Mrs Lynda Turner v Mr Richard Phythian and Another
| Jurisdiction | England & Wales |
| Judge | Vivien Rose |
| Judgment Date | 15 March 2013 |
| Neutral Citation | [2013] EWHC 499 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC11C02446 |
| Date | 15 March 2013 |
[2013] EWHC 499 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Vivien Rose
(Sitting as a Deputy Judge of the Chancery Division)
Case No: HC11C02446
In the Estate of Iris Doreen Mary Wilson Deceased (Probate)
Mr Mark Blackett-Ord (instructed by Cripps Hall & Harries LLP) for the Claimant
Sir Geoffrey Nice QC and Mr Paul Spencer (instructed by Ralph Haring Solicitors) for the Defendants
Hearing dates: 12, 13, 14, 15 and 18 February 2013
Introduction
Mrs Iris Wilson ('Iris') died on about 6 October 2010 in her flat in Poplar in East London. She was a widow, her husband of many years, Alf, having died in September 2007. Iris and Alf had no children but were members of a large extended family. Iris was one of the five children of Joe Jolly and his wife Liz (nee Watson). Iris and her twin brother John were the youngest of these children. John Jolly married Jesse Jolly in 1960 and they had four children. One of those children, Lynda Turner, is the Claimant in these proceedings.
Iris died leaving the will which is contested by the Claimant ('Mrs Turner'). The will is dated 31 August 2010. It appoints the First Defendant ('Mr Phythian') as the sole executor and makes the following disposal of Iris' estate:
i) All her personal effects are left to the Second Defendant ('Mrs Phythian');
ii) The property known as North Lodge, Kenward Road, Yalding, Kent ME18 6AH is left in equal shares to Mr and Mrs Phythian;
iii) The residue of the estate is left to Mrs Phythian, or in the event of her predeceasing Iris, to Mr Phythian.
Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. Those witnesses were Jean Naden, who is Iris's sister and Jean Naden's long-standing friend and neighbour Barbara Leslie, both of whom have given evidence on behalf of Mrs Turner. Mr Phythian who organised the signing of the will and was there at the time says that the will was properly attested.
The second ground is that Iris lacked mental capacity to make the will. There is evidence from family members describing Iris' mental state generally and from friends of the family describing how frail Iris appeared when attending the funeral of her brother John on 25 June 2010, that is a few months before the will was made. There is also some medical evidence including a report from Professor Robin Jacoby DM FRCP FRCPsych, Professor Emeritus of Old Age Psychiatry at the University of Oxford. Mr and Mrs Phythian's case is that although Iris was physically frail at the end of her life, she was mentally alert and in control of her financial and household affairs. They say that there is no reason to doubt that Iris knew what she was doing and that she intended to leave her estate to them.
The third ground is that Iris did not know or approve of the contents of the will. Broadly speaking, the case put forward by Mrs Turner is that Iris was part of a close knit and loving family who cared for her and looked after her for many years. She and her cousin Pat Jolly (the daughter of Iris' older brother Billy) devoted much time and energy to looking after Iris over many years. In contrast, they say, Mr and Mrs Phythian only became involved in helping take care of Iris after Alf's death in 2007 and their help, though welcomed by the family at the time, was not substantial —certainly not of a scale or nature that could explain Iris' apparent decision to leave all her estate to them. They say that it is therefore highly improbable that Iris realised that she was leaving all her possessions to the Phythians.
Further in relation to this third ground, Mrs Turner relies on evidence as to what happened when Mr Phythian became involved in the drafting of a will for Jean Naden (Iris' sister). In that will, Mrs Naden bequeathed a number of shares to him but it appears that she did not realise how valuable those shares were. When, following Iris' death and the start of this dispute, Mrs Naden revoked the will. This event is relied on by Mrs Turner as evidence that 'Mr Phythian was not a man to miss an opportunity for making suggestions for his own advancement' as Mr Blackett-Ord, appearing for Mrs Turner, put it in his written submissions.
Mr and Mrs Phythian say that Iris' relationship with her family was not as loving and warm as the Jollys have portrayed it and that, particularly towards the end of her life, Iris' contact with her family had fallen off. Iris had become, they say, dependent on their help for her daily living and for friendship. Her intention to leave them the property North Lodge was of long-standing and given the role that they had come to play in her life, not at all surprising.
The Jolly family
The main evidence challenging the will came from Mrs Turner and her cousin Mrs Pat Jolly, both of whom were Iris' nieces. In their written evidence they gave a vivid description of the history and character of the Jolly family, their aunt Iris and their relationship with her from the time they were small children to the time of Iris' death. Some of this was uncontested.
