Hoff and Others v Atherton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Gibson,Lord Justice Chadwick,Mr. Justice Lindsay |
| Judgment Date | 19 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1554 |
| Docket Number | Case No: A3/2004/0506 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2004 |
[2004] EWCA Civ 1554
Lord Justice Peter Gibson
Lord Justice Chadwick and
Mr. Justice Lindsay
Case No: A3/2004/0506
HC0202180
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr. Nicholas Warren Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs. Elspeth Talbot Rice (instructed by Messrs Harcus Sinclair of London) for the Appellants
Miss Elizabeth Weaver (instructed by Messrs Fladgate Fielder of London W1) for the Respondent
This is an appeal by the Claimants, Francis Hoff ("Francis"), Maxine Beagan ("Maxine") and Gloria Wiechulla ("Gloria"), from the order made on 6 February 2004 by Mr. Nicholas Warren Q.C., sitting as a deputy judge of the High Court. By his order the judge pronounced for the force and validity of the Will dated 22 June 1994 ("the 1994 Will") of Mrs. Ingeborg Luise Erika Krol who died on 29 March 2001. That relief had been sought by the Defendant, Mrs. Pauline Mary Atherton, the residuary legatee under the 1994 Will, by counterclaim. The judge pronounced against the force and validity of the Will dated 23 March 1987 ("the 1987 Will") with two codicils thereto dated respectively 12 February 1988 and 1 August 1989. Relief to that effect had been sought by the Claimants, the residuary legatees under the 1987 Will, in their claim against Mrs. Atherton. The judge refused permission to appeal, but permission was granted by Jacob L.J. on paper.
The facts
The judge has set out the facts found by him with commendable care and in great detail. I will attempt a summary of the more important facts.
Mrs. Krol was born on 30 September 1911 in Germany. She came to this country in 1934. In that year she married Mr. Bertie Le Vaye. He died in 1960. She remarried in 1964. Her second husband, Mr. Stan Krol, died in 1985. She had no children and no surviving relatives at the time of the 1994 Will. She lived at 7 Lowther Road in Barnes from about the late 1930s. From her first husband she inherited a portfolio of small shops in Sutton, some with residential accommodation above. She rented out this property. By the time of her death she owned assets worth about £1 million, this after having transferred a Treasury deposit account of some £500,000 at her bank into the joint names of herself and Mrs. Atherton in February 1993 and after assigning to Mrs. Atherton in March 1994 the benefit of a policy which produced on Mrs. Krol's death some £22,000.
Francis was the godson of Mrs. Krol. His mother, Mrs. Margaret Hoff, was an old friend of Mrs. Krol. She had come to England in 1938 from Vienna but had returned to Austria in 1973. Mrs. Hoff saw Mrs. Krol when visiting London in 1975. In 1987 Mrs. Krol visited Francis and his wife, Doris Hoff, in Munich and went to stay with Mrs. Hoff in Austria for a few days. Mrs. Hoff last saw Mrs. Krol in the autumn of 1994. Francis, from 1981 to the early 1990s, saw Mrs. Krol several times a year on his business trips to London. He and his wife Doris attended Mrs. Krol's 80 th birthday party in November 1991. He saw Mrs. Krol in February 1993 and, with his wife, in September 1993 as well as in October or November 1993. He too last saw Mrs. Krol in the autumn of 1994.
Maxine is the sister of Francis. She moved abroad in 1991. The judge was to find her evidence of no help one way or the other in making an assessment of Mrs. Krol's capacity at any time.
Gloria is the daughter of Luzie Wiechulla, an old friend of Mrs. Krol. Both Gloria and her mother gave short witness statements but, living in Germany, they did not attend for cross-examination and the judge in effect obtained no assistance from their evidence.
Mrs. Krol made four Wills between 1973 and 1994. In all of them she included Francis as a beneficiary. In the first Will made on 9 October 1973, she gave a £2,000 pecuniary legacy to the National Heart and Chest Hospital and one other legacy and subject thereto she gave the residue to Mr. Krol and, if he predeceased her, to Francis. By a codicil made on 9 February 1981, she gave the residue, if Mr. Krol predeceased her, to Francis and Maxine in equal shares. In her second will made on 27 September 1982, subject to legacies to the same two legatees, she gave the residue to Mr. Krol and, if he predeceased her, to Francis, Maxine and Gloria in equal shares. After Mr. Krol's death in 1985, Mrs. Krol made the 1987 Will. Therein she named Mr. John Rawstron, who had acted as her solicitor since 1970, if not earlier, and who had prepared all her testamentary instruments, as an executor together with Mr. Campbell, a partner of his. The dispositive provisions of the 1987 Will were the same as those of the second will save that a pecuniary legacy of £5,000 to Mr. Rawstron was added. By a first codicil, made on 12 February 1988, to the 1987 Will, Mrs. Krol gave a specific legacy of books to Julian and Martin Gore.
