Mr Pinnock v Miss Rochester

Approved Judgment

This is an appeal brought with the permission of this court against an order of Recorder Nigel Thomas QC in the Central London County Court striking out a claim brought by the appellant, Mr Pinnock, to challenge the validity of the Will dated 21 December 2005 made by his father, Leonard Roxwood Stewart ("the deceased") in favour of the respondent, Miss Rochester, the deceased's sister, and to revoke the probate dated 3 April 2006 of that Will. The deceased died on 24 December 2005.

Shortly before Mr Pinnock's claim was struck out, an additional claimant was added, Ms Stewart, who is Mr Pinnock's half-sister. However, she is resident in the USA and there may be practical difficulties in her pursuing the claim. By his Will, the deceased appointed Miss Rochester to be his executrix and sole legatee. In the event that the Will is set aside, Mr Pinnock and Ms Stewart, who are the only children of the deceased, seek to have a grant of letters of administration.

The basis of the probate claim is that, at the date of the Will, the deceased lacked testamentary capacity and/or there was want of knowledge and approval of the contents of the Will. If the Will is set aside and probate revoked, Mr Pinnock and Ms Stewart will share the estate of the deceased according to the law applicable on an intestacy.

The factual background is helpfully set out in paragraphs 3 to 9 of the judgment of the learned Recorder as follows:

"3. The deceased at the date of his death was about 66 years old. He had been admitted to hospital in September 2005 suffering from heart problems and again on 9 November 2005, with a number of medical conditions. The Will was made three days before his death, namely on 21 December 2005 and the claimant says, when he saw the deceased shortly before, he found him to be confused and unable to recognise visitors. It is on this basis that the claim is now brought and of course, in his Statement of Case, the claimant draws attention to the circumstances of the making of the Will a few days before the death.

4. The claimant was born on 29 December 1988 and therefore retained his majority on 29 December 2006. His mother is Inez Pinnock. The deceased and Miss Inez were never married but the claimant says that, so far as he can remember, he always understood himself to be the son of the deceased. From about the age of 7 or 8, he started to spend weekends with the deceased and thereafter saw him regularly until his death.

5. Probate of the Will was granted to the defendant on 3 April 2006 when the claimant was 17 years old. Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 ("The 1975 Act proceedings") were issued on 29 September 2006 (within the six month time limit imposed by section 4 of the Act) by the claimant, with the claimant's mother acting as litigation friend. The defendant in the 1975 Act proceedings was of course the defendant.

6. Initially the defendant challenged the claimant's assertion that he was the deceased's son. A DNA test was commissioned and on 2 July 2007, a report confirmed that he was the son of the deceased.

7. By letter dated 10 August 2007, the claimant's solicitors wrote to the defendant's solicitors stating that, although there has as yet been no challenge to the validity of the Will, the claimant reserved his position in his regard, even after the 1975 Act proceedings were concluded. This point was, in general terms, repeated by letter dated 30 January 2008 from the claimant's solicitors to the defendant's solicitors. In like vein, several other letters were exchanged between January and March 2008.

8. Matters, however, have not stagnated in the 1975 Act proceedings, and on 13 March 2008, the claimant's solicitors wrote to the defendant's solicitors enclosing a draft consent order, stating that the claimant was not, in settling the 1975 Act proceedings, thereby waiving his right to challenge the validity of the Will. Other letters were subsequently exchanged between the claimant's solicitors and the defendant's in which it was maintained that settling the 1975 Act proceedings would not preclude the bringing of an action to set aside the probate and will and vice versa.

9. A consent order was made by Master Teverson on 1 April 2008 (entered 7 April 2008) in which the claimant accepted £27,500 "in full and final settlement of the claimant's claim against the estate of his father Leonard Roxwood Stewart (deceased) under the Inheritance (Provision for Family and Dependents) Act 1975" together with costs of £21,250. The order was headed "In the matter of the estate of Leonard Roxwood Stewart (deceased)" and "In the matter of the Inheritance (Provision for Family and Dependants) Act 1975"." [Quote unchecked]

Mr Pinnock issued his probate claim on 27 November 2008. By application dated 1 September 2009, Miss Rochester applied to strike it out on two grounds: (1) she maintained that Mr Pinnock was precluded from bringing his probate claim to challenge the validity of the Will by virtue of the equitable doctrine of election on the basis that, by bringing the 1975 Act proceedings and entering into the consent order and accepting payment under it, he had elected to affirm the validity of the Will and that it would be inequitable for him now to be permitted to dispute it; and (2) she maintained, for essentially similar reasons, that it would be an abuse of process for Mr Pinnock now to proceed with is probate claim.

The learned Recorder upheld these objections based on equitable election and abuse of process and struck out Mr Pinnock's claim. The Recorder directed himself by reference to the summary of the principles governing election given by Gabriel Moss QC, sitting as a Deputy High Court Judge, in Nexus Communications Group Limited v Lambert [2005] EWHC 345 Ch at paragraph [45], where he said this:

"Election in equity means that a party cannot both accept an instrument or judgment and reject it. He cannot take a benefit under the instrument or judgment without taking the accompanying burden. By analogy, this principle also extends to litigation where a party succeeds in obtaining judgment on the basis of a particular contention and cannot then resist judgment based on that same contention, where that would be inequitable. The inequity here is once again based on the benefit/burden principle: having taken the benefit of the judgment on a particular basis the party must accept the burden of the judgment for the other relevant party on the same basis."

The Recorder referred to section 19(1) of the 1975 Act, which provides as follows:

"Where an order is made under section 2 of this Act then for all purposes, including the purposes of the enactments relating to capital transfer tax, the Will or the law relating to intestacy, or both the Will and the law relating to intestacy, as the case may be, shall have effect and be deemed to have had effect as from the deceased's death subject to the provisions of the order."

He then referred to Re Pointer [1946] Ch 324, a decision of Wynn-Parry J under the Inheritance (Family Provision) Act 1938. Wynn-Parry J said this at p. 326, regarding the effect of section 3 of the 1938 Act, a provision in identical terms to section 19 of the 1975 Act:

"It is clear from the provisions of the [the 1938 Act] that a dependant in whose favour an order is made under the Act is placed for all purposes in the position of a beneficiary. Secondly, it is clear that the effect of any such order is to vary the Will in question…

In my judgment the scheme of the Act involves first, that, assuming the necessary conditions obtain, the court may by order make provision for the dependant applying to it; secondly, if it makes such an order the provision made thereby is to be treated for all purposes as a legacy; and thirdly, the Will is for all purposes to have effect as if that legacy had been contained in it when it was made."

Having referred to this passage, the learned Recorder then said this at paragraphs [18]–[19] of his judgment:

"18. The situation may often arise because of the time limits imposed by the 1975 Act, that an applicant would wish to protect their position by issuing proceedings under it whilst also investigating the facts which may give rise to a claim challenging the validity of the Will. I see no difficulty in such cases, but once all the facts are known to the applicant that might give rise to a claim challenging the validity of the Will, then it seems to me that such a claim must be given priority and the 1975 Act proceedings should, at the very least, be stayed pending the investigation of the Will's validity.

19. In my judgment, the terms of the consent order to which I have referred made it plain that the claimant was accepting a benefit from the deceased's estate on the basis that the Will failed to make adequate provision and the effect of his agreement to compromise his claim was that he is to be treated for all purposes as though he was a beneficiary of the estate who obtained a legacy. That seems to me to be the unavoidable effect of section 19 as explained in Re Pointer." [Quote...