Corbett v Newey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE MORRITT,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 26 January 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0126-5 |
| Docket Number | CHANF 94/0864/B |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 1996 |
IN THE ESTATE OF NANCIE ARMOREL TRESAWNA —DECEASED
[1996] EWCA Civ J0126-5
(Mr Eben Hamilton QC)
Before: Lord Justice Butler-Sloss Lord Justice Waite Lord Justice Morritt
CHANF 94/0864/B
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR Q IWI (Instructed by Messrs Nalder & Son, Camborne) appeared on behalf of the Plaintiff/Appellant
MR R BARLOW (Instructed by Messrs Bevan Ashford, Tiverton) appeared on behalf of the First Defendant/Respondent
MR P POWELL (Instructed by Messrs Osborne Clarke, Bristol) appeared on behalf of the Third and Seventh Defendants/Respondents
Friday, 26 January 1996
It is well established that a will may be executed with express conditional effect —that is to say with a condition stated on its face that the will is not to come into operation unless or until a particular contingency or condition has been satisfied. This appeal has involved consideration of a different question. Given the requirement that every will must be made with immediate testamentary intent ("animo testandi" in the traditional phrase) can a testator by words or conduct outside the terms of the will impose upon his execution of the document some direction or condition which will postpone or qualify its operation?
The testatrix, Miss Nancie Tresawna, was aged 79 in the year 1989, and possessed assets consisting of her home, Myrtle Cottage, Grampound in Cornwall, two farms called Tolcarne Marrock Farm at St Mawgan ("Tolcarne") and Lamellyn Farm at Probus ("Lamellyn"), a holding of land and property in the village of Probus, and a portfolio of quoted investments. The two farms were let to her nephew William (Tolcarne) and her niece Sarah (Lamellyn). William was unmarried and had no children. Sarah had two sons called James and Jonathan. On 3rd February 1989 Miss Tresawna executed a will ("the February will") under which Tolcarne and Lamellyn were bequeathed respectively to William and Sarah. Apart from small legacies, her remaining assets were devised and bequeathed to William and Sarah in equal shares.
During the course of that year she came to favour the idea, with assistance from her accountant Mr Bennett and surveyor Mr Newey, of making an inter vivos gift to William and Sarah of the farms in their respective occupations. At the same time she decided to change her will, both to take into account the effect of those proposed gifts, and to change the destination of residue —which, as she had by then decided, she wished to bequeath to her great-nephews James and Jonathan (who were then, and still are, minors).
Her regular solicitor had recently ceased to practice, and in regard to these proposed arrangements she consulted a new firm of solicitors (Bond Pearce), where the proposed gifts of land were dealt with by Mr James and the proposed new Will by Mr Nicholson. Miss Tresawna was an efficient and business-like person who, although lacking any legal or accountancy expertise, had a clear general grasp of the nature of the transactions she was proposing. She instructed Mr Nicholson that the new will should revoke the February will, should appoint Mr Newey and Mr Bennett her executors, should devise her land and property at Probus to Sarah and Myrtle Cottage to William, and should bequeath her residuary estate (subject to small legacies to others) to Jonathan and James. There would of course be no reference in the new will to Tolcarne and Lamellyn, because those farms would —so it was contemplated —have passed already to William and Sarah under the intended Deeds of Gift. Mr Nicholson obtained her approval of a draft will making those dispositions and prepared an engrossment for signature. This document ("the September will") began with words in which a space was left for the date, reading thus:
"THIS WILL dated 1989 is made by me NANCIE ARMOREL TRESAWNA of Myrtle Cottage Old Hill Grampound….."
and after making the dispositions already mentioned concluded with a common form clause for her signature in the presence of two witnesses.
