Andrew Guest v David Guest

JurisdictionEngland & Wales
CourtChancery Division
JudgeRussen
Judgment Date16 Apr 2019
Neutral Citation[2019] EWHC 869 (Ch)
Docket NumberCase No: D31BS620

[2019] EWHC 869 (Ch)

IN THE HIGH COURT OF JUSTICE

IN THE BUSINESS AND PROPERTY COURTS AT BRISTOL

PROPERTY TRUSTS AND PROBATE LIST (Ch)

Bristol Civil & Family Justice Centre

2 Redcliff Street, Bristol BS1 6GR

Before:

HH JUDGE Russen QC

(Sitting as a Judge of the High Court)

Case No: D31BS620

Between:
Andrew Guest
Claimant
and
(1) David Guest
(2) Josephine Guest
Defendant

Philip Jenkins (instructed by Clarke Willmott LLP) for the Claimant

Guy Adams (instructed by Twomlows) for the Defendants

Hearing dates: 5–7 November and 17–19 December 2018

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HH Judge Russen QC

His Honour Judge Russen QC:

Introduction

1

In these proceedings a son, Mr Andrew Guest who is now aged 52, makes a claim against his parents Mr David and Mrs Josephine Guest. Because of their common surname and without intending any discourtesy towards any of the parties, I will refer to the claimant as Andrew and to the defendants, as appropriate, either by their own first names or by reference to their relationship with Andrew (and his siblings).

2

Andrew's claim is upon the family farm known as and situate at Tump Farm, Sedbury, Tutshill, Chepstow, Monmouthshire (“Tump Farm”) and the farming business carried on there. The freehold of the farm and buildings is owned by David who lives with Josephine in the farmhouse there. Since Andrew left the farm in 2015 (and, with that departure, the partnership he had more recently carried on with his parents since 2012 under the name of the Ladysmith Farming Partnership) the parents have continued to carry on its dairy farm business in partnership.

3

Andrew's claim rests upon principles of proprietary estoppel. The setting for the claim is the not unfamiliar one of the next generation farmer claiming an interest in the farm owned by his father and doing so by reference to alleged assurances that he would inherit the farm (or a substantial interest in it) and devoting his working life accordingly for no great financial reward. Josephine is also a defendant to the claim because, with Andrew and David, she is a continuing partner in the dairy farm business.

4

Andrew worked full time at Tump Farm between 1982, when he left school at the age of 16, having previously helped out with farming tasks during his childhood as one might expect a farmer's son, with an interest in farming, to have done. He continued to do so until the Spring of 2015 when the parents offered him terms, for carrying on under a Farm Business Tenancy (“FBT”) following the dissolution of the Ladysmith Farming Partnership, which he felt unable to accept on the ground that they were unaffordable.

5

Andrew's claim also extends to Granary Cottage, a dwelling situated on Tump Farm (it is semi-detached from Tump Farmhouse) and subject to an agricultural occupation tie under the planning permission granted in early 1989 which permitted its conversion from a former barn. Allowing for the fact that Andrew has quite recently had to move closer to his alternative places of work since he fell out with his parents, Granary Cottage had since November 1989 been the home of Andrew and his wife Tracey (and later his children) following their marriage in June of that year. The parents gave Andrew and his family notice to quit Granary Cottage in July 2017 having the month before pointed out in a solicitors' letter the significance of the agricultural occupancy tie. That notice followed Andrew's receipt in early 2016 of a letter from the Forest of Dean District Council alleging such a breach. That letter in turn reflected the fact that someone must have told the Council that, as a result of him falling out with his parents, Andrew no longer worked at Tump Farm and had found it necessary to seek alternative employment elsewhere.

6

Andrew has had several different jobs since leaving the farm. He, Tracey and their adult son Richard (who works in Cirencester) are currently living near Tewkesbury and a few miles away from Andrew's current place of work. Their adult daughter Hannah is a teacher and living near Reading. At the time of the trial, he was working as senior herdsman at a salary of £33,000 p.a. on terms that his employer also paid the rent on his home situated a couple of miles from his workplace.

