Corbett v Bond Pearce
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE RIMER,MR JUSTICE RIMER |
| Judgment Date | 28 April 2006 |
| Neutral Citation | [2006] EWHC 909 (Ch) |
| Docket Number | Case No: HC01C04609 |
| Court | Chancery Division |
| Date | 28 April 2006 |
[2006] EWHC 909 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Rimer
Case No: HC01C04609
Mr William Corbett (the Claimant) in person
Mr Daniel Hochberg (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 4 and 5 October 2005, 17 and 18 January 2006
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.
Introduction
The claimant is William Corbett, who has appeared in person. He sues in his capacity as the administrator of the estate of the late Miss Nancie Tresawna. The defendant is Bond Pearce, a firm of solicitors, which was represented by Mr Hochberg. The claim is for damages for professional negligence. It arises against the following background.
Miss Tresawna made a will on 3 February 1989 ("the February will") under which Mr Corbett was a joint residuary beneficiary. She purportedly made a subsequent will dated 26 December 1989 (for reasons explained later, I will call this "the September will") which made different dispositions, including of her residuary estate. Bond Pearce acted for Miss Tresawna in relation to the preparation and execution of the September will. Following her death on 6 February 1991, Mr Corbett challenged that will in probate proceedings in the Chancery Division. The September will was upheld at first instance, but in January 1996 the Court of Appeal reversed that decision and pronounced in favour of the February will.
In the meantime, in September 1995, Mr Corbett had commenced the present claim against Bond Pearce. The writ, as amended in 1997, claims damages for the loss suffered by Miss Tresawna's estate as a result of Bond Pearce's negligence whilst acting for Miss Tresawna in relation to the preparation and execution of the September will. The primary head of claim was for damages to compensate the estate for the costs of the probate proceedings, which were ordered to be paid by the estate. The claim has had a complicated history. Liability has been admitted but the quantum of the recoverable loss (if any) has caused much dispute. This is my judgment on the damages the estate is entitled to recover.
The will dated 3 February 1989 ("the February will")
Mr Corbett is unmarried and has no children. He is a farmer He has a married sister, Mrs Arthur, who has two sons, James and Jonathan (as I will call them), who were both minors at all material times. Miss Tresawna was Mr Corbett's and Mrs Arthur's unmarried aunt. She lived at Myrtle Cottage, Grampound, Truro, Cornwall. On 3 February 1989, at the age of 79, she made the February will by which she provided, so far as material, as follows. She revoked her prior wills and appointed John Somerville, Glending Wight and John Foster (her solicitor, who had prepared the will) as her executors and trustees. She gave the following specific legacies: (i) a silver tea tray and a portrait of Henry Tresawna to Mr Corbett; (ii) the rest of her tea service to Rosemary Somerville; (iii) her painting of Botallack Mine to the Royal Institution of Cornwall; (iv) her car to Elsie Brew. She gave the following pecuniary legacies: (i) to Mr Somerville (a non-professional executor) a sum equal to the profit costs of handling her estate, (ii) £250 to Nicola Carlyon (her goddaughter); (iii) £250 to Probus Parish Church Council; (iv) £250 to Elsie Brew; (v) £500 to Margaret Welman.
Miss Tresawna dealt as follows with her land and residue. She devised Lamellyn Farm, Probus ("Lamellyn"), and her land at Truck, to Mrs Arthur (to whom Lamellyn was already let), subject to the gift bearing its own inheritance tax ("IHT"). She devised Tolcarne Merrock Farm, St Mawgan, Newquay ("Tolcarne") to Mr Corbett (to whom it was already let), also subject to IHT. She devised Myrtle Cottage, Grampound (the freehold property she lived in) to Mr Corbett and Mrs Arthur as tenants in common in equal shares. She also devised to them as tenants in common (subject to IHT) her seven-eighths share in the freehold properties in Probus known as the Probus Trust Properties (Mr Corbett owned the other eighth share). These properties comprised two cottages called Tippett's Cottage and Myrtle Cottage (not to be confused with Myrtle Cottage, Grampound). She gave her residuary estate to Mr Corbett and Mrs Arthur in equal shares. Clauses 15 to 19 contained administrative provisions and a professional charging clause.
The will dated 26 December 1989 ("the September will")
By July 1989 Miss Tresawna had decided to make lifetime gifts of Lamellyn to Mrs Arthur and of Tolcarne to Mr Corbett; and had also decided to change her testamentary dispositions. Upon the lifetime gifts being made, the two farms would fall out of her estate. Miss Tresawna wished to make a new will omitting any reference to them and incorporating the other proposed changes, the main one being as to the disposal of her residue. The solicitor whom she had previously instructed, Mr Foster, had ceased to practise and so she instructed Bond Pearce, the defendant firm, to advise her on the drafting, preparation and execution of her new will, which they did.