Mrs. Atherton was a neighbour of Mrs. Krol. Following Mr. Krol's death Mrs. Atherton and Mrs. Krol became very close friends. They saw each other virtually every day. They went on holiday together. Mrs. Atherton became more and more involved in Mrs. Krol's financial affairs. By a second codicil made on 1 August 1989 to the 1987 Will Mrs. Krol gave a pecuniary legacy of £3,000 to Mrs. Atherton.
In June 1992 Mr. Rawstron advised Mrs. Krol in notably strong terms that she should sign an enduring power of attorney. He pointed out that both he and Mrs. Atherton were willing to act as Mrs. Krol's attorney. On 24 June 1992 Mrs. Krol appointed Mrs. Atherton as her attorney.
On 15 January 1993 Mr. Rawstron had a difficult meeting with Mrs. Krol. He was engaged on her behalf in a rent review of one of her properties which was let and sought to persuade her to leave him or her surveyor to exercise his own judgment in the matter. As he himself acknowledged, he became too insistent because of the frustration he felt, and he over-reacted. She became emotional and tried to express her dissatisfaction towards some aspect of his attitude to her affairs, but he was unable to ascertain from her in any way why and in what respect she was dissatisfied. She made clear that his conduct distressed her and that she wanted him to leave, which he did. That was the last time he saw or spoke to Mrs. Krol.
On 11 February 1993 Mrs. Krol transferred the Treasury deposit account into the joint names of herself and Mrs. Atherton. On 14 July 1993 Mrs. Krol's current account with her bank was put into the joint names of herself and Mrs. Atherton.
On 17 May 1994 Mr. Rawstron received a typed letter signed by Mrs. Krol, containing instructions for a new Will. According to Mrs. Atherton, Mrs. Krol had over the years often discussed changing the Will in favour of Mrs. Atherton and the subject was raised again in April 1994. Mrs. Atherton says that she neither encouraged nor discouraged Mrs. Krol, who knew precisely what she wanted to do. The letter was in the following terms:
"I want to change my Will. I want to leave £50,000 to Francis, £25,000 to Maxine, £25,000 to Gloria, £5,000 to you and £2,000 to Asthma Research. Everything else is to go to Mary [Atherton] because she has looked after me ever since Stan [Krol] died. If Mary dies first then it is to go to her two children, Andrew and Rosemary, in equal shares. I want to appoint the same executors as before.
Would you please prepare a new Will for me to sign."
Mr. Rawstron, in his witness statement, says that he phoned Mrs. Atherton for additional information, that he questioned her about Mrs. Krol's capacity and whether she really wanted to leave him £5,000 in view of the breakdown of their relationship and that Mrs. Atherton stated that she had had a long discussion with Mrs. Krol who fully understood the implications of her letter.
On 19 May 1994 Mr. Rawstron acknowledged receipt of the letter on 17 May and said he was preparing the new document. On 24 May he wrote to Mrs. Atherton asking for help on three points. The first was that he needed to give Mrs. Krol an idea of the size of the residue. He thought that the value of the estate could not be much less than £1 million which meant that the residue was likely to be in the order of £550,000. He asked if Mrs. Atherton disagreed. He said that he proposed letting Mrs. Krol have a letter with the draft Will, giving the approximate figures. The second was whether Mrs. Krol was intending to omit the gift to the Gores of books. The third was a suggestion that the substitutionary gift to Mrs. Atherton's children, if she did not survive Mrs. Krol, might contain a substitution provision, should a child also not survive Mrs. Krol, in favour of that child's own children.
Mrs. Atherton replied on 31 May, providing details of the assets and liabilities of Mrs. Krol, with values as estimated by Mrs. Atherton. The assets included Mrs. Krol's house valued at £200,000, her shops valued at £600,000 and £445,000 at the bank in three separate accounts of which £420,000 was in the joint account of Mrs. Atherton and Mrs. Krol, and that account, Mrs. Atherton said, was intended to pass by survivorship and not under the Will. She said that Mrs. Krol had no debts but that there would be an income tax liability of at least £30,000 on her death. Mrs. Atherton described Mrs. Krol as "fit and active for her age" and leading a "stress-free life". She continued: "She is well aware of what she owns and expects that, when she dies, she will leave a lot of...
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