Iris's parents, Joe Jolly and Liz Watson both came from large families and were third generation East London greengrocers. Iris never went into the family business but from an early age she was devoted to looking after her parents and their home. Pat Jolly's evidence was that:
"The Jolly family, brothers and sisters, mother and father uncles and aunts, have always remained close because they were all in the same business. Members of the family would swap produce or help each other out picking produce up from the market, so they had to call on each other on a regular basis and saw each other every day at Stratford Market."
Mrs Jolly describes Christmas and New Year in the Jolly household involving parties for the extended Jolly and Watson families converging on the flat in Poplar where Iris lived with her parents. She also describes family days out to the seaside, to attend the races at the Derby and Royal Ascot and how the family would frequently holiday together in their caravans.
Iris' father Joe died in November 1960 and her mother died of a stroke in 1978. According to Mrs Jolly, after Liz Jolly's death, Iris and Alf, who had married in 1956, lived at the Poplar flat but spent a great deal of time with John's family both when they lived in Barking and later when they moved to Sadlers Hall Farm, a house in the countryside which could accommodate long visits from relatives as well as provide a venue for many family gatherings over the years.
The main item in Iris' estate when she died was a property called North Lodge. This had been bought by Iris and Alf in the early 1970s. According to Mrs Jolly, it was paid for with money from Iris' brothers and mother. The property was very cheap because the only building on it was a small broken down structure which subsequently burnt down and had to be demolished. The rebuilding of a house on the property took many years and it was completed in the 1980s. After Alf s death Iris did not regularly stay at North Lodge and the family encouraged her to sell it and use the money to buy a more comfortable and convenient home to live in. But she refused and both sides in this dispute have described North Lodge as having been kept on by Iris as 'a shrine' to Alf.
Iris' husband Alf became ill in August 2007 and died in September of that year. Thereafter Iris lived by herself in the flat in Poplar.
The Phythians
Mrs Phythian (then Pamela Rance) met the Jollys in the 1950s when she became engaged to John Jolly. Her family was also in the greengrocery business. She became friendly with Iris at this time and was a bridesmaid at Iris' and Alf s wedding. However, John was at the same time also involved with Jesse and when Jesse fell pregnant, John broke off his engagement to Pamela and married Jesse. Pamela later met and married Mr Phythian and they have one grown up son. Mr and Mrs Phythian are now approaching or in their 80s.
After they married, the Phythians maintained occasional contact with Mrs Naden and with Iris over the following decades but for many years this was limited to an exchange of Christmas cards.
The Phythians' greater involvement with Iris started after Alf's death. From the end of 2007 Mr and Mrs Phythian began visiting Iris and taking her on outings with them. Mr Phythian began to take over managing some of Iris' finances. Particularly relevant to this case is his involvement with the upkeep of North Lodge which was situated not far from his own home. Initially North Lodge needed some repair work and there was also on-going general maintenance of both the house and the garden. Iris gave Mr Phythian instructions as to what should be done when he took on organising this in about April 2008. Thereafter Mr Phythian hired and supervised the people working at North Lodge and he paid the workmen from his own funds to be reimbursed by money from Iris. At first the repayment of his outlay on North Lodge was effected by him or Iris drawing cash out of a bank account in lots of £250, the maximum that could be drawn at one time. This arrangement lasted for most of 2008. In early 2009 it was decided that £16,000 would be transferred to Mr Phythian by Mrs Naden and that he would pay for Iris' expenses out of that. Detailed records and reconciliations were kept over the whole period by Mr Phythian retaining all the cash slips and invoices and showing how each lot of £250 cash had been spent and then how the £16,000 was being drawn down. The money was not...
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Table of Cases
...105 Turkey v Awadh [2005] EWCA Civ 382, [2005] 2 FCR 7, [2006] WTLR 553, [2005] All ER (D) 131 (Mar) 81 Turner v Phythian; Wilson, Re [2013] EWHC 499 (Ch), [2013] All ER (D) 154 (Mar) 53, 84 Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] AC 164, [2002] 2 WLR 802, [2002] 2 All ER 377, [2002......
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Testamentary Capacity
...the test in Banks v Goodfellow . There does not appear to be any reference to the provisions of sections 2 and 3. In Turner v Phythian [2013] EWHC 499 (Ch), the judge referred in passing to the test applied under the Act as being relevant but did not determine the issue on that test because......
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Undue Influence
...(For another example where lack of capacity and want of knowledge and approval was proved, see Turner v Phythian and Another [2013] EWHC 499 (Ch).) Where the testator/testatrix may have been influenced by an extra-marital relationship consideration, this does not amount to undue influence, ......