Harding v R & C Commissioners

JurisdictionEngland & Wales
JudgeMr Justice Lewison
Judgment Date12 January 2007
Neutral Citation[2007] EWHC 3 (Ch)
Docket NumberCase No: HC 06C01564
CourtChancery Division
Date12 January 2007
Between
John William Barratt Gibbs
Claimant
and
(1) Joy Winsome Harding
(2) James Alexander Harding
(3) Lloyd George Wariah Harding
(4) Orell Harding-Mielke
(5) Hm Attorney-General
Defendants

[2007] EWHC 3 (Ch)

Before

Mr Justice Lewison

In the Estate of Winsome Joy Harding Deceased (Otherwise Known as Sister Joseph Harding)

Case No: HC 06C01564

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Hearing dates: 19 December 2006

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.

The Honourable Mr. Justice Lewison

Mr Justice Lewison

Introduction

2

Background

2

The possibilities

3

Absolute gift to Diocese of Westminster

3

Trust for the benefit of the CCC

4

Gift to the Diocese of Westminster on charitable trusts

4

As on an intestacy

8

Introduction

1

As she lay dying in St Bartholomew's hospital, Sister Joseph Harding made a will. It was written out for her in manuscript and she duly executed it on 25 March 2003. It said:

“I Sister Joseph Harding (Winsome Joy Harding) being of sound mind and aware of what I am doing, wish to revoke my last will and testimony made previous to todays date.

I am not satisfied with certain aspects of the contents of that said will which are contrary to my express wishes.

If I should die in the meantime before making another will it is my wish that everything I possess be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney, Haringey, Islington and Tower Hamlet.”

2

The question is whether the last paragraph of the will created a valid testamentary gift and, if so, on what terms.

Background

3

Sister Joseph was born in Liberia and brought up in the West Indies. She entered a convent in the USA as a novice but was never finally professed. It seems she took private vows. In the 1970s Sister Joseph and Father Robson became involved in running the Caribbean Community Centre (“CCC”) which was designed to provide a spiritual and community centre for the Caribbean people in North London. It operated from premises at 416 Seven Sisters Road Manor House London N4. The premises were provided free of charge by the Roman Catholic Diocese of Westminster. Working with the CCC was Sister Joseph's main lifetime work.

4

In 1981 Father Robson and Sister Joseph set up the Father Love Trust. At that time Father Robson and Sister Joseph owned a property known as 7 Brownswood Road in Stoke Newington which was rented to London University students; and the rents from which were donated to the Father Love Trust which in turn provided financial support for the CCC. Father Robson died in April 2000 at which time Sister Joseph had been diagnosed with cancer. Under his will he left his estate to Sister Joseph. Thereafter Sister Joseph had discussions with the Diocese with a view to giving them properties and passing over the running of the Father Love Trust.

5

On 4 November 2002 Sister Joseph made a will. It was professionally drawn. In that will she made legacies to certain family members; and left the residue of her estate to the Westminster Roman Catholic Diocesan Trust and other Trust funds administered by Westminster Roman Catholic Diocesan Trustees. The residue would have formed the bulk of her estate, which is valued at close on £870,000. It was that will to which she referred in her manuscript will of 25 March 2003.

The possibilities

6

The various possibilities canvassed by the claim form are that Sister Joseph's estate is held:

i) on trust for the Roman Catholic Diocese of Westminster absolutely;

ii) by the Roman Catholic Diocese of Westminster on charitable trusts;

iii) by the Roman Catholic Diocese of Westminster on trust for the Caribbean Community Centre;

iv) as on intestacy.

7

The argument in favour of the first and third of these possibilities was advanced by Ms Penelope Reed, who appears on behalf of the Financial Secretary for the Roman Catholic Diocese of Westminster. He is the administrator of the estate. While Ms Reed fairly put the arguments so that they should be before the court, she rightly stressed that the administrator's own position was neutral. The argument in favour of the second possibility was advanced by Mr Will Henderson, appearing on behalf of the Attorney General. The argument in favour of the fourth possibility was advanced by Mr Stephen Schaw Miller, appearing on behalf of Sister Joseph's niece and nephews, who would take in the event of an intestacy.

