Brown v Bimson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HENDERSON |
| Judgment Date | 26 July 2010 |
| Neutral Citation | [2010] EWHC 3679 (Ch) |
| Court | Chancery Division |
| Date | 26 July 2010 |
| Docket Number | Claim No: GLC 220/10 |
[2010] EWHC 3679 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand London WC2A 2LL
Mr Justice Henderson
Claim No: GLC 220/10
Mr Toby Bootle Appeared On Behalf Of The Claimant
Ms Georgia Bedworth Appeared On Behalf Of The Third And Fourth Defendants
Approved Judgment
No of Folios —56
No of words —4,022
This is an application under section 20 of the Administration of Justice Act 1982 for rectification of the Will of the late Mrs Patricia Bimson who died on 10 th September 2008. She was survived by her husband Mr David William Bimson, who is the Second Claimant and to whom I will refer as David. She was also survived by her two sons, Adam and Mark, who are respectively the Second and First Defendants. They are both adult and they have filed acknowledgements of service indicating that they do not intend to oppose the claim. Adam and Mark each have a child of their own. Mark has a son, Luke, who was born on 17 th August 2000 and is therefore now nine years old, and Adam has a daughter, Philippa, who was born on 15 th June 2008, shortly before Mrs Bimson's death. Those two children were not joined originally as Defendants, but they were subsequently added by order of Master Moncaster and are now represented before me by counsel instructed on their behalf, Ms Bedworth. Their litigation friend, Mr Brian Stokes, is, as I understand it the brother of the deceased and therefore their great uncle. They too, through counsel, do not oppose the application, but Ms Bedworth has very properly considered on their behalf whether there are any grounds of opposition which should be advanced and she has come to the conclusion, which I can already indicate I share, that this is indeed a clear case for rectification.
Mrs Bimson's last Will was made on 8 th July 2008. In it she named as her executors David, Mark, Adam and the partners at the date of her death in the firm of Ashton Graham, the solicitors who had acted for her in the preparation of the Will. For present purposes one of the most important provisions in the Will is the definition in clause 3.4 of "the Beneficiaries", who are defined as meaning "Mark, Adam and remoter descendants, whether living at my death or born thereafter." It will be noted that David is not included in that class, and it is his omission from the class of Beneficiaries which gives rise to the application before me. Other relevant definitions were of the Trust Period, defined as meaning the period of 80 years beginning with the date of the Testatrix's death, and the Accumulation Period, meaning the period of 21 years beginning with her death. Subject to various bequests on which nothing turns for present purposes, Mrs Bimson gave all of the residue of her estate to her Trustees on trust to pay her debts and funeral and testamentary expenses and so forth, and to hold the remainder, defined as "my residuary estate", upon the trusts thereinafter set out.
Clause 8 then set out the trusts of residue under the heading "Residuary Trusts." It provided that "subject to the overriding powers below," and I interpose that those are the powers set out in clause 9, the Trustees were to pay the income of the residuary estate to David during his life. So David had a full life interest in the income of residue. Subject to that, and subject also to the overriding powers in clause 9, the Trustees were then directed to hold the residuary estate on trusts whereby they had power to accumulate the whole or any part of the income of the Trust Fund during the Accumulation Period, subject to which there was a discretionary trust of income to or for the benefit of any of the Beneficiaries during the Trust Period, followed by a default trust of both capital and income of the Trust Fund for such of the Beneficiaries as should be living or in existence at the expiry of the Trust Period, and if more than one in equal shares absolutely.
It should be noted that those gifts in remainder all take effect subject to the prior life interest of David, so the Beneficiaries for the purposes of those provisions would, at least in normal circumstances, not include him, because he would, of course, be dead before they came into effect. I say "in normal circumstances," because had he surrendered his life interest during his lifetime the question might then have arisen whether the powers were exercisable in his favour during his lifetime; but that has not occurred, and the possibility can therefore be ignored.
I now move on to the overriding powers. Clause 9 is headed "Overriding Powers," and states that the Trustees are to have the following powers during the Trust Period, which are then set out. They include a power to appoint any trust property for the benefit of any of the Beneficiaries on such terms as the Trustees think fit; power to transfer trust property to a new settlement under which every Beneficiary is, or would if living be, a beneficiary; and, perhaps most materially, a power of advancement in the following terms:
"The Trustees may pay or apply any trust property for the advancement or benefit of any Beneficiary." (Quote unchecked)
It is then provided that the overriding powers are to be exercisable only during the Trust Period, and only where there are at least two Trustees or the Trustee is a trust company. It will be noted that David is not an object of any of those powers, because he is not included in the defined class of Beneficiaries, and that is so even though the powers are plainly exercisable at any time after the death of the Testatrix.
The circumstances in which the Will came to be executed are set out in a witness statement by Mrs Elizabeth Jane Dunn, who is a solicitor employed by Ashton Graham, and her witness statement is the only evidence before the court. She says that she acted for Mr and Mrs Bimson in drafting their Wills in 2008, and that Ashton Graham had previously prepared Wills for both of them in March 2007. She exhibits a copy of the 2007 Will of Mrs Bimson. I need not set out the provisions of that Will in any detail. It is enough to say that it contained a nil rate band discretionary trust, in the kind of form which was then regarded as a sensible piece of tax planning, subject to which it provided for the residue to be held in trust for David absolutely if, as of course happened, he survived his wife. Overriding powers were then conferred upon the Trustees in, I think, identical terms to those contained in her last Will of 2008. However, for the purposes of the 2007 Will the Beneficiaries were defined in clause 3.6 as including David, and then at 3.6.2 "my children, Mark, Adam and remoter descendants, whether living at my death or born thereafter", and also a stepson and stepdaughter of Mark, named respectively Ricky and Samantha.
On 1 st May 2008 Mrs Dunn attended on Mr and Mrs Bimson with a view to discussing possible changes to the Wills which they had made in March 2007. Her attendance note is exhibited to her statement. In it she records the updating information that they gave to her, including the fact that Mark had separated from his wife and a divorce was expected to follow in the near future, and various financial circumstances connected with that unfortunate development in Mark's matrimonial affairs. The discussion then moved on to the nil rate band discretionary trusts, and Mrs Dunn explained that following changes in the law these were no longer an obvious piece of inheritance tax planning, because of the availability of a double nil rate band on the death of the first spouse. There was also discussion about the advantages of retaining the protection of a trust while Mark's divorce was pending. It was agreed at the end of the meeting that Mrs Dunn would consider the best course of action and then write to the Bimsons setting out the options and the likely costs before any further action...
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