The preparation of the deeds of gift for the farms proceeded more slowly than the drafting of the new will. The result was that by the time Mr Nicholson sent the engrossment of the September will to Miss Tresawna, on 8 September 1989, with instructions as to the formalities required for its due execution, the relevant Deeds of Gift were not yet ready to be executed. By 27 September 1989 it was becoming clear that the hoped-for arrangement, which had been to complete both the gifts and the will together at Michaelmas, would not be feasible. Miss Tresawna spoke by telephone that day to Mr Nicholson, who made two attendance notes. One related to the gifts and recorded that, because of difficulty in tracing the necessary documents of title, the deeds could not be executed for some little time yet. The other concerned the will, and reads as follows:
"She has the Will and will take it out to be signed shortly. However, she does not want to sign it until the Deeds of Gift are in place. She pointed out that if she signed the Will and dated it today and then died, the property which she was giving would actually pass as residue. Agreed she was sensible on this point and she will not date the will immediately as she does not wish it to take effect until the gifts are complete."
Within the next 48 hours Miss Tresawna made arrangements to execute the September will. It was duly signed and attested, but the space in the text for the date to be inserted was left blank. On 29 September she wrote to Mr Nicholson enclosing the executed engrossment of the September will bearing her signature and those of the attesting witnesses under cover of a letter which, after referring to matters affecting the Deeds of Gift, concluded with this postscript:
"Can you date my will when Sarah and William have finally and legally accepted the gifts of the farms?"
On 3 October Mr Nicholson replied, saying:
"As soon as the Deeds of Gift are completed I will complete your Will and confirm this to you by sending you a copy of course to keep at home".
In due course, the Deeds of Gift of the two farms were drawn up and executed by Miss Tresawna. They were dated 25 December
1989. On 29 December 1989 Mr Nicholson wrote to her saying:
"As you know, I have been sitting on your Will, undated, but I have now dated it 26th December so that it is complete and I hold the original".
He referred to a request she had made in November to be supplied with a copy of the Will, and enquired whether she wished to make any amendments to it. On 3 January 1990 Miss Tresawna replied:
"I note that you have now dated my Will. I cannot remember what alteration I had in mind in November. Anyway, I do not wish to make any amendments".
Miss Tresawna died just over a year later on 6 February 1991 without having made any further testamentary or inter vivos dispositions. Her residuary estate comprised the assets remaining in her hands after the deeds of gift had been completed —that is to say her home and the properties in Probus, plus her portfolio of investments. If the September will was valid, Myrtle Cottage and the Probus properties would pass respectively to William and Sarah, and her investments and any other residue would pass to James and Jonathan. If it was invalid, all her assets would pass under the February will (which on that footing would constitute Miss Tresawna's unrevoked last will) to William and Sarah in equal shares.
William challenged the validity of the September will, and brought these proceedings for a declaration that it was invalid for want of any testamentary intent on the part of the testatrix at the moment of execution. The action was heard By Mr Eben Hamilton QC (sitting as a deputy judge of the Chancery Division) on 16 and 17 March 1994. The representation of the parties was the same as it has been in this court. Mr Quintin Iwi appeared for William. Mr Barlow represented the executors of the September will with the support of Mr Powell, instructed on behalf of James and Jonathan, and also on behalf of their mother Sarah (who wishes to put their interests under the September will before her own as a residuary legatee under the February will).
In his judgment given on 5 May 1994 (and reported at [1994] Ch 388) the deputy judge ruled that the September will was valid and should be admitted to Probate. He did so on the basis that although Miss Tresawna had no animus testandi to make an unconditional will, she did possess the necessary animus to make a conditional will. He held, further, that the September will (although unconditional on its face) falls to be treated as a conditional will giving effect to that intention —and was to be admitted to probate as such —in the light of the evidence as to the circumstances of its execution, which is (he held) admissible not only to prove the animus of the testatrix but also to establish that the September will was a conditional will.
These holdings appear from the following two passages in his judgment. In one of them he was dealing with an argument by Mr Barlow that the September will should, if necessary, be given unconditional effect. He said (at page 398 G):
"I should say that Mr Barlow submitted that it was not essential to his case to show that Miss Tresawna's will should be regarded as conditional: all he had to do was to establish that the document in question was a will, and, if evidence could not be introduced to show it was conditional, it should take effect...
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