Lloyd Dorian Williams v Gerwyn Lloyd Williams

Hearing dates: 13 to 16 June 2022

Judgment Approved by the court

HHJ Jarman QC:

Introduction

Lloyd and Catherine Williams farmed at Cefn Coed, Neath, comprising some 144 acres, and adjoining accommodation land at Crythan, comprising about 50 acres, as one holding. Three of their four children are parties to this action, and are in dispute as to the ownership of the farms and the business carried on there since 1985 in the name of L Williams & Son (the partnership). I shall refer to the parents as Mr and Mrs Williams, and to their children by their given names, for ease of reference and with respect. The holding has been farmed primarily to breed beef cattle, and to grow grass, oats and vegetables.

Mrs Williams died on 31 October 2013 and left her estate to her husband. Mr Williams died on 6 June 2018 aged 97. The third defendants are the professional executors and administrators of his estate, which because of this dispute, has not yet been fully administered. They have filed a defence, saying that they will remain neutral in this action, but also that they would leave it to the other defendants to advance arguments in defence of the claim.

By his last will dated 1 October 2014, Mr Williams gave his son Dorian a choice. To obtain any interest under the will, Dorian had to do four things: to vest a new house he was building at Cefn Coed in his sole name, and the old farmhouse there in the joint names of Gerwyn and Susan. He also had to vest his interest in the remainder of Cefn Coed and in the partnership in himself and Gerwyn as tenants in common, and to take Gerwyn into partnership with him on the terms in a draft deed attached to the will.

Dorian has done none of those things, and so, subject to the executors discretion to extend time for these to be done, the default provisions of the will take effect. Mr Williams' interest in the two farmhouses at Cefn Coed are left to Gerwyn and Susan in equal shares. His interests in the remainder of Cefn Coed and in the partnership were left to Gerwyn. Since 1991, Crythan has been vested in the name of Susan, although it has continued to be farmed together with Cefn Coed.

Dorian claims that both Cefn Coed and Crythan are assets of the partnership which carried on the farming business there under a deed of partnership dated 1 April 1985 (the 1985 deed) between himself and his parents, and that as a result of their respective deaths, these assets now vest in him. Alternatively, he claims them on the basis of promises he says his parents made to him at the time that the farms were purchased and subsequently, that they and the business would belong to him after his parents' days. Each of these claims are denied by Gerwyn and Susan, but if these assets do vest in Dorian, Gerwyn counterclaims for an interest on the basis of promises he says his parents made to him.

Each of these three gave evidence, as did their elder sister Rhian. Unlike her siblings, she married at a young age and left the farm to set up her own home nearby, and although she remained close to the family, she did not thereafter carry out work on the farm.

The impression I gained from all of them was that Mr and Mrs Williams and their four children were close as a family and were all hardworking. In the main I did not get the impression that any of them came to court to give misleading evidence. There was not a great deal of factual dispute between them, apart from the mains issues, which were as to what work Dorian and Gerwyn carried out on the farms and what their parents said to each of them. Various inconsistencies were put in cross-examination, particularly to Dorian and Gerwyn, but in my judgment most of these were no more than to be expected, given that witnesses were trying to recall events over the last 40 years or more. I shall deal only with those which I consider to have a probative value.

Each side called other witnesses to support their case, but in the main these did not take matters very much further. Again, I shall deal with these only to the extent that they assist in the determination of the issues before me.

There is some contemporaneous documentation, but some has been lost, for example the purchase files in relation to the farms. The family and its individual members used the same firm of solicitors, T. Llewellyn Jones, and usually dealt with one of the partners, Sara Llewellyn Jones, who is also one of the administrators of the estate of Mr Williams. Accounts were prepared for the partnership, by an accountant, Kerry Tanner.

Before dealing with each of the issues, I shall set out the background to the dispute, which is largely uncontroversial. Where it is convenient to deal with controversial issues as part of the background, I shall do so.

Background

The children of Mr and Mrs Williams were born in the late 1950s and early 1960s over a period of six or seven years, in the order of Rhian, Gerwyn, Dorian, and Susan. They all left school in the 1970s and remained living and working on the farms for some years, except for Rhian, who as indicated left a little later to get married. Susan married much later. Gerwyn has not married and has no children. Dorian, has not married, but he has three children out of two relationships.

Mr Williams was originally a tenant of Cefn Coed. He attempted to purchase it in the late 1970s, but to his disappointment was outbid. In the early 1980s, the rent was increased from £100 each year to £1500, and a schedule of dilapidations was served and had to be attended to. Gerwyn was paid about £20 per month for working on the farm, but in about 1982, he took up a job subcontracting with a motorway construction company to earn more money. He carried on living at Cefn Coed and working on the farm at evenings and weekends, without pay. Dorian continued to work full time on the farm, and was then also paid about £20 per month, although this increased over the years.

Mrs Williams wrote up a cash book showing receipts and outgoings in respect of the farms. In 1984 Gerwyn paid his parents £5560, which was used to carry out drainage work on the farms to top up a grant which was paid. This sum was described in the cash book as a loan, but it has not been repaid.

Mr and Mrs Williams purchased Crythan as beneficial joint tenants on 25 May 1985 for £45,500. Mr Williams was then in his mid-sixties, and his wife was some 10 years his junior. The conveyance, drawn up by T. Llewellyn Jones, contains an express declaration that the land is conveyed to them to hold as beneficial joint tenants. Dorian in his evidence said that he was told by his mother at the time that it was done in this way to make it easier. However, it is not clear what was to be made easier for whom, and this vague phrase takes the matter no further.

Mr and Mrs Williams used their savings of £40,739 to make the purchase, but also asked their children to help with the shortfall. Rhian contributed £1,427, Dorian contributed £1000, and Susan contributed £900. Dorian also claims to have contributed a further £3,500, but cannot now find the bank statements to show this. He says he paid this from his savings. However, this was not referred to in his solicitors letter in March 2017 setting out his claims, and was not referred to until his particulars of claim was filed in February 2021. Given, the small amount of money he was being paid, in my judgment it is unlikely that he would have saved up this amount, and I am not satisfied that his recollection about this is accurate. It is accepted that he paid £1,000.

Dorian also asserts that the shortfall was made up of partnership monies. For the period April to June 1985, the cash book shows that sums of £4,550 and s£3582.34 were paid to T. Llewellyn Jones. It is likely that some of this was paid for costs and disbursements, but it is not clear just how much was so paid nor to what extent this could have been covered by drawings which Mr and Mrs Williams were entitled to make.

The 1985 deed is dated shortly before Crythan was purchased. It was witnessed by Susan. The recitals record that Mr Williams was farming on his own account, and that the capital shown in his accounts was his capital. It then records that the goods and chattels of the old business had been delivered to the three new partners “as part of the assets” of the new partnership. It contains a clause deeming that the partnership began on 1 April 1985. It provides that each partner had a third share of profits and losses. The partnership would continue in the event of the death or bankruptcy of a partner, and the leaving partner would have a fair value for their share. There was no provision for partners to retire. It also provides for partnership accounts to be prepared and that such accounts when signed would be “conclusive and final” as between the partners of the matters contained therein.

Dorian cannot recall when he signed it, but accepted in cross-examination that this may have been at a later time than the date it bears. He said his parents organised this, and that he obtained no advice about it. The income he received did not change when the deed was entered into.

Mr Pearce-Smith for...