Mr Nicholson of Bond Pearce handled the matter. He produced a will which was ready for execution by Miss Tresawna in September 1989. The gifts of the two farms had not, however, yet been effected (that was being handled by Mr James of Bond Pearce) and Miss Tresawna did not want to execute the new will until they had been: she recognised that if she executed it immediately and promptly died, the two farms would form part of her residuary estate. Mr Nicholson's advice to her – the cause, so far, of nearly 15 years' litigation —was that she should leave the will undated and execute it on the basis that it would take effect when the two gifts were subsequently perfected.
Miss Tresawna accepted that advice and executed the will on about 29 September 1989. In the subsequent probate proceedings the court found that her intention was that the will should only take effect upon being subsequently dated following the perfection of the two gifts. The will itself said nothing to the effect that it was being executed on this conditional basis. The two gifts were later made on 25 December 1989, following which Mr Nicholson dated the will 26 December 1989. As it had been executed in the previous September, it has throughout the litigation been called "the September will".
Miss Tresawna provided as follows by the September will. She revoked her prior wills. She appointed John Newey (a surveyor, her land agent) and David Bennett (her accountant) as executors and trustees. She gave the following specific legacies free of IHT: (i) the remainder of her tea service to Rosemary Somerville; (ii) her Botallack Mine Painting to Mr Newey; (iii) her car to Elsie Brew. She gave the following pecuniary legacies free of IHT: (i) £250 to Nicola Carlyon; (ii) £500 to Molly Corbett (her sister); (iii) £500 to Elsie Brew.
Miss Tresawna disposed of her land and residue as follows. (i) She devised to Mrs Arthur her land at Truck and her seven-eighths share in Tippett's Cottage, Probus (including two back gardens, a store room with one back garden and a builder's yard); and (ii) she devised to Mr Corbett her seven-eighths interest in Myrtle Cottage, Probus with its gardens. The IHT attributable to those gifts was to be borne by residue. She left her residuary estate to James and Jonathan. Clause 7 contained administrative provisions and a professional charging clause.
The memorandum of wishes
Mr Corbett raised before me the question whether, in 1986, Miss Tresawna had made an effective memorandum of wishes as to the post-death disposition of her chattels. The memorandum was not signed by Miss Tresawna, let alone attested as a testamentary document, and so it did not take effect as a will. The February will revoked all prior testamentary dispositions and so would anyway have revoked any such disposition effected by the memorandum; and there is no question of the February will having incorporated it. I say no more about the memorandum than that (as Mr Corbett accepted) it was of no relevant effect and can be ignored.
The probate action
Miss Tresawna died on 6 February 1991. Her main assets included Myrtle Cottage, Grampound, the land at Truck, the two Probus cottages and a portfolio of investments. Her estate was valued for probate at £353,761 net.
Mr Corbett objected to probate of the September will being granted. He commenced an action in the Chancery Division on 5 June 1992 by which he sought proof in solemn form of the February will and challenged the validity of the September will. He did so on the basis that Miss Tresawna had no immediate testamentary intention when she executed it, his point being that it was fatal to its validity that she had executed it on the conditional basis that it should only take effect once the lifetime gifts of the farms had been effected and the will dated.
The trial of the action occupied two days in March 1994 before Mr Eben Hamilton QC, sitting as a Deputy Judge of the Chancery Division. Mr Corbett was represented by counsel. So was Mr Newey, who sought to uphold the September will. Mr Bennett was not represented, he having agreed to act as the court directed. Mrs Arthur, James and Jonathan were together represented by counsel and also argued in favour of the September will. Three other beneficiaries joined as defendants were not represented and took no part.
By his decision dated 5 May 1994 ( Corbett v. Newey and Others [1994] Ch 388), Mr Hamilton held there was...
To continue reading
Request your trial
-
Corbett v Bond Pearce
...which had been given by Blackburne J on 14 February 2005. Rimer J, in a careful judgment which he handed down on 28 April 2006 [2006] EWHC 909 (Ch), analysed the conceptual problems which arise from the order of 13 July 2004 — see in particular paragraphs 58 to 62 of that judgment. Neverthe......
- James Marsh v Ministry of Justice The Chief Constable of Surrey Police (Non-Party)