Boswell and Others v Lawson and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Wilson,Lord Justice Jacob |
| Judgment Date | 19 April 2011 |
| Neutral Citation | [2011] EWCA Civ 452 |
| Date | 19 April 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2010/1474 |
[2011] EWCA Civ 452
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE-UPON-TYNE COUNTY COURT
MR RECORDER HOLMES
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jacob
Lord Justice Lloyd
and
Lord Justice Wilson
Case No: B2/2010/1474
Simon Goldberg (instructed by Swinburne & Jackson LLP) for the Appellants
Jacqueline Smart (instructed by Foley Harrison) for the Third Respondent
James Richardson (instructed by Mincoffs) for the Fourth Respondent
The First and Second Respondents were not present or represented
Hearing date: 7 March 2011
This appeal is about the will of the late Mr John Thomas Lynch Appleby. He and his wife Alice Doreen Appleby had four children: the three claimants are their daughters, and Philip John Appleby is their son. Carol Ann Appleby is (or was) married to Philip John Appleby. Mr Lawson and Mr Hudson are Mr John Appleby's executors; they took no part in the appeal. Mrs Appleby died on 28 December 2004 and her husband on 21 March 2007. I will refer to the deceased as Mr and Mrs Appleby respectively.
On 13 November 1990 Mr Appleby executed a Deed of Gift by which a property, The Stephenson's Arms, Wylam, ("the Property") which was their home and stood in his sole name, became vested in the joint names of himself and his wife, on trust for themselves as beneficial tenants in common in equal shares.
On the same date both he and his wife executed wills, in matching terms. The relevant provisions of each will are as follows:
i) By clause 5 the testator's half share in the Property was given to their son Philip Appleby, with a direction that the Property was not to be sold, while the surviving spouse was alive, without his or her consent, and with a substitutional gift in case Philip Appleby did not survive the testator.
ii) By clause 6 the residuary estate was to be held for the surviving spouse absolutely.
iii) Clause 7 said that if the spouse predeceased the testator, "then and only then clauses 8 and 9 hereof shall have effect".
iv) Clause 8 gave the residuary estate of the testator to such of the children as survived the testator, if more than one in equal shares, with substitutional provisions.
v) Clause 9 conferred administrative powers in relation to the residuary estate. Nothing turns on it for present purposes.
It appears that Mr Appleby was prompted to take these steps by the thought that it might make it possible to reduce the exposure of the Property and their respective estates to inheritance tax on their deaths.
In the events that happened, the terms of the wills are such that Mr Philip Appleby is entitled to the whole of the Property, by virtue of clause 5 of the will of each of his parents, and the residuary estate of Mr Appleby is divisible between the four children in equal shares.
The three daughters contend that this is not what their parents intended, and that Mr Appleby's will should be rectified, under section 20 of the Administration of Justice Act 1982, so as to have the effect that they say he intended, namely that on his death as the survivor, the whole of Mr Appleby's estate, including his half share of the Property, should be divided equally between the four children. Although it is apparently contrary to his interest, Mr Philip Appleby supports this argument. It is opposed by his estranged wife, Mrs Carol Appleby, whose interest it is that his assets should be the greater, from which she can claim financial provision on their divorce.
The 1982 Act allows the court to order the rectification of a will if, so far as relevant:
"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".
The proceedings were brought outside the statutory time limit, but the court has power to extend time. Appropriately (on the facts of this case) the issue as to whether to extend time was taken together with the issue of substance. The case was heard by Mr Recorder Holmes in the Newcastle-upon-Tyne County Court. He considered that the claim was not well made out and refused to extend time. With permission granted by Lord Justice Ward, the claimants appeal, supported by Mr Philip Appleby, who served a Respondent's Notice.
As below, the claimants were represented on the appeal by Mr Goldberg, Mr Philip Appleby by Miss Smart and Mrs Carol Appleby by Mr Richardson. The executors were not represented on the appeal. All three Counsel assisted the court with clear skeleton arguments and succinct oral submissions.
