MacDonald and Another v Frost
| Jurisdiction | England & Wales |
| Judgment Date | 05 October 2009 |
| Neutral Citation | [2009] EWHC 2276 (Ch) |
| Docket Number | Case No: BM3 40093 |
| Court | Chancery Division |
| Date | 05 October 2009 |
[2009] EWHC 2276 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Geraldine Andrews QC (sitting as a Judge of the High Court)
Case No: BM3 40093
Barbara Rich (instructed by Blake Lapthorn Tarlo Lyons) for the Claimants
Clifford Darton (instructed by CMHT Commercial) for the Defendant
Hearing dates: 27 th, 28 th, 29 th April and 1 st May 2009
Miss Geraldine Andrews QC:
INTRODUCTION
This is a claim by Professor Averil Macdonald and Ms Deborah Bannigan, who are the daughters of the late Joseph Henry Frost, to an equitable interest in their late father's estate on the basis of an alleged proprietary estoppel. For convenience and simplicity, and without intending any disrespect, I shall follow the practice that is often adopted in cases of this nature of referring to the claimants (Averil and Deborah) their father (Joe) and other members of the family by their first names or by the names by which they were usually known.
Averil's and Deborah's claim is founded on what they say was a clear and unequivocal promise or assurance by their parents, Joe and his first wife Clara Eleanor Frost (Clare), that Joe and Clare would organize their affairs so that “whatever happened, the estate of the survivor of them” would pass to their daughters in equal shares. Their case is that in reliance on this assurance, which was first made in 1986 and which they say was repeated by Joe on a number of subsequent occasions in the years before his death, Averil and Deborah agreed to make payments of £100 per month to their parents (and to the surviving parent) as a contribution towards living expenses. There is no dispute that Averil and Deborah did make those regular fixed payments, without reference to the state of their own personal finances, until Joe passed away on 23 rd May 2006 at the age of 83. Averil set up a standing order to pay £25 per week directly into Joe's bank account. Deborah paid the council tax and utility bills, which together came to about £100 per month, as and when they fell due, until there came a point during the course of 2000 when she, too, set up a standing order, in her case a monthly standing order for £100 to be paid into Joe's bank account.
The reason why the matter has come before the Court is that Joe is said to have reneged on the promise. Clare Frost died in June 1995. On 4th November 2002 Joe remarried. At around the same time he made a Will leaving his estate to his new wife, Marion, if she survived him for more than 28 days. The Will provided that if Marion predeceased him or failed to survive for that period, Joe's estate would pass in equal shares to Joe's grandchildren and step-grandchildren: Averil and Deborah would receive nothing. On 31 st December 2004 Joe made his final Will, which was in identical terms to the 2002 Will save that Pandora, Deborah's younger child, who was born after the 2002 Will was made, was added as a substitutionary beneficiary. Again, Averil and Deborah were to receive nothing.
There is no question before the Court as to the validity of that Will and the evidence suggests that, though he was physically frail, Joe remained mentally alert to the end. Indeed, as I shall go on to explain, there appears to be little doubt that, at around the time of his remarriage, Joe had made up his mind that he was not going to leave any part of his estate to Averil or Deborah even if Marion predeceased him, and that remained his intention up to the date of his death, some 3 1/2 years later. The main issue that I have to decide is whether Joe's estate was bound by a proprietary estoppel precluding him from disposing of the estate in the manner in which he wished.
As one might expect, that estate chiefly comprises the house in which Joe and Marion lived, 3 Harborough Drive, Aldridge (“the House”). Aldridge is a small town on the outskirts of Birmingham, known to its residents as “the village”. Joe was born in Aldridge and, apart from his military service during the Second World War, spent his life there. The House was built on land acquired by Joe and Clare in 1970, opposite a property then known as 44 Birmingham Road, Aldridge, where the couple were running a grocery business (“the Shop”). After moving into the House, Joe and Clare lived there for the remainder of their lives.
The House has recently been valued at £200,000. Marion, who is now aged 86 and in such poor health that she was unable to attend the trial to give evidence, lives there still, though it seems unlikely that she will be able to cope with living there for much longer. Averil and Deborah have made it clear from the onset of these proceedings that they have no intention of depriving Marion of a roof over her head and something on which to live. They accept that even if they succeed in their claim, the Court would have to take into account the need to make some provision for Marion. £200,000 would plainly be insufficient for private nursing accommodation and care, so the Court has been invited to make a declaration that the House (and its proceeds of sale) is held on trust, in such shares as are found to be appropriate to achieve the minimum necessary to do justice, with a power in the trustees to advance capital as and when required to meet Marion's needs; the residue to go to Averil and Deborah when Marion passes away. On the other hand, even if I were to find that there was no proprietary estoppel, Mr Darton on behalf of the Defendant acknowledged that Averil and Deborah may have a claim against Joe's estate in restitution. They have each expended £100 per month for approximately 20 years. Although these sums seem relatively small when viewed in isolation, over the years the expenditure adds up to £48,000 without taking into account the present value of the money expended, or adding interest.
In the light of the above, it is disappointing that the parties to this litigation have been unable to reach a compromise. Although both sides were at pains to assure me that there was never any ill-feeling between Averil and Deborah on the one hand and Marion on the other, I gained a very strong impression on listening to the evidence that I was not, by any means, told the whole story. The fact that neither of Joe's daughters was invited to his wedding to Marion, that at around the same time Joe appears to have cut them both out of his Will, that he had not changed his mind about that when he made his final Will two years later, that Deborah did not attend Joe's funeral but chose to remember him with her own private ceremony at home, and that on more than one occasion Averil had to resort to using the “PALS” service at the hospital to which Joe was admitted as a means of finding out how her father was and getting messages to him, are examples of indications of far greater family tensions than anyone was prepared to admit. However, it is not the function of the Court to speculate, but to decide the case on the evidence that was put before it, and that is what I shall do.
PROPRIETARY ESTOPPEL
The application of the doctrine of proprietary estoppel in a context such as the present has been the subject of very recent consideration by the House of Lords in Thorner v Majors [2009] UKHL 18 (“ Thorner”). Despite suggestion in some respected academic quarters that the doctrine had been severely curtailed or even extinguished by the decision of the House of Lords in Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752, its existence and availability as an equitable remedy were confirmed in the more recent case, and Thorner is now to be taken as the leading modern authority.
Although there is still no comprehensive and uncontroversial definition of proprietary estoppel, there are essentially three elements: a representation or assurance made to the claimant pertaining to an interest in identified property; reasonable reliance on it by the claimant; and detriment to the claimant in consequence of that reliance. The claimant has to show that it would be unconscionable for the person who made the assurance or representation to go back on his word, and deprive the claimant of the proprietary interest he had been led to expect. In Thorner, the House of Lords had to decide two issues; first, what must be the character or quality of the assurance, and secondly, what consequences flow if the land to which the assurance relates is inadequately identified or changes its situation or extent during the period between the giving of the assurance and its repudiation.
The main problem facing the claimant in Thorner was that he had to establish the necessary assurance by inviting the court to draw an inference from the statements and behaviour of the testator, a man of few words who never stated in terms that he intended the claimant to inherit the farm that was said to be the subject of the proprietary estoppel. Lord Walker, at paragraph 56, said this:
“I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context.”
Lord Neuberger, who agreed, sounded the following note of caution in paragraph 85:
“it would be quite wrong to be unrealistically rigorous when applying the “clear and unambiguous” test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually. Again this point is underlined by the authorities, namely those cases I have referred to in para 78 above, which support the proposition that, at least...
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