Dudley Heslop v Mona Heslop
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 20 March 2023 |
| Neutral Citation | [2023] EWHC 544 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2021-000287 |
[2023] EWHC 544 (Ch)
Master Clark
Case No: PT-2021-000287
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Alexander Hill Smith (instructed on Direct Public Access) for the Claimant
The Second Defendant in person
Hearing dates: 4 July, 17 October, 3 November 2022 (followed by written closing submissions)
Approved Judgment
I direct that this approved judgment, sent to the parties by email at 10am on 20 March 2023, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.
This is my judgment following the trial of two Part 8 claims:
(1) PT-2021-000928 (“the CC claim”) – issued in the County Court at Central London and transferred to the Business and Property Courts by my order dated 3 August 2021;
(2) PT-2021-000927 (“the HC claim”) – issued in the High Court on 1 April 2021.
Parties and the claim
The parties are siblings, the children of Mrs Pearline Albertha Hylton (“Mrs Hylton”), who died in Scotland on 4 December 2018 aged 90. A fourth child, Monica Aitcheson, is not a party to the claim.
The claimant, Dudley Heslop, is the eldest child and the sole executor of Mrs Hylton's will dated 13 March 2012 (“the Will”). Probate was granted to him on 17 July 2019.
The first defendant, Mona Heslop, has never acknowledged service, although she has attended hearings, and been permitted to make comments.
The second defendant, Jennifer Seales, is resident and was served with the claim forms in Scotland, and accepts that she was validly served there.
For clarity and without intending any disrespect, I refer to the parties by their first names. Dudley and Mona are children of Mrs Hylton's first marriage, and Jennifer a child of her second marriage.
The claims concern the beneficial ownership of a house in Jamaica, 168 Armstrong Avenue, Coral Garden, St James (“the Property”). The Will provides for each of the 4 children to receive a 22% share of Mrs Hylton's share and interest in the Property, and for Chloe Hylton, Jennifer's daughter, to receive a 12% share. The Will is witnessed by Dudley, so that he is barred from taking under it: s.15, Wills Act 1837.
Dudley has conducted the claims in person, only instructing counsel to attend the hearings in the claim. Jennifer has acted in person throughout, and has attended hearings by remote video from her home in Scotland.
The trial was listed to be heard on 4 July 2022. However, when Dudley was called to give evidence, it became apparent that he had not served all of the trial bundle on Jennifer. The trial was therefore adjourned to 17 October 2022, when Dudley and Jennifer both gave oral evidence.
At the hearing on 17 October 2022, there was insufficient time for closing submissions, and the trial was adjourned to 3 November 2022. At that adjourned hearing, I adjourned it again on Jennifer's application by email, supported by a fit note from her GP. In order to limit the costs of Dudley caused by the adjournment, at his counsel's invitation, I directed that the parties file written submissions on 17 November (Dudley closing submissions), 15 December (Jennifer closing submissions) and 22 December 2022 (Dudley reply). Jennifer did not file any written submissions, though on 15 and 16 December 2022, she filed further documentary evidence (see paragraph 24 below).
On 26 January 2023, Jennifer filed further medical evidence showing that she suffers from several severe and debilitating conditions; and asking for an extension of time for her written submissions until 27 February 2023. In the event, she did not file any written submissions by that date; and on 7 March 2023 filed further documentary evidence.
The CC claim
In the CC claim, Dudley alleges:
(1) Mrs Hylton provided all of the purchase monies of £135,500 of the Property;
(2) Mrs Hylton asked her attorney to add Jennifer's name to the title and he proceeded to create a joint tenancy;
(3) Dudley and Mona became beneficiaries of the trust thereby created on 3 April 2012, when Mrs Hylton severed the joint tenancy, and granted them a share of her equity;
(4) Jennifer has failed to account for the rents of the Property since 3 April 2012.
The relief sought in that claim is an order appointing Dudley and Mona trustees of the trust, and requiring Jennifer to give an account of the rental income from the Property. I note that in this claim the joint tenancy is not challenged.