The appellants' case is that Mr Appleby's will does not represent his testamentary wishes as they were at the time. That case is supported by evidence from immediately after the date of the two wills. On 19 November 1990 Mr Philip Morris, the solicitor who had drawn the wills, wrote to Mr and Mrs Appleby, sending them copies of the two wills and also his firm's bill of costs. Mr Appleby replied on 28 November enclosing a cheque. The two letters undoubtedly provide material which supports the contention that the wills do not accord with the intentions of the testators.
The letter dated 19 November is as follows:
"Dear John and Alice,
I refer to our discussions on 13 th November when you signed the Deed of Gift and your Wills. The effect of the Deed of Gift is to put the house and land into joint names so that you each own one half thereof. On the death of the first of you the deceased's share will not vest in the other one but will devolve under the terms of your will.
The Wills provide that on the death of the first of you that person's share in the house and land goes to Philip. If Philip has died before you (and the way he drinks there is no telling what might happen) then it will go to any children of his and will vest in them when they reach the age of 23. On the death of the second of you the other half of the house and land and all the rest of your estate is divided equally between all of your children including Philip. Again if any of your children have died before then leaving grandchildren the grandchildren would take their parent's share on reaching the age of 23.
It is also written into the Will that on the death of the first the property cannot be sold without the consent of the second until the death of the second.
I enclose copies of your Wills which should be kept with your papers and confirm that I hold the originals on your behalf in safe custody. I also enclose the firm's bill of costs for your kind attention.
Yours sincerely"
Mr Appleby's reply on 28 November was, so far as relevant:
"Dear Philip
Thank you for your letter and enclosures dated 19th November describing the Deed of Gift and Wills. My wife and I are satisfied with the arrangements. …"
Thus, the letter dated 19 November explains the effect of the wills in a way which does not correspond with their actual effect, because it says that, on the death of the survivor, the remaining half share of the Property is divided, together with the residuary estate, between all the children, instead of going to Mr Philip Appleby alone. The appellants contend that Mr Morris' explanation of the will shows what he had been instructed to achieve, aimed to achieve, and thought he had achieved, when drafting the wills, and that Mr Appleby's statement that he and his wife were satisfied with the arrangements as described shows that the description in the letter accorded with his understanding and intention as well.
Perhaps not surprisingly after the lapse of time, no note of the instructions taken by Mr Morris for the wills or the Deed of Gift survives in the records of Lawson & Thompson, nor did Mr Morris have any actual recollection of the relevant events. He gave evidence at the trial. He had known both Mr Philip Appleby and his wife Mrs Carol Appleby. The introduction to Mr John Appleby and his wife was effected by Mr Philip Appleby, for the purpose of these transactions.
Mr Morris described his normal practice in his oral evidence. Assuming that he followed that practice as described, he took instructions for wills from his clients without any of the beneficiaries in attendance. He took notes of the instructions given. From those notes he drafted the wills (and the deed of gift). He made an appointment for the clients to attend in order to execute the documents at the end of the working day. On that occasion he explained the documents to his clients in laymen's terms, rather than reading them through verbatim. After the execution of the documents, he dictated a letter with which copies of the wills would be sent to the clients, which would serve both as an attendance note and as an explanation to the clients. When dictating the letter he had in front of him both the will and the file including his notes of instructions. The letter would have been dictated more or less immediately after the appointment for the execution of the documents. Any delay before it was typed, signed and sent was the result of the weight of business and the fact that he operated a branch office and his primary tasks were litigation-based. In cross-examination he said this:
"Basically I run a branch office. It was litigation based. I was out at court most of the time. There were always urgent litigation things coming in, so something non-urgent like sending out a will which had been signed would always drop back and back, and eventually go out."
If Mr Morris' notes of his instructions were accurately reflected in the terms of his letter, then it seems that the wills as executed did not conform with the...
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