Dudley Heslop v Mona Heslop
| Jurisdiction | England & Wales |
| Judge | Master Dray |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 2957 (Ch) |
| Docket Number | Claim Nos: PT-2021-000287 & PT-2021-000928 |
| Court | Chancery Division |
[2021] EWHC 2957 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
DEPUTY Master Dray
Claim Nos: PT-2021-000287 & PT-2021-000928
Alexander Hill-Smith (instructed via direct access) for the Claimant
The First and Second Defendants in person
Hearing date: 28 October 2021
Approved Judgment
Pearline Albertha Hylton (“the Deceased”) was born in Jamaica on 25 December 1927. She migrated to England in or around 1948. She was domiciled in England until around 2015 when she went to live in Scotland, initially with one of her daughters, the Second Defendant who is, and has been since about 2014, domiciled in Scotland.
The Deceased died in a care home in Scotland on 4 December 2018. She had 4 children: the Claimant, Dudley Heslop (born 1954 and domiciled in England); the First Defendant, Mona Heslop (born 1955, also domiciled in England); the Second Defendant, Jennifer Seales (born 1969, domiciled in Scotland, as above); Monica Aitcheson (born 1963 and not a party to this litigation).
By her last will dated 13 March 2012 the Deceased appointed the Claimant as executor. She also purportedly devised and bequeathed her estate and interest in Lot 168, Coral Gardens, Saint James, Jamaica (registered at Volume 1388 Folio 102) (“the Property”) between her 4 children (each receiving 22%) and one of her grandchildren (Chloe Hylton, daughter of the Second Defendant, receiving 12%). She made like provision as regards her residuary estate.
I say ‘purportedly’ because there is a dispute (outlined below) as to whether the Deceased actually had any estate or interest in the Property which she could pass by will. Separately, insofar as a testamentary gift was effectively made of the Property, the gift to the Claimant will have been void by virtue of section 15 of the Wills Act 1837 (because the Claimant was a witness to the will) and to that extent a partial intestacy will have arisen.
The Claimant obtained a grant of probate on 17 July 2019. The Deceased's estate has, however, yet to be administered and distributed. This is because of a dispute in relation to the beneficial ownership of the Property, outlined below.
Pursuant to a transfer (number 1575933, registered on 29 December 2008 at the Jamaican Land Registry) the Property was acquired by the Deceased and the Second Defendant as joint tenants for a recorded consideration of £135,500 (pounds sterling).
The purchase appears to have come about because when visiting Jamaica in or around October 2008 the Deceased saw the Property, liked it, and decided to buy it. The Property was purchased using Clark, Robb & Co, attorneys based in Montego Bay, Jamaica.
The Deceased and her family have never lived at the Property. It has apparently been rented out. As indicated above, none of the parties to the litigation is domiciled in Jamaica.
Since the death of the Deceased the legal title to the Property is held by the Second Defendant alone.
What is more, it is the Second Defendant's case that the Property was held by the Deceased and her as beneficial joint tenants and that she now owns the Property exclusively by right of survivorship following the death of her mother. In the alternative, she maintains that, if the 2012 transfers to which I refer below effectively severed the joint tenancy in equity, she owns 50% of the Property. In the latter scenario she will also be entitled to inherit her share of whatever equitable interest the Deceased retained in the Property at the date of her death.
Conversely, the Claimant contends, firstly, that the Property was held by the Deceased and the Second Defendant for the Deceased alone beneficially. His case is that this was pursuant to a purchase money resulting trust which he says arose on the acquisition of the Property in 2008 because, he claims, the Deceased alone funded the purchase. His case is disputed by the Second Defendant who says that she paid £100,000 towards to the purchase.
Further or alternatively, the Claimant's case is that, even if the equitable interest in the Property was initially held beneficially by both the Deceased and the Second Defendant as joint tenants: (a) by dint of a transfer by way of gift executed in England on 3 April 2012 the beneficial joint tenancy was severed and 43% of his mother's share in the Property passed to him (with a further 43% to the First Defendant); (b) pursuant to a further transfer by way of gift executed on 26 April 2012 (and, unlike the other transfer, registered at the Jamaican Land Registry on 6 November 2012) he received a further 6% (as did the First Defendant).
