Blades v Isaac and another
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 21 March 2016 |
| Neutral Citation | [2016] EWHC 601 (Ch) |
| Docket Number | Case No: HC-2015-003862 |
| Court | Chancery Division |
| Date | 21 March 2016 |
[2016] EWHC 601 (Ch)
Master Matthews
Case No: HC-2015-003862
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Hewitt (instructed by Charles Russell Speechlys LLP) for the Claimant
Piers Feltham (instructed by Tanners LLP) for the Defendants
Hearing dates: 16 February 2016
INTRODUCTION
This is my judgment on a claim made by claim form under Part 8 of the CPR issued on 4 September 2015. The Claimant is a member of a class of objects of a discretionary trust created by the will of Mrs Valerie Mary Lee, dated 9 August 2012. The testatrix died on 19 June 2013 (sadly, as the result of a road traffic accident). The defendants are (1) the sole proving executor of the will and sole accepting trustee of the will trust, and (2) a subsequently appointed co—trustee of the will trust. (The other two named executors renounced probate.) The two defendants are partners in Tanners Solicitors LLP, the firm of solicitors that advised the testatrix and drew up the will. The Claimant is one of the two children (both daughters) of the testatrix. The other members of the class of objects originally consisted of the Claimant's husband and children, and the testatrix's domestic cleaner. At a later stage, the Claimant's sister, Deryn Binder (the other child of the testatrix), was added to the class, pursuant to a power in that behalf.
The claim was essentially for disclosure of information from the defendants. The claim form sought:
"1. An order that the First Defendant provide to the Claimant a full inventory of the estate of the [testatrix] ("the Estate") and a full account of his dealings with the Estate, including a breakdown of all charges made to the Estate by him and by Tanners Solicitors LLP.
2. If and to the extent that it may be necessary, an order requiring the Defendants as trustees of the trust created by the will of [the testatrix] ("the Will Trust"):
(a) to obtain from the First Defendant in his capacity as sole personal representative of the Estate the information identified at 1 above; and
(b) to disclose the same to the Claimant.
3. An order that the Defendants as trustees of the Will trust provide to the Claimant full details of:
(a) the assets comprised in the Will Trust on its creation;
(b) their dealings with such assets;
(c) the assets currently comprised in the Will Trust; and
(d) a breakdown of all charges made to the Will Trust by them and by Tanners Solicitors LLP.
4. Such further or other relief as the Court thinks just.
5. An order that the Defendants pay the Claimant's costs of these proceedings and their own costs personally without recourse to the assets of the Estate or the Will Trust."
PROCEDURE
In support of her claim, the Claimant made a witness statement dated 2 September 2015, with one exhibit ("Blades 1"). The First Defendant made a witness statement in response, dated 1 October 2015 ("Isaac"). The Claimant made a second witness statement, with another exhibit, on 27 October 2015 ("Blades 2"), replying to that of the First Defendant. Both defendants filed acknowledgments of service indicating an intention to defend the whole claim. As it happened, by the time that the claim came to be heard by me, on 16 February 2016, the defendants had on 21 January 2016 changed their minds, apparently on the advice of different counsel from that whom they had originally consulted, and had given to the Claimant the disclosure of information sought in paragraph 1 of the Claim Form. The hearing before me was therefore essentially about costs. But for this purpose it was necessary for me to be taken through the events that had happened, and to be addressed on the law relating to trustees' costs. Some aspects of the law relating to the disclosure of information of beneficiaries of estates and trusts were also inevitably relevant.
There was a directions hearing on 5 November 2015. It was argued for the defendants that, given that the Claimant was raising issues that might have been raised by the defendants, these proceedings were to be treated as if they were an application for directions brought by them as trustees, and that the Claimant's sister Deryn ought to be joined as a party. On that occasion I decided that it was not appropriate to treat the proceedings in that way. The Claimant was claiming that in refusing to disclose information and documents to her the defendants were failing in their duties as trustees. In substance these were hostile proceedings, and the Claimant was not obliged to join her sister if she did not wish to. Moreover, the sister was then making, and since then has made, no application to be joined.
