Karen Pegler v Timothy Bruce McDonald
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 29 September 2022 |
| Neutral Citation | [2022] EWHC 2405 (Ch) |
| Docket Number | Case No: PT-2021-BRS-000049 |
| Court | Chancery Division |
In the Matter of the Estate of Clive McDonald (Deceased)
And in the Matter of Section 116 of the Senior Courts Act 1981
And Section 50 of the Administration of Justice Act 1985
[2022] EWHC 2405 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2021-BRS-000049
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Louise Corfield, instructed by Ashfords LLP), for the Claimants
The First Defendant in person
The Second Defendant was not present or represented
Hearing dates: 14 September 2022
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.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on Thursday 29 September 2022.
Introduction
This is my judgment on the trial of a claim under CPR Part 8, by claim form issued on 13 May 2021, to remove or pass over the original defendants as executors of the will of the late Clive McDonald. In fact, the original second defendant to this claim consented to be removed, and the present second defendant was substituted for her by an order of DJ Watkins (as he then was) on 1 October 2021. This trial has concerned the remaining part of the claim, against the first defendant only. The present second defendant has not been concerned in that remaining part, and so, for convenience I refer in the remainder of this judgment to the first defendant as simply “the defendant”. The trial was conducted remotely by me by MS Teams on 14 September 2022. As I explain later, there was no oral evidence, and the entirety of the hearing consisted of submissions.
I have already given two interlocutory judgments in this matter. The first was handed down on 1 August 2022 (neutral citation [2022] EWHC 2069 (Ch)), concerning applications by the defendant for an adjournment of the trial and for a Beddoe order. The second was handed down on 6 September 2022 (neutral citation [2022] EWHC 2288 (Ch)), concerning applications by the defendant for summary dismissal of the claim against him, for an order that I recuse myself from hearing this case and an adjustment to the start time of the trial hearing. All these applications were dismissed. As a result of the dismissal of the first two, which were recorded as totally without merit, coupled with the dismissal and recording as totally without merit of two earlier applications made to other judges in this litigation, I made an extended civil restraint order against the defendant.
Background
The purpose of referring to my two interlocutory judgments is mainly that they give some detailed background to this case, although they also play a minor part later in the story. This means that I can outline the essential facts more quickly than I might otherwise need to. In brief, the family circumstances were as follows. The late Clive Angus McDonald died on 30 September 2020, in Bognor Regis, aged 85 years. His wife had predeceased him, I understand in 2011, and he had no children of his own, but he was survived by his only brother (the defendant), now aged 86, his brother's two children, his stepson Philip Samuels, and his late wife's four nephews and nieces (the claimants). The defendant and his children live in Canada. Three of the claimants and Mr Samuels live in England, but one of the claimants lives in Australia. I understand that the value of the estate is less than £750,000.
Under a will dated 24 September 2020, the testator appointed as his executors (1) the defendant, (2) his stepson, and (3) not more than two of the partners in the firm of Warwick & Barker, solicitors who had drafted his will. So far as (3) is concerned, the partner proposing to act was Gill Collins, the original second defendant, who had drafted the will. The will of 24 September 2020 gave pecuniary legacies to some 18 beneficiaries, amounting to about £180,000. These included one of £50,000 to the defendant. The residue was given as to 50% to the defendant's two children, and as to the other 50% to the claimants and Philip Samuels.
An earlier will, dated 2 March 2017, appointed as executors (1) the defendant, (2) the first claimant and (3) the partners in the firm of solicitors who drafted the will. It gave pecuniary legacies to some 14 beneficiaries, amounting to some £288,000, including one of £100,000 to the defendant. It also conferred the right of occupation in the testator's home at the time of his death on a lady called Jacqueline Delauney (the testator's partner at the time of his death) until her death, which I understand occurred in August 2021, or certain other stated events. The residue was given as before, that is 50% to the defendant's two children and as to the other 50% the claimants and Philip Samuels.
In an email from the defendant to Ms Collins dated 12 October 2020, he referred to the will of 24 September 2020 as an “invalid … deathbed will” and as a “highly suspect pop-up will”. In an undated letter of about the same time to Ms Collins, the defendant said:
“I can only conclude that the deathbed September 24 [will] is, in fact, fraudulent. A con, a scam.