7

When he issued his Claim Form in August 2017 Andrew's Particulars of Claim sought, in addition to a declaration of an entitlement to occupy Granary Cottage, a declaration of entitlement under the doctrine of proprietary estoppel to the entire beneficial interest of Tump Farm and the farming business carried on there, with an alternative claim to an equity over the farm and business to be satisfied in such manner as the court might decree.

8

Relief was sought in that form (on the primary basis that Andrew was entitled to the entirety of Tump Farm) notwithstanding the express recognition in the Particulars of Claim that, before the parties fell out, there had been discussion of succession arrangements under which Andrew's younger brother Ross Guest (“Ross”) would also feature. I will return to those contemplated succession arrangements below. For the purposes of this introduction, it is sufficient to note that Ross is 12 years younger than Andrew, and is now aged 40, and that he now farms beef cattle on the neighbouring Dayhouse Farm under a FBT in the ownership of a third party (through a partnership with his parents known as the Dayhouse Farming Partnership also established in 2012). In circumstances where Andrew and Ross do not get on — father had tried to get them to work together by providing capital which enabled them to set up a quad bike and paintball activity business at Tump Farm which they ran for some years before later falling out in the early 2000's — Andrew's Particulars of Claim recognise that the implementation of those arrangements would have meant he would have to have bought out Ross' anticipated interest in Tump Farm, arising alongside Andrew's own anticipated interest on the second of the deaths of his parents.

9

As appears below, there is also the interest of a sister, the middle child Janice Morris (“Jan”), to be considered when considering the impact of Andrew's proprietary estoppel claim.

10

As early as October 1981 the father had made a Will which, in essence, was designed to ensure that the two sons would inherit Tump Farm and its business in equal shares (contingent upon each attaining 25) but on terms that they would have to raise monies to pay a pecuniary legacy to their sister Jan which was equal to one-fifth of the value of the residuary estate (payable in 5 equal annual instalments beginning one year from father's death). If Josephine survived David, so that she would first inherit David's interest in the farming land and buildings under a trust for sale, his trustees had power to grant agricultural and occupation tenancies which would have covered the sons' position during her remaining life. To cover that eventuality of her surviving her husband and taking under his Will, Josephine's 1981 Will was broadly to the same effect (though the respective terms of the 1981 Wills indicate that the land and buildings were not partnership assets but held by David and his mother in their own right). A manuscript alteration to father's 1981 Will indicates that he had previously had it in mind to equate Jan's legacy to the value of one-quarter of the residuary estate.

11

Things have since moved on so far as the parents' testamentary wishes are concerned. They now defend Andrew's claim in the light of a new Will, made by David Guest on 5 January 2018 and therefore after the commencement of these proceedings, which makes it clear that (after providing for Josephine's right to occupy the farmhouse and to be paid her living expenses out of the business income) only Ross and Jan will benefit. In essence, the 2018 Will provides Ross to receive to receive Tump Farm (and his father's share of the business) and that Jan should receive a legacy of £120,000 and a 2.5 acre field behind the farmhouse (and the rental income from the telecommunications mast which stands on that piece of land).

12

In what might be described very loosely as a letter of wishes but is really a letter of justification (bearing the same date of the Will and headed “to whom it may concern”) David set out his reasons for not including Andrew in his Will. Of course, no testator really has to justify the exercise of his testamentary discretion and the date and content of the letter indicate to me that it is as much about David justifying his position in relation to Andrew's departure from the farm after the first 30 years or so of his adult working life. The letter talked of Andrew continuing to occupy Granary Cottage whilst refusing to pay a market rent and that “ I have excluded him completely from my will today because over the years I have lost all trust in him” (this followed by a reference to Andrew failing to honour an agreement to pay David's income tax from the Ladysmith partnership account, to make agreed transfers aimed at providing some subsidy to the Dayhouse business, and to certain other matters). It concluded with a statement that David did not inherit Tump Farm from his own parents and “ I have never promised any of my children any sort of inheritance”.

13

Whereas the terms of the parents' 1981 Wills were never openly discussed within the family – Andrew said he only became aware of it in the context of these proceedings and his expectation of an inheritance was based upon more general comments – the 2018 Will (and letter) is therefore designed to let each of the three children (and especially Andrew) know where he or she stands.

14

In fact, because of the deterioration in his...

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