Gledhill and Another v Arnold

JurisdictionEngland & Wales
CourtChancery Division
JudgeMrs Justice Proudman
Judgment Date24 June 2015
Neutral Citation[2015] EWHC 2939 (Ch)
Date24 June 2015
Docket NumberCase No: HC/2014/000580

[2015] EWHC 2939 (CH)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

7 Rolls Building

Fetter Lane

London, EC4A 1NL

Before:

Mrs Justice Proudman

Case No: HC/2014/000580

Between:
Gledhill and Another
Claimant
and
Arnold
Defendant

Mr James Brightwell (instructed by Wood Sherwood Solicitors) appeared on behalf of the Claimant

Mr Rodney Stuart-Smith (instructed by Wood Sherwood Solicitors) appeared on behalf of the Defendant

Mrs Justice Proudman
1

This is a claim for the construction and/or rectification of the last will ("The will") dated 19 August 2011 of Eric Arnold ("The deceased") who died on 21 December 2012. Probate of the will was granted out of the District Probate Registry at Newcastle-upon-Tyne on 11 April 2014.

2

The claimants are the proving executors. The first claimant ("Christopher") is the defendant's son and the second claimant is his wife. The attorneys of the defendant are Christopher and his brother. The defendant has had dementia since at least 2012 when she was diagnosed with it. I have letters from the brothers in which they say that they are aware of the claim and they do not object to it, but wish to take no part in the proceedings.

3

The defendant was the deceased's sister-in-law. She married the deceased's brother in about 1981. The deceased and his brother lived and farmed together and when the brother died in 1998 she continued to look after him. They moved from the farm in about 2000 and bought a house near Wayside, East Cottingwith and then in about 2008 they sold that property and moved to 1 Sherbuttgate Road, Pocklington, which they owned as tenants in common in equal shares. The defendant continues to live there and the claimants, I assume, look after her.

4

By clause 3 of the Will, the deceased gave his share of 1 Sherbuttgate Road (which he called "the House Fund") to his Trustees upon trust to:

"…sell call in and convert the same into money with power to postpone the sale calling in or conversion of the whole or any part thereof or to retain the same or any part thereof in its actual state of investment at the time of my, death for as long as they shall think proper without being responsible for any loss and to hold the same upon the following trusts

My Trustees shall pay the income of the House Fund (including income due but unpaid at my death) unto the said Hazel Brenda Arnold [the defendant] during her life.

No part of the House Fund shall be sold until such time as my Trustees are in their absolute discretion satisfied that she no longer resides or needs to reside in the said house.

Until the same shall be sold my Trustees shall allow [the defendant] to reside in the said house… rent free so long as [the defendant] shall desire she paying the rates and other outgoings and keeping the house in tenantable repair and insured against fire and all other risks…

At the request of [the defendant] my Trustees shall sell the said house… and apply the whole or part of the proceeds in the purchase of another house…

After the death of [the defendant] my Trustees shall hold the House Fund… upon the trusts hereinafter declared in regard to my Residuary Estate"

5

Residue is given by clause 5 to the defendant absolutely, but if she does not survive the deceased then there is a gift over to such of her children, John, Christopher and Michael and also the second claimant as should be living at his death and if more than one, in equal shares absolutely, with a substitutionary provision.

6

The Will appears to make perfect sense, but it is instructive to look at the deceased's previous wills and, in particular, his will made in 2006 ("The 2006 Will"). By clause 3 of the 2006 Will there was the same provision as to the House Fund, but after the death of the defendant, the 2006 Will contained a provision for the trustees to hold the House Fund for such of her children, John, Christopher and Michael as should be living at her death and if more than one in equal shares absolutely. Residue is still given to the defendant absolutely.

7

The successors to the solicitors who drafted the Will gave the claimants their file containing a copy of the 2006 Will. The 2006 Will is annotated in pen and is headed on the first page: "2006 Version to Amend." The provision for the House Fund to pass to Christopher and his brothers was struck through.

8

By a letter dated 13 July 2011 written both to the deceased and the defendant the solicitors who drafted the Will confirmed that the deceased's residuary estate was to be divided equally between Christopher and his brothers with substitutionary provisions for the issue of Christopher and Michael, but not John. Then by letter dated 19 July 2011, the solicitors confirmed that the second claimant was to be added to the class of residuary beneficiaries, although that letter contains a mistake that residue would pass on the death of the survivor of the deceased and the defendant. I refer again to these letters later.

9

Mr Martin Short, a partner at the original firm of solicitors and the draftsman of the 2006 Will and the Will, has provided a witness statement setting out the background and explaining how his firm drafted wills. He includes all the wills drafted by his former firm (in 1985, 1993, 1996, 2001, 2006 and 2011) for the deceased and the defendant, although he was only involved in the drafting of the 2006 Will and the Will. He confirms that the notes on the 2006 Will were made by him on instructions from the deceased and the defendant to update their wills and he explains in detail how this came about.

10

He says (at [21] to [22]):

"The words for such of her children, [etc]" are struck out.

In the executed version of the 2011 Will, the words: "upon the trust hereinafter declared with regard to my residuary estate" were added to the end of clause 3."

11

He then says (at [23]) that he wrote to the deceased and the defendant on 13 July 2011 enclosing the...

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