwelling or in any other manner authorised by this Will in addition to all other powers for the investment of trust money (or partly in one way and partly in the other) and investments may at any time be transposed AND in deciding how to exercise these investment powers my Trustees shall have regard to the wishes of the Beneficiary
g) THE trusts powers and provisions in the foregoing sub-clauses shall apply in relation to any Dwelling acquired under the provisions of sub-clause (f) in the same way as they apply in relation to my House
h) WHEN the Trust Period ends my Trustees shall hold any property then the subject of this clause upon trust for my said son ALAN GEOFFREY BRACEY
I should note that the postcode for the house known as Briardale is incorrect in the Will. It should be BS30 5NE. The area is also mistyped as “Chelsey Hill” rather than “Chesley Hill”. But no one suggests that these mistakes make the provisions of this Clause 5 ambiguous, or the provisions invalid on that account.
The proper construction of this Clause 5, as it stands or as amended by any rectification, governs whether the house known as Briardale goes to the Claimant or falls within the residuary estate, to be governed by the second numbered Clause 5.
The proper approach to the construction of a will
The first stage is to apply the common law rules of construction. It is accepted on both sides that these are set out in the Supreme Court case of Marley v Rawlings [2014] UKSC 2. Lord Neuberger dealt with them at paragraphs [17] to [26]. The court's role is to identify the meaning of the relevant words in the light of a number of factors:
i) The natural and ordinary meaning of the words;
ii) The overall purpose of the will;
iii) Any other provisions of the will;
iv) The facts known or assumed by the parties at the time the will was executed; and
v) Common sense.
At this stage of the process, the court should ignore any subjective evidence of the testator's actual intention. If the court is able to reach an interpretation using this methodology, that is an end of the process.
The aim is to identify the intention of the testator by interpreting the words used in their documentary, factual and commercial context, as with the interpretation of a contract. In the old cases this is described as “the view from the testator's armchair”.
At the second stage there is a further statutory aid to construction in limited circumstances. Section 21 of the 1982 Act provides as follows:
“(1) This section applies to a will – (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.”
The third stage, if the construction is clear but fails to carry out the testator's intentions, is to consider rectification of the will. Section 20(1) of the 1982 Act provides as follows:
“If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence – (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out...
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