Ian Paul McLean v Brett Reginald McLean

JurisdictionEngland & Wales
JudgeSir Anthony Mann
Judgment Date20 July 2023
Neutral Citation[2023] EWHC 1863 (Ch)
CourtChancery Division
Docket NumberCase No: CH-2022-000163
Between:
(1) Ian Paul McLean
(2) Sean Andrew Frederick McLean
(3) Lorraine Pomeroy
Claimants/Appellants
and
Brett Reginald McLean
Defendant/Respondent

[2023] EWHC 1863 (Ch)

Before:

Sir Anthony Mann

Case No: CH-2022-000163

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

CHANCERY DIVISION

ON APPEAL FROM DECISION OF RECORDER ROBERTSON

AT THE CENTRAL LONDON COUNTY COURT ON 26TH JULY 2022

LOWER COURT CLAIM NUMBER H10CL283

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Michael Horton KC and Guy Holland (instructed by Taylor Rose MW) for the Claimants/Appellants

Brett Reginald McLean in person as the Respondent

Hearing date: Tuesday, 16 th May 2023

Approved Judgment

This judgment was handed down remotely at 10.00am on Wednesday 20 th July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives

Sir Anthony Mann Sir Anthony Mann

Introduction

1

Where parties agree to leave true mutual wills, their agreement is capable of giving rise to trusts affecting their property which prevent the second to die from effectively resiling from the agreement, via the mechanism of the imposition of an implied trust (or perhaps a constructive trust). That that is capable of being the case has been established in law for some considerable time. Such a state of affairs was alleged in the present case, but Recorder Robertson held that the necessary agreement did not exist. That decision is challenged in this appeal. The present appeal also raises the question of whether the doctrine of mutual wills can be extended to a situation in which there is no clear mutual agreement like a contract but where there are circumstances capable of giving rise to a proprietary estoppel which has the same effect at the end of the day. At the trial of this action Recorder Robinson was minded to say that such an estoppel could not give rise to mutual will-type trusts as a matter of principle, and in any event he held the facts did not justify such a result in this case. Those aspects of his decision are also challenged on this appeal, all with permission given by Bacon J.

2

For obvious reasons of clarity, in this judgment I will refer to the various family members by their first names, without intending any disrespect.

The testamentary background

3

On 23rd June 2017 husband and wife Reginald and Maureen McLean executed mirror wills which left their respective estates to each other if surviving, and the residue to their four children in equal shares. On 16th March 2019 Reginald died and Maureen took his estate. On 16th August 2019 Maureen executed a new will leaving her entire estate to her son Brett, the defendant in this litigation, and died shortly afterwards on 27th August 2019. She thereby cut out the other three children (actually her stepchildren — they were children of Reginald by a former marriage). Those other three children (the claimants in this action) claim that the 2017 wills were mutual wills by which Maureen's estate came to be held in trust for all four children equally under the mutual wills doctrine. Brett contests that and seeks to take under the 2019 will. Whether there were effective mutual wills is the subject of this appeal.

4

At the trial Brett challenged Reginald's 2017 will on the grounds of lack of capacity, and both wills on the grounds of undue influence. Those two challenges failed on the facts before the judge below. There is a suggestion, but only a suggestion, that Brett seeks to challenge at least capacity in his respondent's notice, but it is not a clear and reasoned challenge and none was mounted when Brett addressed me. I should also add that the findings in those areas are classic findings of primary fact which are normally unchallengeable and there is nothing in the case which suggests that Brett can mount the difficult challenge which would be necessary to sustain an appeal in this case. It is therefore unnecessary to deal further with those parts of the judgment below.

The facts as found by the judgment

5

The relevant facts are within a fairly small compass and can be set out as follows, extracted from the careful judgment below.

6

On 12th August 2013 Maureen and Reginald each established a discretionary family trust. The beneficiaries of Maureen's trust were Reginald and the four children. A memorandum of wishes of Maureen dated 11th September 2013, signed by Maureen, provided that the first priority should be the support of Reginald; that their house should be given to Brett unless it had been sold; and if it had been sold the proceeds should be split between the four children. The trustees were asked to treat her three children (the claimants in this action) “with broadly equal shares”. No findings were made about Reginald's trust. On 30th October 2013 Reginald and Maureen each signed wills, which were mirror wills, leaving their respective estates to their respective family discretionary trusts.

