Ian Parsonage (acting as personal representative in the estate of Beryl Parsonage (Deceased)) v Duncan Parsonage
| Jurisdiction | England & Wales |
| Judge | Simon Barker QC |
| Judgment Date | 10 September 2019 |
| Neutral Citation | [2019] EWHC 2362 (Ch) |
| Court | Chancery Division |
| Docket Number | D30BM013 |
| Date | 10 September 2019 |
In the Estate of Beryl Parsonage (Deceased)
[2019] EWHC 2362 (Ch)
HHJ Simon Barker
D30BM013
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Birmingham Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham
B4 6DS
Representation
Ms Claire van Overdijk instructed by Talbots Law Limited for the Claimant
Mr Richard Dew instructed by Samuels Solicitors for the First Defendant
The Second, Third and Fourth Defendants did not contest the claim
Hearing dates: 28–30 November and 3–4 December 2018, 21 January 2019
I direct that pursuant to CPR 39APD6 paragraph 6.1 no tape recording shall be made of this judgment and that copies of this version shall stand as authentic and be treated as the official transcript
Introduction
Mrs Beryl Parsonage (‘BP’) was born on 13.10.29 and died on 18.11.15, aged 86 years. She had four children, Sian, the third defendant (‘D3’), Alison, the fourth defendant (‘D4’), Ian, the claimant (‘C1’), and Duncan, the first defendant (‘D1’). Tomas Parsonage, the second defendant (‘D2’), who is D1's son, is one of BP's eight grandchildren. All of BP's grandchildren are now adults. BP's husband, Keith Parsonage (‘KP’), pre-deceased her on 9.11.95.
The litigation concerns, first, the validity of BP's last will, which was executed on 9.1.11 (‘the 2011 Will’). C1 seeks an order for a decree of probate of the 2011 Will in solemn form and, consequentially, an order removing the caveat (No.79367) entered by D1. The validity of the 2011 Will is challenged by D1 on the grounds that BP lacked capacity (1) to know and understand the nature and effect of the 2011 Will, (2) to know and understand the size of her estate, and/or (3) to know and appreciate the claims to which she ought to give effect. The underlying factual basis of the challenge is the severity or extent of BP's dementia and the circumstances in which the 2011 Will was prepared and executed.
The 2011 Will is very short. After revoking all earlier wills, appointing C1 and D3 as trustees and executors, and providing for payment of debts, executorship expenses and IHT, the estate falls into residue to be divided equally between BP's four children, with a per stirpes provision in the event, which did not happen, of any child(ren) predeceasing BP. The 2011 Will was drafted by an experienced solicitor, Jonathan Mott (‘JM’) of Southwell Mott, a two partner firm comprising JM and his wife and having its office in Lichfield. JM took BP's instructions over the telephone on 6.1.11 and sent a draft will under cover of a letter dated 7.1.11 reminding BP of the terms of her then current will 1 and its rationale as he understood it from BP's previous instructions. The 2011 Will was executed as drafted by JM in the presence of two long-standing acquaintances and neighbours of BP, Kathleen Wigley (‘KW’) and Patrick Gavin (‘PG’) as witnesses. D4 was also present.
In the event that the Court declines to make the order sought by C1, there is a further issue for decision, namely whether the earlier will executed by BP on 4.2.10 (‘the 2010
Will’) is invalid for want of knowledge and approval. The 2010 Will was drafted by and executed in the presence of JM. The essence of C1's challenge to the 2010 Will is that its terms are such, and are so contrary to BP's known and expressed wishes and intentions, that BP must have executed it under a misapprehension as to the lifetime benefits, if any, conferred on her children other than D1 by KP and herself. The source of the misapprehension is alleged to be D1, assisted or supported by D3, but there is no allegation of undue influenceThe 2010 Will is quite different in its provisions. After revoking all earlier wills, D1 and D3 are appointed as executors. BP devises her freehold home, which had been the family home, at 9 Norton Hall Lane, Norton Canes, Cannock, Staffordshire (‘9NHL’) to D1 and bequeaths £35K to each of her four children, with a per stirpes provision. Then, after payment of debts, executorship expenses and IHT on all property passing under the 2010 Will, the residue is divided into two shares one of which is bequeathed to D2 and the other to D3.
