Amanda Marie Tish v Daren Thomas Olley
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Rose |
| Judgment Date | 09 May 2018 |
| Neutral Citation | [2018] EWHC 1069 (Ch) |
| Date | 09 May 2018 |
| Court | Chancery Division |
| Docket Number | Case No: HC-2015-003335 |
Neutral Citation Number: [2018] EWHC 1069 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (CHD)
IN THE ESTATE OF RAYMOND HOWARD TISH
AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Royal Courts of Justice
Rolls Building, London EC4A 1NL
Mrs Justice Rose
Case No: HC-2015-003335
Jordan Holland (instructed by Withers LLP) for the First and Third Claimants
The Second Claimant appearing as a litigant in person
The First and Second Defendants did not appear and were not represented
Robert Sterling (instructed by Gelbergs) for the Third Defendant
Hearing date: 23 April 2018
Judgment Approved
The Claimants have brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’) against the executors of the estate of the late Raymond Tish who died on 10 August 2014. He left a will which was made on 28 February 2014. Amanda Tish is the former wife of Mr Tish and Revan and Arabella Tish are her two children from her marriage with Mr Tish. Revan Tish is now 20 years old and Arabella is now 17. The First and Second Defendants are the executors of Mr Tish's estate and Louise Tish was Mr Tish's fourth wife and is now his widow. The proceedings were issued on 11 August 2015. On 7 December 2017, Master Clark ordered that a preliminary issue be heard to determine the proper construction of one clause of Mr Tish's will. It is important to know what that clause means in order to decide the extent of the different parties' entitlement under the will and hence whether it is necessary or appropriate to make any order under the 1975 Act.
At the hearing before me Mr Holland appeared for Amanda Tish and Arabella Tish. Revan Tish appeared as a litigant in person and adopted the submissions of Mr Holland. Mr Sterling appeared for Louise Tish. The executors did not appear and have taken a neutral stance in these proceedings.
The background to the claim is as follows. Amanda Tish met Mr Tish in 1990 and they married in 1993. Revan was born in January 1998 and Arabella in March 2001. Unfortunately the marriage broke down and Mr Tish left his family home in January 2005. Amanda Tish began divorce proceedings and ancillary relief proceedings in 2007 at which time Revan was nine years old and Arabella was six years old. Mr Tish has two other children, Natalie Tish from his second marriage and Justin Wigodsky from his first marriage.
On 22 November 2007 a consent order was made by District Judge Roberts sitting in the Principal Registry of the Family Division in London disposing of Amanda Tish's ancillary relief application (‘the 2007 Order’). The 2007 Order recited that the terms of the order were accepted in full and final satisfaction of all claims including Amanda Tish's claim for capital property adjustment and pension sharing orders. The financial provision made was that Mr Tish would pay £18,000 a year to Amanda Tish until she remarried or until further order. This was to be adjusted in line with inflation. Mr Tish was also ordered to pay £11,000 a year in respect of each of Revan and Arabella until they attain the age of 18 years or, if later, complete tertiary education. The money was to be paid to Amanda Tish for their benefit. This sum also was to be adjusted in line with inflation. In addition, Mr Tish had to pay Amanda Tish all school fees and reasonable extras incurred by the children because they attended private schools. He also undertook to the court to maintain his current life assurance policy with Zürich and to nominate the Claimants as beneficiaries of the policy. He was required to maintain the policy until the termination of his liability to pay the annual sums to Amanda Tish and the children or during the joint lives of him and Amanda Tish. The 2007 Order contained no express bar to any claim under the 1975 Act. It also acknowledged that the Order may need to be reviewed on his retirement or upon him reaching 65.
Tragically Mr Tish died of motor neuron disease when he was only 61. Louise Tish describes him in her witness statement as an “amazing man, full of vitality, optimism, energy and good humour, in short a lover of life”. He was she says “a fantastic husband” and stepfather to her own children. He discovered that he was ill in May 2012. Prior to that he had undergone a long period of tests and hospital visits trying to diagnose what was wrong with him. His condition deteriorated and he became more and more restricted in his movements. He gradually stopped being able to do all the personal and other tasks we take for granted until finally he lost the ability to write and to speak. Amanda Tish also says in her witness statement that after their rather long and difficult divorce proceedings their relationship improved dramatically by the time the early symptoms of Mr Tish's illness began to show. He spent a lot of time with Revan and Arabella Tish in the years just before his death.
The will was drawn up at a time when Mr Tish already knew that he had this progressive disease. Mr Olley who is an accountant and Mr Tish's former business partner took instructions from Mr Tish and relayed those to a Mr Cox who is a financial adviser who had previously carried out work for Mr Tish. The process by which the will was drawn up has been described by Mr Langley and Mr Ollie in their witness statements and the file of the firm who helped prepare the will has been disclosed. The main asset in Mr Tish's estate was his one third interest in Tish Press Ltd, the small accountancy firm in which he was a partner, a share which Mr Tish thought was worth about £500,000. According to the notes of a meeting between Mr Cox, Louise Tish and Mr Tish which took place on 7 November 2013, Mr Tish expressed the wish that his interest in Tish Press Ltd was to be held as to £100,000 for Louise Tish outright and as to £400,000 on trust for Louise Tish for life and thereafter for his children. There was some work done towards setting up trusts and indeed three pilot trusts were executed on 13 February 2014 together with a letter of wishes. However no substantial assets were settled on the trusts during his lifetime and no gift is made to these trusts in the will. Therefore the Tish Press Ltd assets fell into the estate's residue on Mr Tish's death.
The executors say that the gross estate in England and Wales for probate purposes amounted to £534,653 and the net estate amounted to £436,968. The one third share in Tish Press Ltd was valued at about £442,000. In addition to the assets which passed by his will, Mr Tish had taken out various insurance policies which made payments on his death and which do not form part of his estate. Both Amanda Tish and Louise Tish have received payments under such life insurance policies. The Zürich insurance policy referred to in the 2007 Order paid out about £359,000 to Amanda Tish. In addition Louise Tish is entitled to a private pension following Mr Tish's death.
Probate was granted to the executors by the Ipswich District Probate Registry on 13 February 2015 with power reserved to Louise Tish. The will includes the following provisions. By clause 1 the effect of the will is limited to his estate other than in Spain. Mr Tish also made a Spanish will which relates to his interest in a house in Majorca which he owned with Louise Tish. There are some specific gifts of precious items to his children and to Louise Tish. Clause 10 divides up the proceeds of sale of his Majorcan property valued at £150,000. He divides this into £100,000 to Natalie Tish, £25,000 to Arabella and £25,000 to Revan subject to them surviving him and attaining 25 years of age. Until the attainment of that age, he directs that the income shall be accumulated or applied wholly or in part in his trustees' discretion for their maintenance, education or benefit. I was told that there is a serious question mark over the validity of this gift, partly because it appears to be in conflict with clause 1 which excludes property in Spain from the estate and partly because it may be inconsistent with the forced heirship provisions of Spanish law.
Clause 11 is the clause which is the subject of this preliminary issue. It reads:
“ Maintenance
I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order as may be amended in...
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