I also directed on that occasion that the parties might request permission to cross-examine witnesses at the final hearing by giving written notice to me by 11 November 2015. Neither party did so, and accordingly there was to be no cross-examination at the final hearing. As it has turned out, the main issue between the parties (the disclosure by the defendants to the Claimant) has now gone. But it is still necessary to set out some of the facts, which I take from the witness statements filed, and already referred to above, and there are still some disputed elements of fact. Since there was no application made for cross-examination of any witness, the evidence given in the filed witness statements, at least so far as consistent one with another, is unchallenged. So far as that evidence is inconsistent, the rule is that the court is not entitled to reject any written evidence as being untrue, unless on the basis of all the evidence before the Court the Court considers that that written evidence is simply incredible: see egLong v Farrer & Co [2004] BPIR 1218, [57]–[61], applied in Shierson v Vlieland-Boddy [2005] 1 WLR 3966, CA, [56], Coyne v DRC Distribution Ltd [2008] EWCA Civ 488, [58]. This is a high threshold to reach. I add that, at the hearing, I was not invited to disregard any of the written evidence on that basis.
FACTS
The Claimant is some 14 years younger than her sister, Deryn Binder. (There was an intermediate sibling who unfortunately died.) Each sister married and had children. Both sisters and their husbands at some point worked together in the family business, which was a very successful one. However, relationships between them became strained, and after some years the Claimant and her husband left the business and moved away. The relationship between the Claimant's father and her brother in law thereafter broke down, which affected the relationship between the Claimant's sister and her mother. That in turn had an impact of some sort on the relationship between the Claimant and her sister. There are some differences in the evidence about what that impact was, and how friendly they were at the time of the testatrix's death and thereafter. I refer to this below.
By the testatrix's will, she appointed the First Defendant and two other professional men as her executors and trustees. As mentioned above, the other two renounced probate, and only the First Defendant proved the will, obtaining a grant on 28 January 2014. The value of the estate was stated to be £903,574. The testatrix left her entire estate to her trustees on discretionary trusts for a class consisting originally of the Claimant, her husband, her children and the testatrix's cleaner, but with power to add further members in future.
The First Defendant subsequently appointed the Second Defendant as co-trustee of the will trust. The testatrix left a letter of wishes. This included suggested gifts to members of the class, but also 5% of the estate for the Claimant's sister, although of course she was not originally a member of the class. On 1 October 2014 the trustees exercised their power to add Deryn to the class. Subsequently, in 2014 and 2015 distributions were made out of the will trust to all the members of the class, including Deryn, other than the Claimant's husband.
The evidence shows that the Claimant was unhappy with the defendants and their law firm almost from the beginning of their involvement in the administration of the estate. On 12 August 2013, Tanners wrote to both the Claimant and Deryn asking them to limit communications with the First Defendant (as personal representative) "as they only add to the costs of the administration". The Claimant responded that, whilst she did not wish to increase the costs, she did want a more sympathetic approach, and more explanation, and she did not see why that should add much cost (Blades 1, paras 18–19).
More importantly in the context of the present claim, on a number of occasions the Claimant asked the defendants for a detailed breakdown of the testatrix's estate. The defendants refused, on the basis that the estate accounts were documents confidential to the executor and the trustees, and were not to be distributed to the beneficiaries of the will trust. The Claimant's complaint was that, if that were right, since the executor was one of the trustees, and both were partners in Tanners LLP, the law firm acting for them, which had carried out the administration for reward, "nobody apart from the Defendants themselves could scrutinise what one of them ([the First Defendant]) has done or how much their own firm (Tanners) has charged in relation to the administration of [the testatrix's] estate" (Blades 1, para 21).
THE RELATIONSHIP BETWEEN THE SISTERS
The defendants justified this approach by saying that they were aware of the difficult relationship between the two sisters and that they had genuine concerns about the disclosure of the information sought to one of the two daughters. In the First Defendant's evidence the matter is put his...
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