BP had made at least one will before the 2010 Will. This will had been executed in or before 2000. Documentary evidence, a letter dated 22.12.00 from Gardner, Iliff & Dowding, solicitors in Cannock whom BP and KP had instructed then and previously when requiring legal assistance confirmed that this will was held for safe keeping following a then recent visit by BP. D3's unchallenged evidence was that BP wanted to destroy this will because it had been made at a time when there was a rift with C1 and he had been excluded. D3 said she had accompanied BP to collect this will before BP first instructed JM.
This may explain, at least in part, the timing of BP's original instructions to JM in September 2009. BP appears to have been reflecting on the provisions made by her then last will and no longer considered them to be her true dispositive wishes in relation to her estate. It is common ground that BP did destroy this will. BP's visit to JM in September 2009 led JM to prepare a draft will which provided for an equal division of BP's net estate between her four children, with a per stirpes provision. The will drafted by JM in September 2009 and forwarded to BP under cover of a letter dated 30.9.09 is in identical terms to those of the 2011 Will except that D1 and D3 were the proposed executors in the 2009 draft whereas C1 and D3 are nominated as executors in the 2011 Will. JM's covering letter noted that BP was to look out the details of 9NHL and other land jointly owned by BP “with her sister-in-law and brother-in-law” 2. Between then and 4.2.10 BP's instructions changed to what became the 2010 Will.
It is common ground that, in the event that neither the 2011 Will nor the 2010 Will is valid, BP died intestate. In the events that have happened, and as it so happens, the result of an intestacy will be the same as that provided for by the 2011 Will.
For many years prior to BP's admission to a care home on 25.3.11 she lived at 9NHL. Norton Canes is a village in the Cannock Chase district of Staffordshire. D4 lived next door, at 7 Norton Hall Lane (‘7NHL’), for more than 30 years, and C1 and D3 were also long time near neighbours. D1 also lived in Norton Canes. Neil Dunford (‘ND’), a cousin of BP's children and a witness for D1, was BP's other neighbour, at 11 Norton Hall Lane, for more than 30 years.
The written evidence makes reference to the family as close, however it also refers to family disharmony. C1 fell out with KP when C1 left the family forestry business in the early 1990s to obtain better paid employment; this may explain BP's earlier will which is said to have excluded C1. Prior to BP's death, C1 and D1 appear to have got on well enough with each other and to have trusted each other. D4 had a poor relationship with both C1 and D1 for many years prior to BP's death. Both D4 and D3 were close to and, to varying extents, assisted BP as she came increasingly to need it, and provided company for BP. In oral evidence D3 described BP as her best friend. This was certainly true until BP became forgetful. The evidence points to BP then relying on D4 more than D3; to D3 finding it increasingly difficult to cope with BP's diagnosis and symptoms of dementia, in other words, coping with the loss of her best friend; and, to D4 assuming and discharging the role of primary carer for BP.
BP's four children are now divided over the 2011 Will and the 2010 Will. They are in two camps and the sibling relationship between C1 and D1 has collapsed into one of distrust. D4 has sided with C1; she participated in the trial as a witness for C1, not as an active or represented party. D3 has sided with D1; she participated in the trial as a witness for D1, not as an active or represented party.
It is common ground that BP's estate is not insubstantial. There is limited evidence as to its actual value before me. Under cover of a letter dated 7.1. 16 D1's then solicitors
sent C1's solicitors a schedule of BP's assets and liabilities said to be based on information D1 had diligently collated as BP's attorney under a joint lasting power of attorney (‘the LPA’) and supported by underlying documentation. BP's estate was said to comprise 9NHL valued at £225K with additional unvalued land at the rear, savings and investments worth in excess of £163K, and liabilities, including IHT but excluding funeral expenses, said to be less than £3K. In round terms a net estate worth in the order of £400K. BP's savings and investments were derived in part from the sale to Persimmon Homes in January 2005 of a plot of land at the rear of 5, 9 and 11 Norton Hall Lane 3 owned by BP and two relatives on the Dunford side of the family for development (“the Nearby Land”)There is also an overage entitlement, secured by a legal mortgage, in relation to the Nearby Land. The minimum amount of the overage is £400K and BP's entitlement is a half-share. In round terms, BP's estate's share of the overage entitlement is now expected to generate not less than £200K and possibly in the order of £500K. Thus, BP's overall gross estate is likely to be worth in the region of £600K to £900K. Apart from funeral expenses the only significant liability will be IHT. Thus, the overage agreement may cause BP's estate to increase by 50% or potentially more than double in value. There was little evidence at trial about the overage agreement. C1's understanding was that outline planning permission for the Nearby Land, which he...
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