Consequently, the Claimant's position is that the vast majority of the equity in the Property falls outside the Deceased's estate (and rests with him and the First Defendant). On this basis he says that only a very small part of the value of the Property falls to be distributed pursuant to the Deceased's will/intestacy. The Claimant rejects the notion that the Second Defendant: (a) has any independent entitlement to the Property (independent, that is, of the will/intestacy); (b) thus has anything other than a 22% share of the very limited residual part of the equity in the Property which he asserts the Deceased held at the date of her death.
It can thus be seen that there is a fundamental dispute regarding the beneficial ownership of the Property. This dispute needs to be resolved in order to allow the estate to be distributed.
Against the above background the Claimant has instituted the two sets of proceedings with which I am now concerned:
(1) First, on 25 June 2020 the Claimant issued proceedings in the county court at Central London under claim no. G01CL579 (which was later transferred to the Chancery List by Order of HHJ Monty QC dated 7 August 2020 and given claim no. G10CL331). By an order dated 3 August 2021 (sealed 4 August 2021) Master Clark directed that this claim be transferred to the High Court, to be case managed and heard with the below claim. This claim (so transferred) now bears claim no. PT-2021-000928.
(2) Secondly, on 1 April 2021 the Claimant issued proceedings in the High Court, claim no. PT-2021-000287.
Both claims are brought against the same Defendants and it is apparent from the nature of the claims and the relief sought (outlined below), and was so confirmed by the Claimant at the hearing, that the First Defendant is joined simply to be bound by the result of the proceedings and that the real contest is, as foreshadowed above, between the Claimant (and First Defendant, whose interests are effectively aligned with the Claimant) on the one hand and the Second Defendant on the other hand.
As regards the two claims with which I am directly concerned:
(1) In G01CL579 (now PT-2021-000928) the Claimant (as an alleged beneficiary of the alleged trust) alleges that the Property is held on trust by the Second Defendant. He seeks the following relief:
a. The appointment of himself and the First Defendant as trustees in place of the Second Defendant.
b. Orders requiring the Second Defendant to produce an account of rental income received since 2012, and copies of tenancy agreements.
(3) In PT-2021-000287 the Claimant (as executor of the estate of the Deceased) seeks:
a. A declaration as to the Second Defendant's beneficial interest in the Property, in particular a declaration that she has no beneficial interest therein (by reason of the asserted resulting trust).
b. An order for sale.
c. An order that the Second Defendant sign a power of attorney empowering the Claimant to sell the Property.
It may be noted that the cumulative relief sought is not, or at least may not be, all internally consistent. For instance, if the Claimant (and the First Defendant) were appointed trustees, it would not be necessary for the Claimant to be given a power of attorney to effect a sale (that being predicated on the Second Defendant retaining ownership of the Property). However, nothing turns on this for present purposes.
Incidentally, it seems that the Claimant has in fact brought multiple – no fewer than 8 – sets of proceedings against the Second Defendant and/or the Deceased, at least some of which have related to the Property, including a claim as far back as 2010 (claim no. HC10C03654) which was discontinued in 2011. It is not my function in this judgment to determine whether the multiplicity of claims has any wider consequence, although (if this matter goes further) it is conceivable that, if any point is taken, consideration may need to be given to this. I merely record the history of the matter.
The overall essence of what is sought by the Claimant is clear. The primary relief claimed is the declaration concerning the Second's Defendant equitable interest to the Property, this being based on the fact that she is said to hold the Property on trust. The other heads of relief claimed are subsidiary to that and are consequential on the existence and administration of the asserted trust.
The proceedings were served by the Claimant on the Second Defendant in Scotland without the permission of the court, the Claimant relying on CPR 6.32 in this regard and filing a notice in form N510 in accordance with CPR 6.34. I record that (as noted in the order of Master Clark) the Second Defendant (who, as noted below, has filed a witness statement and participated at the hearing) does not dispute service and accepts that...
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