Mr Gavin Boast v Ms Linda Ballardi
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 28 June 2022 |
| Neutral Citation | [2022] EWHC 1533 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-000569 |
[2022] EWHC 1533 (Ch)
Master Clark
Case No: PT-2019-000569
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Gareth Jones (instructed by Premier Solicitors) for the Claimant
Hearing dates: 4 December 2020, 19 August 2021
Approved Judgment
I direct that this approved judgment, sent to the parties by email at 2pm on 28 June 2022, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.
This is my judgment following the trial on written evidence of this probate claim brought by claim form dated 12 July 2019.
The deceased, Edward Henry Charles Smith died on 24 January 2016, aged 97. He was unmarried and had no children. The claimant, Gavin Boast, is the deceased's great nephew.
The claimant seeks orders:
(1) pronouncing against a will dated 11 June 2013 (“the 2013 will”)
(2) pronouncing for a will dated 15 March 2006 (“the 2006 will”).
Both wills were professionally prepared by a firm of solicitors, Cross Ram & Co (“Cross Ram”).
will
The claimant is the sole executor of and sole beneficiary under the 2006 will.
will
The claimant is also the sole executor of the 2013 will, under which he receives a legacy of £15,000. The 9 th defendant, Mrs Karen O'Connell (referred to by her unmarried name, Karen Boothby, in the will) receives a legacy of £3,000. The residuary estate is left on trust for
“such of my sisters Dorothy Mallard of 14 Castle Avenue, Duston, HN5 6LF and Constance McCrossan of 10 Churchill Avenue, Bootsville, Northampton NN3 6NY as shall survive me and if both in equal shares absolutely.”
Both sisters predeceased the deceased. The persons entitled on the partial intestacy thereby arising are the deceased's nieces and nephews.
The claimant's evidence includes a family tree, supported by relevant certificates of birth and death, which evidences the following. I refer to the family members by their first names.
The deceased had 3 sisters:
(1) Evelyn Eleanor Blanche Brown (née Smith);
(2) Dorothy Lilian May Mallard (née Smith);
(3) Constance Elsie McCrossan (née Smith).
Evelyn died on 19 September 2011. She had 5 children:
(1) Linda Rose Ballardi (née Boast) — the 1 st defendant;
(2) Michael Edward William Boast (who died before the claim was commenced, and whose son, Wayne Boast was appointed to represent his estate in the claim by my order dated 22 April 2020) — the 5 th defendant;
(3) Terrance (“Terry”) James William Boast — the 6 th defendant;
(4) Patrick Boast;
(5) Barry Roy Reynolds.
Patrick Boast and Barry Reynolds were formally adopted. Under the Adoption and Children Act 2002, an adopted child is treated for the purposes of intestacy as the child of the couple or person who adopted him, and not as the child of his adopted parents: ss 67 and 144(4). Patrick Boast and Barry Reynolds have therefore no entitlement to the deceased's estate.
Dorothy died on 10 February 2015. She had two children:
(1) Valerie Judith Pettit (née Mallard), who died on 6th March 2020, after the claim was issued – named as the 7 th defendant in the claim form;
(2) Tina Lyne (née Mallard) — the 8 th defendant.
Constance died on 27 January 2015. She had 3 children:
(1) Gillian May Oldfield (née McCrossan) — the 2 nd defendant – whose usual residential address is in Tasmania, Australia;
(2) Colin John McCrossan — the 3 rd defendant;
(3) Michael Ian McCrossan — the 4 th defendant.
Michael is a protected party. His brother, Colin acts as his litigation friend having filed a certificate of suitability dated 18 November 2019.
Consents to the claim
In 2018, before the claim was commenced, Michael, Terry, Valerie, Tina and Karen all consented in writing to the claim.
Following Valerie's death, by my order dated 14 July 2021, Joshua Randall Petitt, in his capacity as her personal representative, was substituted as 7 th Defendant in her place.
The procedural background
It is not necessary to rehearse the various procedural misunderstandings on the part of Gavin's solicitors, including their mistaken assumption that an order could be made under s.49 of the Administration of Justice Act 1985, on the basis that a defendant who had failed to respond to a claim should be taken as having consented to it for the purposes of the Act. Ultimately, I directed that there should be a trial on written evidence.
The first trial, on 4 December 2020, was adjourned to enable Gavin to file submissions as to whether Gillian had been validly served in Australia, and evidence as to those persons who were entitled on intestacy.
The adjourned hearing was on 19 August 2021, when it became clear that the evidence relevant to whether the deceased had capacity when making the 2013 will was not complete. Most importantly, Cross Ram's file in respect of their preparation and the execution of the 2013 will, was not before the court. Since this file had been sent by Cross Ram to Gavin's solicitors in January 2018, its omission from the evidence was surprising and concerning.
I therefore directed that it be filed on the basis that I would either decide the claim without a further hearing, or direct such a hearing. Following the filing of the will file, it became apparent that the deceased's medical records were incomplete; and on 2 February 2022, I gave further directions, including setting out the documents that appeared to be missing. To the extent that they were obtainable, these were filed on 14 June 2022. Having reviewed this additional material, I decided that the claim could be determined without a further hearing.
Service of the claim
All the beneficiaries other than Gillian reside in England, and were served at their residential address. Colin, both on his own behalf and on behalf of Michael, has acknowledged service stating that he does not intend to defend the claim. None of the other English-based defendants have acknowledged service.
As to Gillian, Gavin's solicitors initially sought to serve her by ordinary post at her address in Australia without seeking permission to serve out of the jurisdiction. I granted permission for service out at the first hearing of the trial on 4 December 2020, which was adjourned for further evidence and submissions as to whether service by post in Australia is a method permitted by CPR 6.40(3).
This further evidence clarified that Australia does not permit service by post, unless it is by registered post, and Gavin's solicitors did not use registered post. There is evidence that pre-claim correspondence was exchanged with Gillian, and that she was aware the claim documents had been sent to the defendants (including herself). However, it is clear that valid service of the claim on Gillian in Australia was not effected.
On 4 September 2019, Gillian phoned Gavin's solicitors. The attendance note of that conversation is as follows:
“JG engaged in receiving a call from Gillian Oldfield on 01604 715818
She explained that she has been told she has received some papers in respect of Edward Smith estate.
However, she is in the UK and so hasn't receive them, She asked for an extension of time. JG explained that she cannot advise her on this but can reissue the papers to her.
She is at Collins address, 191 Boughton Green Road.
JG noted and will resend the papers.”
CPR 6.8(a) provides:
“the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings”
Ms Gherra, Gavin's solicitor, posted the claim documents to her on the same day. I am satisfied that Gillian provided Gavin's solicitors with an address for service in the UK, namely Colin's address.
Gavin's counsel suggested that, since the documents sent were photocopies, and not, as he put it, the original sealed copy of the claim form, service had not been valid for that reason, referring me to para 6.3.2 of the 2021 White Book. However, since the introduction in November 2015 of Electronic Working (CPR PD51O), the court does not provide hard copies of the claim form once issued. The court electronically seals the claim form and returns it to the claimant's Electronic Working online account, from where sealed copies may be printed off. Authorities to the effect that valid service can only be effected by service of a sealed hard copy provided by the court have not in my judgment survived the new regime.
Gillian was therefore, in my judgment, validly served. She has not filed an acknowledgement of service.
The claim
I turn therefore to the merits of the claim.
Legal principles
The applicable test as to testamentary capacity is set out in Banks v Goodfellow (1869–70) LR 5 QB 549:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring...
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