Absolute gift to Diocese of Westminster

8

It is common ground that the reference in the will to the “Diocese of Westminster” is a reference to the Roman Catholic Diocese of Westminster. The first step in the argument in favour of the interpretation that the will confers an absolute gift on the Roman Catholic Diocese of Westminster is that that the words “it is my wish” govern the manner in which the Diocese is to hold the property. In other words the will should be construed as meaning:—

“I give everything I possess to the Diocese of Westminster and it is my wish that they should hold it on trust for the black community of Hackney, Haringey, Islington and Tower Hamlets…”

9

The second step is that the words “it is my wish” should be construed as precatory words and as not imposing a trust. Ms Reed referred me to the decision of Hart J in Harrison v Gibson [2006] 1 WLR 1212 in which the judge said:

“The mere fact that the testator has used the words “in trust” is not in itself inconsistent with an intention on his part that his wife should be the absolute beneficial owner.”

10

The effect of those words is a question of construction of the will as a whole. I cannot place quite as much weight on that dictum as Ms Reed for two reasons. First, the distinction that Hart J seems to have had in mind was that between “the “trust” which a layman might think results from the appointment of executors” on the one hand, and a limited gift on the other. Second, Hart J in fact decided that the words “in trust” in the will he was considering were incompatible with an absolute gift.

11

I do not consider that either of the two steps in this argument is correct. So far as the first step is concerned, it requires a re-ordering of the words that Sister Joseph actually used. The effect of the re-ordering is to downgrade the force of the phrase “in trust” which immediately follows the identification of the recipient of the gift. Second, there is nothing in the remainder of the will which displaces the ordinary meaning of that phrase.

12

I therefore reject the first possibility.

Trust for the benefit of the CCC

13

As everyone agreed, the main difficulty with construing the will as creating a trust in favour of the CCC is that it is not what the will says. Sister Joseph was well acquainted with the CCC and if she had wished the CCC (and the CCC alone) to benefit from her will, she would surely have said so. Moreover it is not at all clear on the evidence what kind of entity the CCC is. It appears that it has some form of trust deed, although the terms of the deed are not in evidence. It is not a registered charity. If it is a non-charitable unincorporated association, there are difficulties in concluding that a gift either to the members of the association (whether absolutely or subject to the terms of any rules of the association) was intended.

14

I reject this possibility.

Gift to the Diocese of Westminster on charitable trusts

15

It is common ground that a trust for the benefit of a fluctuating body of individuals, such as the inhabitants of a locality, can only take effect as a charitable trust, if it has effect at all: Attorney General v Webster (1875) LR 20 Eq 483. It is also common ground that a private trust for such a large class as the black community in four London Boroughs would be so large as to make a private trust unworkable, and hence void: McPhail v Doulton [1971] AC 424; R v District Auditor No 3 Audit District of West Yorkshire MCC ex p West Yorkshire MCC [1986] RVR 24.

16

The principles applicable in order to determine whether a gift such as the one I am considering creates a valid charitable gift are, I think, as follows:

i) The court leans in favour of making a testator's testamentary dispositions effective if possible within the limitations and in accordance with the principles of law: Re Smith [1932] Ch 153, 158;

ii) A gift to the inhabitants of a locality, without specifying a particular purpose for which the gift is to be applied, is a valid charitable gift: Re Smith (“my country England”);

iii) The same principle applies to a gift to a particular class of inhabitants within a locality: Mitford v Reynolds (1842) 1 Ph 185 (native inhabitants of Dacca); Goodman v Mayor of Saltash (1882) 7 App Cas 633 (freemen of the borough of Saltash); Re...

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