Damian Lines (as administrator of the Estate of Mrs NE Brock, deceased) v Maureen Wilcox
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] EWHC 1451 (Ch) |
| Docket Number | Case No: E30BS276 |
| Court | Chancery Division |
| Date | 10 June 2019 |
[2019] EWHC 1451 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: E30BS276
Oliver Wooding (instructed by Rubin Lewis O'Brien) for the Claimant
Gareth Thomas (instructed by Everett Tomlin Lloyd & Pratt) for the First and Second
Defendants The third to fifth defendants made no submissions
Decision on paper after written submissions
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
This is my judgment on an issue (which I have called “the threshold issue”) which arises in relation to an application for a Beddoe order in relation to prospective litigation by the claimant against the first and second defendants. The claimant is the administrator of the estate of the late Mrs Nancy Elizabeth Brock, who died on 28 November 2014, leaving a ‘homemade’ will, hand-written on a printed form, and dated 22 April 2005. That will appointed the first defendant as executrix. Under the terms of the will, the first, third fourth and fifth defendants, who are the deceased's four adult children, are to share equally in “all the money”. The second defendant is married to the first defendant.
It appears from the terms of the will that at the time she made it in 2005 the deceased had agreed to sell the house solely owned by her at 6 Mildfield Estate, Pontypool, to the first and second defendants for the sum of £100,000. That house was her home, and represented a considerable part of her then assets. It also appears that some three months later she transferred the house to the first and second defendants, by a form TR1 dated 18 July 2005, for nil consideration. Also at about that time, the deceased moved to live in a care home. As I have said, the deceased died in 2014.
A question thereafter arose as to whether the deceased had capacity to make the transfer of the house in 2005, or whether (if she did) it was procured by undue influence. The value of the house appears to be comfortably in excess of the value of the residuary estate. Because of the actual or potential dispute between the first and second defendants on the one hand and the other defendants on the other about the propriety of the 2005 transfer, the first defendant did not in fact prove the will. By agreement the claimant, an independent solicitor, on 11 September 2015 was appointed administrator of the estate with the will annexed.
It appears that the claimant has assumed that the phrase “all the money” in the will means ‘residuary estate’. For present purposes, I do not need to decide if this is correct. But I note that the phrase “all the money” immediately follows a reference to the price of £100,000 to be paid for the house under the agreement with the first and second defendants, whereas immediately following the gift of “all the money” there is a statement that the first defendant will dispose of “all the rest of my belongings”.
Procedure
Having taken counsel's advice, and concerned that he might be criticised by one or more of the will beneficiaries whatever action he took or did not take, the claimant now seeks a Beddoe order, authorising him, in his capacity as administrator of the estate, to issue a claim against the first and second defendants to set aside the transfer of July 2005 to them. Originally this proposed claim was based both on lack of capacity and on undue influence, but the former head of claim is no longer to be pursued. (I emphasise that no substantive claim has yet been issued.) The claim form under CPR Part 8 seeking Beddoe relief was issued in the Bristol District Registry on 21 February 2018, supported by a witness statement made by the claimant together with exhibits. The original of the witness statement is not on the court file, and the only copy I have seen is not signed or dated. Nevertheless, I proceed on the basis that the copy is accurate.
The Beddoe claim was served on all five defendants thereafter. Newbold, solicitors then acting for the first and second defendants, acknowledged service on 22 March 2018, stating that their clients did not intend to contest the ( Beddoe) claim. Slater and Gordon, acting for the third and fourth defendants, acknowledged service on 27 March 2018, also stating that their clients did not intend to contest the claim. The fifth defendant was served on 8 March 2018, but so far as I am aware no acknowledgement of service has been filed by her. (She appears to have made a witness statement dated 19 May 2017, suggesting that there was substance in the allegation of undue influence, but, since these Beddoe proceedings were issued only in February 2018, and no substantive claim has yet been issued, I am not sure what significance this has.)
On 12 December 2018 the first and second defendants served notice on other parties of change of solicitors to Everett Tomlin Lloyd and Pratt. The change was not the result of any dissatisfaction with the first firm instructed, but was apparently made necessary by the accidental service on those solicitors of privileged documents.