The HC claim
The HC claim substantially overlaps with the CC claim. In it, Dudley alleges that
(1) Mrs Hylton provided all of the purchase monies of £135,500 of the Property;
(2) Mrs Hylton asked her attorney to add Jennifer Seales to the title, creating a joint tenancy;
(3) The joint tenancy was mistakenly created because Mrs Hylton “failed to inform her attorney that she had four children”;
(4) When Mrs Hylton returned to her attorney to make a will, she was told that she could not make a will because she had created a joint tenancy so that the Property would pass to Jennifer when she died;
(5) In April 2012, Mrs Hylton severed the joint tenancy;
(6) Mrs Hylton signed transfers granting Dudley 46% and Mona 46% (presumably of her interest).
The relief sought includes an order declaring that Jennifer has no beneficial interest in the Property by virtue of not providing any of the purchase monies.
Jurisdiction
The location of the Property gave rise to a preliminary issue as to whether the English court had jurisdiction to determine the claims. This was determined in Dudley's favour by Deputy Master Dray on 18 November 2021.
Governing law
As to the governing law of the issues arising in this claim, the test is which system of law is the arrangement said to give rise to the resulting trust most closely connected: Lightning v Lightning Electrical Contractors 1998 WL 1044250 referred to at Dicey & Morris on Conflict of Laws, 15 th edn, commentary on rule 184, paragraph 29–085:
“In Lightning v Lightning Electrical Contractors Ltd, the question arose as to the law applicable to a presumed resulting trust. LEC purchased a property in Scotland, which it registered in its own name. Lightning, the managing director of LEC, claimed that he had provided the entire purchase price for the property and that it was accordingly held on resulting trust for him by LEC. Both Lightning and LEC were resident in England. A question arose as to whether the trust would be governed by English or Scottish law. The court ruled that English law was applicable as the relationship between the parties was based in England. It rejected the application of the lex situs. Millett L.J. commented that: “Such a rule would lead to bizarre results if, for example, A's instructions were to buy properties in more than one jurisdiction, for the consequences of the same arrangement might then be different in relation to the different properties acquired.”
Lightning was followed but distinguished in Martin v Secretary of State for Work & Pensions [2009] EWCA Civ 1289, [2010] W.T.L.R. 671. In Martin, the purchase monies used to acquire property in France were provided by someone who was resident in England. However, the primary motive behind putting the property into the name of the third party was to take advantage of the French laws of succession. It was held accordingly that the question of an implied trust was to be governed by French law, not English law. At paragraph 31, Mummery LJ stated the reason why French law applied: “The whole focus of the admitted common intentions of the parties was on provisions of French succession law.” No analogous factor is present here.
In neither Lightning nor Martin did the Court of Appeal find it necessary to decide whether the Recognition of Trust Act 1987 applies to a constructive or resulting trust: see Martin at [35]. This is because that the 1987 Act imports the same “closest connection” test to determine the choice of law: see Art 7 of the Schedule to the Act.
Finally, neither side asserted that Jamaican law applied or adduced any evidence as to Jamaican law. In these circumstances, the court will apply English law by default: see FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45, [2022] A.C. 995 at [113] – [115].
Disclosure
On 4 January 2022, Deputy Master Arkush ordered that Dudley and Jennifer give disclosure by filing and serving a List of Documents in Form N265, in respect of the following categories of documents in their possession or power:
(1) documents relating directly to the purchase of the Property by Mrs Hylton and Jennifer in 2008;
(2) documents relating to the source of the purchase monies for the purchase of the Property by Mrs Hylton and Jennifer in 2008, including all savings and bank accounts of Mrs Hylton for 2007 and 2008;
(3) documents relating to the entry into and registration of the transfers dated 3 April 2012 and 26 April 2012 in respect of the property;
(4) documents relating to the issue and outcome of all proceedings issued by Dudley against Mrs Hylton in her lifetime.
Dudley did not fully comply with these disclosure obligations, but Jennifer did not comply at all. Dudley did not apply to compel her to do so. This left the court in the unsatisfactory position of relevant documents not being before it. In particular, Jennifer has not disclosed:
(1) any bank or building society statements for her own accounts showing monies passing between her and Mrs Hylton;
(2) any correspondence (including emails) between her and Mrs Hylton relating to the source of the purchase monies.
At the hearing on 17 October 2022, Jennifer produced additional...
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