7

On 2nd June 2017 Maureen and Reginald attended the offices of Streeter Marshall, solicitors, and met Mr Alistair McKie, an solicitor experienced in dealing with wills and probate. There are no particular findings about any actual events leading up to that visit, but the firm was not one which was previously known to the McLeans though it was one used by Reginald's son Paul. That meeting ended up with both McLeans making the mirror wills referred to above. Mr Mckie's attendance note (recording a meeting of 48 minutes) is important both for what it does and what it does not contain, so like the judge below I will have to set out most of it (though I will set out a little more). It reads (so far as material) as follows:

“Mr McLean is the uncle of Paul Robinson, a well-established client of mine.… [Age and parentage of children referred to]

Clients provided a copy of Mrs Mclean's current Will, which is a mirror of Mr Mclean's dated 30 October 2013. In the Will, Mrs Maclean has left her entire estate (except her personal belongings] to the [discretionary trust].… I explained to the client what this means and the ramifications. I drew the client's attention to the Memorandum of Wishes dated 11 September 2013, by which Mrs Mclean let her trustees know her wishes.

Client said that her Memorandum of Wishes no longer reflects her wishes as she does not want her property at Beau Rivage to be given to Brett.

Client explained that Brett does not get on particularly well with his half siblings. I explained that, as things currently stand, it is absolutely crucial that all the trustees get on well and agree. If there is any disagreement between the trustees, then the Trust cannot be run properly.

It was clear to me that clients need to rewrite their wills. It is not enough for the clients to rewrite their Memoranda of Wishes, because clients do not trust the trustees to act together properly.

Clients said that they would like to appoint each other as their sole executor and trustee and for the surviving spouse to receive everything on the first spouse's death.

On the second spouse's death, clients would like the residuary estate to be divided equally between the 4 children.

I raised the issue that if Mr McLean were to pass away first, then there was no guarantee that Mrs McLean would not change her will and leave her entire estate to Brett. Mr Mclean explained that he trusts his wife implicitly. They have been married for 45 years and there is no way that she would do this.

Clients confirmed that they would like a provision inserted providing for their grandchildren, should any of their children predecease. …”

8

Mirror wills incorporating those instructions were executed on 23rd June 2017 with Mr McKie as one of the witnesses.

9

The Recorder found that that attendance note was accurate so far as it went, but found that it omitted one or two matters which he nonetheless considered Mr McKie had accurately recollected. One was that Maureen responded to her husband's remarks about her not changing her will. In a Larke v Nugus statement Mr McKie was asked whether Maureen responded to her husband's recorded remark about Maureen not changing her will, to which he responded:

“Whilst I do not remember exactly what Mrs McLean said in response, I clearly recall that her response was similar to her husband's in that she would not change her Will and disinherit her stepchildren.”

10

The Recorder seems to have approached this evidence with care, and the paragraphs immediately following his recitation of this statement by Mr McKie do not contain a finding that it happened, but it seems he accepted it because the last sentence of paragraph 110 (see below) would clearly indicate that he did.

11

In response to a question as to whether the making of mutual wills was discussed, Mr McKie in his Larke v Nugus statement, said:

“I do not recall advising the clients specifically about making mutual Wills, but if I did, I do not generally recommend that clients make mutual Wills. In this case the clients had been married for 45 years and trusted each other implicitly.

12

The Recorder also had before him a “Joint Letter” written by Reginald and Maureen in April 2018 to the children (but not apparently received by Brett), which he found to be a genuine letter despite a challenge by Brett that it was a forgery. It said:

“Dear Sean, Lorraine, Ian and Brett,

Recognising that our health is inevitably deteriorating we needed to think through what happens next when one of us survives the other, and then when we both move into the next world what will happen to our collective belongings. You'll all be aware that Seaside Road is something of a desirable location these days.

Therefore, we met with a professional legal firm almost a year ago and left a will that represents our wishes.

With our health as it is now we wouldn't feel confident to change anything but...

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