The hearing of 17 December 2018
For some reason, the matter was not listed once the first four defendants had acknowledged service. But eventually it was listed for directions. There was a hearing before me on 17 December 2018, when counsel for the claimant (not being the counsel who had advised the claimant on the proposed claim) appeared. None of the defendants appeared or was represented at that hearing. The solicitors for the third and fourth defendants had written to the court on 14 December, expressly consenting to the Beddoe order. The solicitors for the first and second defendants had written to the court on 14 and 17 December 2018. The terms of their emails do not indicate any objection to the order sought in the Beddoe proceedings.
At the hearing, however, I discussed with counsel for the claimant a question which appeared not so far to have been considered by anyone. This was whether this was an appropriate case for a Beddoe order at all, since all those interested in the estate (the four children of the deceased) were adult, and the litigation about the lifetime transfer to the first and second defendants could perfectly properly be carried on between them as substantive parties, with the claimant joined as a nominal party so that he was bound. In this connection I mentioned the decision of the Court of Appeal in Re Evans deceased [1986] 1 WLR 101. Understandably, however, counsel had not come prepared to deal with this question or this authority, and none of the other parties was present or represented.
As a result, I adjourned the hearing and gave directions for the claimant to file and serve written submissions on this question (the “threshold issue”), with written submissions in answer (if so advised) to be filed and served by any of the defendants, and then any written submissions in reply might be filed and served by the claimant. The court would then consider whether the matter should be dealt with at a hearing or on paper. Written submissions were indeed filed and served (in January 2019) on behalf of the claimant, and then subsequently (at the beginning of February 2019) on behalf of the first and second defendants. The submissions of the first and second defendants, prepared by counsel instructed on their behalf, made clear that they had now changed their position from the indication given in the acknowledgements of service filed on their behalf by their former solicitors in March 2018, and now opposed the grant of Beddoe relief. No submissions were filed or served by the claimant in reply, nor any other submissions on behalf of the other defendants.
In a letter to the court dated 6 March 2019, the claimant's solicitors referred to the submissions filed and served on behalf of the first and second defendants, and stated that their counsel did not consider that any further submissions needed to be filed, and that he was happy for the matter to be dealt with on paper rather than being listed for hearing. A letter sent by the first and second defendants' solicitors to the court on 13 March 2019 referred to the letter dated 6 March 2019 and to the written submissions filed and served. It went on to say that, if I were minded to grant Beddoe relief to the claimant then they would prefer the case to be listed and dealt with at an oral hearing, but that if I were minded to refuse the claimant's application then they had no objection to the matter being dealt with on paper.
I am sorry to say that I then overlooked the fact that the submissions were now complete and ready for me to consider. But eventually the parties asked the court staff what had happened, and they drew the matter to my attention. I have now considered the submissions, and this is my decision and the reasons for it. I am sorry for the delay in providing them.
The Beddoe jurisdiction
It is convenient to begin by considering the Beddoe jurisdiction, and then the decision of the Court of Appeal in Re Evans deceased [1986] 1 WLR 101, to which I referred at the hearing, before turning to the rival submissions made to me.
The Beddoe jurisdiction arises out of the special rules for costs affecting trustees and personal representatives. These are largely contained nowadays in CPR rule 46.3 and PD 46.1, and in relevant caselaw. They are well known and set out in a number of recent cases, of which Blades v...
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Table of Cases
...[2010] 1 FLR 631, [2009] WTLR 1175, [2009] Fam Law 808 185 xx A Practitioner’s Guide to Probate Disputes Lines v Wilcox and Others [2019] EWHC 1451 (Ch), [2019] WTLR 927, [2019] Costs LR 1215 198 Little, Re; Foster v Cooper [1960] 1 WLR 495, [1960] 1 All ER 387, 104 Sol Jo 369, PD&A 28 Lons......
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Claims Against, and Removal of, Personal Representatives
...appropriate were set out in Alsop Wilkinson v Neary [1996] 1 WLR 1220 at 1224–1225 and further discussed in Lines v Wilcox and Others [2019] EWHC 1451 (Ch) at [16]–[21]. These include: (a) trust disputes; (b) a beneficiary dispute; and (c) third party disputes where the trustees/personal re......