Accordingly, I will contest this will in court and much more if you do not do the following … by the close of your business on Thursday the 15 th:
• By any lawful method available, annul this bogus will which is CONTRARY TO CLIVE'S WISHES, and ‘endorse’ my alternative much less toxic ‘version’ as presented in the last column of my chart. …”
On 28 January 2021, the defendant caused a caveat to be placed on the will of 24 September 2020, in order to prevent a grant in relation to it. There is a reference in the correspondence to its still being in force in January 2022, and the defendant told me in a comment on the draft of this judgment that it is still there. On 16 February 2021 Mr Samuels renounced his appointment as executor, and on 23 February 2021 he disclaimed all his beneficial interests under the will.
Procedure
As I have said, on 1 October 2021, DJ Watkins made an order substituting Hugh James Trust Corporation for the original second defendant, and giving directions to trial. (This was subsequently listed for Friday 11 February 2022.) That order also provided that, if the defendant intended to challenge the validity of the will of 24 September 2020, he was to issue his claim forthwith, and if he did not do so by 4 PM on 1 November 2021, he would be debarred from doing so without the permission of the court. The defendant did not in fact issue such a claim by that date, or indeed at any time since, and accordingly the position is he may only bring such a claim if he first applied for and obtained the permission of the court. So far as I am aware, he has made no application for such permission to date.
On 29 October 2021 the (first) defendant applied for permission to appeal against the order of 1 October 2021 in relation to the removal of the original second defendant and the substitution of Hugh James Trust Corporation. On 10 December 2021, the defendant applied for a stay of execution of the order of 1 October 2021, pending his appeal. It seems that DJ Taylor considered that he had granted such a stay on 4 February 2022. On 3 February 2022, the first defendant applied for a Beddoe order. On 4 February 2022, DJ Taylor of his own motion vacated the hearing listed for 11 February 2022, on the basis of the outstanding application for permission to appeal. On 21 February DJ Taylor said that the Beddoe application could not be dealt with until the appeal had been dealt with, but this was only communicated to the defendant by letter of 17 March.
On 22 March 2022 the first defendant issued a further claim (claim number PT-2022-BRS-000043), seeking relief in relation to the estate of the deceased. However, this was struck out by DJ Taylor on 13 April 2022 as incomprehensible and procedurally defective, and as disclosing no reasonable grounds for bringing a claim. The defendant's application for permission to appeal against the order of 1 October 2021 was finally listed for 24 June 2022. Zacaroli J, after hearing the first defendant, refused that application, and recorded that it had been totally without merit. He further directed that the claim be relisted for trial “on the first available date after 22 July 2022”. It was listed for 14 September 2022 before me, and, as I have said, I conducted it on that day.
Evidence
The evidence before me, in accordance with CPR rule 8.5, was in the form of witness statements which had been filed by the parties. These statements were as follows:
(1) witness statements from the first claimant (dated 13 May 2021) and the original second defendant, Gill Collins (dated 14 June 2021);
(2) four witness statements made by the first defendant, dated 6 June 2021, 24 June 2021, 10 August 2021, and 18 October 2021.
The witness statements exhibited a vast quantity of correspondence between the parties and others. There is also correspondence subsequent to the witness statements, which was in the hearing bundle before me. I do not set this out here, but I have looked at all of it, and in particular at the correspondence sent by the defendant to others, since I am considering whether he should continue to act as an executor, and that might inform me about his approach to relevant matters. I record here...
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...of the beneficiaries: Harris v Earwicker [2015] 1915 (Ch), [9]; Brookman v Potts [2021] EWHC 2861 (Ch), [36]; Pegler v McDonald [2022] EWHC 2405 (Ch), [18]–[19]. He also said that, although he referred in correspondence to the money which he alleged the claimant taken from Iris, he did thi......
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Karen Pegler v Timothy Bruce McDonald
...to remove the first defendant (whom I shall refer to simply as the defendant) as executor of the will of the late Clive McDonald: see [2022] EWHC 2405 (Ch). I held that the claim succeeded, and invited written submissions on consequential matters, including costs. I have received those sub......