Mrs Matilda Clarke (in her personal capacity and as executor of the estate of Mr Lloyd George Clarke deceased) (a protected party by her litigation friend Mrs Elizabeth Shirley St Hill) v Ms Vinette Dawn Allen
| Jurisdiction | England & Wales |
| Judge | Deputy Master Linwood |
| Judgment Date | 23 May 2019 |
| Neutral Citation | [2019] EWHC 1193 (Ch) |
| Court | Chancery Division |
| Docket Number | CLAIM NOS: PT-2017-000220 and PT-2019-000028 |
| Date | 23 May 2019 |
[2019] EWHC 1193 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
In the estate of Lloyd George Clarke deceased
In the matter of the Inheritance (Provision for Family and Dependants) Act 1975
Deputy Master Linwood
CLAIM NOS: PT-2017-000220 and PT-2019-000028
Mr Francis Ng (instructed by Romain Coleman) appeared on behalf of the Claimant.
The Defendants neither appeared nor were represented.
Hearing: 25 th, 26 th and 29 th March 2019
I direct that pursuant to CPR PD39A para.6.1 no recording shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
This is my judgment following trial of two claims brought by the Claimant, who is the executor and widow of the late Mr Lloyd George Clarke, represented by her litigation friend Mrs St Hill. The Defendants are his daughters. In December 2017 the first claim (220) was brought seeking reasonable financial provision out of the estate pursuant to the Inheritance (Provision for Family and Dependants Act 1975 (“the Act”) (“the inheritance claim”) and rescission for mistake. Deputy Master Bowles ordered separate proceedings should be brought for the latter claim so in January 2019 the second claim was instituted (028) for an order rescinding the transfer of the family home, 18 Parkholme Road Dalston London E8 (“the Property”) for mistake (“the mistake claim”).
References to numbers in square brackets are to paragraph numbers in this judgment unless the context appears otherwise. As some 18 witness statements from 6 deponents have been served I will refer to them by the deponent's initials/number/para. number. I will refer to the members of the family by their first names, with no disrespect intended, and to Vinette and Heather together as “the Daughters”.
Attached to this judgment as Annexe 1 is an extensive chronology prepared by Mr Ng which I have found most helpful in setting out the numerous strands of this quite complicated family dispute and in particular the rival claims to the properties involved and the health of Lloyd. The parties and lawyers – individuals and their firms — are referred to by their personal or party initials. The events are, where possible, cross referred to the file/section/page or witness evidence in the bundles. The narrative is neutral and the facts are correct from my assessment of the evidence as I refer to below. The documentation I have before me is extensive and contained in 12 lever arch files.
Background
These claims arise from two transactions by Lloyd; on 13 th April 2010 he transferred the Property from his sole name to himself and his daughters Vinette and Heather, as joint tenants. A few months later, on 6 th July 2010 he executed a will (“the Will”) leaving the Property to his Daughters, expressed a wish that Matilda should remain living there for the rest of her natural life and gave the residue of his estate to his daughters and Matilda in equal shares.
The Property was valued by Mr Costello of Strettons as Single Joint Expert in his report dated 4 th September 2018 at £1,380,000. This valuation is not disputed and as of now there are no other capital assets. As to the Property, Mr Ng asks me to rescind the transfer or make an order under s.9 or s.10 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”). He submits that due to the conduct of Vinette and Heather I should award the entirety of Lloyd's estate to Matilda by way of reasonable financial provision, in effect setting aside the provisions of the Will.
The Daughters' response to the inheritance claim is opaque. At no stage have either denied that Matilda has a proper claim. They have not engaged with the mistake claim. Below I outline the parties, witnesses and lawyers, setting out their involvement in these claims and Lloyd's deteriorating mental health. I then set out the evidence as to the transfer of the Property and the drafting of the Will, the law relating to mistake, apply it to the facts as I find them and then give my decision.
I then turn to the inheritance claim and set out my findings of fact on matters directly related to that claim, plus my consideration of the law relating to adverse inferences. I then assess Matilda's claim by reference to the Act and set out my findings and my decision.
The Parties, Witnesses and Lawyers
Lloyd Clarke
Lloyd was born in Jamaica in 1932. He was a policeman until he emigrated to the UK in the 1950s, where he worked for Royal Mail and then as a ticket inspector for British Rail. (“BR”). He purchased the Property in his sole name in 1961. In the 1960s he married Clarice Brown. They had no children. She died in the late 1990s – 1998, according to Vinette at VA/3/12.
Shortly thereafter he met Matilda, who was born in April 1937 and is now 82. Matilda gave up her secure tenancy of some 32 years of a local authority property without exercising her right to buy to move in with Lloyd. They married in December 2006, when he was 74 and she was 69. In 2013, Lloyd's health had deteriorated so much that he had to move into a nursing home.
The matters I now describe below as to his health all appear in his medical records and correspondence from his local authority, the London Borough of Hackney (“LBH”). His medical records show Matilda complaining to his GP, Dr Bourne, of him having a poor memory — which Lloyd admitted – in February 2009. In May 2009 Dr Bourne recorded when he saw Lloyd with a daughter whom I presume to be Vinette (as she lives in the Midlands whereas Heather had moved some time before to New York) of worsening memory. He was seen in June and September 2009 in the memory clinic at Guy's Hospital and there appears to have been a diagnosis of vascular dementia in September 2009.
On 17 th September 2009 a daughter asked Dr Bourne for a letter to say Lloyd had Alzheimers; he refused to do so as there was no diagnosis. On 9 th October 2009 Dr Bourne recorded that he spoke to a daughter who wanted a letter as “ …there have been problems regarding his memory with regards the splitting of his wealth”.
The same day, Dr Bourne provided a letter addressed to whom it may concern regarding Lloyd's memory. He said he was still able to do all activities of daily living but there was possible age-related memory loss and early dementia – but not confirmed.
Another approach was made by a daughter for a letter for solicitors on 8 th December 2009 stating he could carry out every day functions. On 10 th December 2009 Dr Bourne records that Lloyd “… is able to manage his affairs, and when he recently received a letter saying his wife had applied for a housing rights — he called his daughter to say something was wrong – he seems able to understand and act on correspondance” (sic).
Dr Bourne prepared a letter, on Vinette's request, to Lloyd's solicitors Spence & Horne (“S&H”) dated 20th February 2010. It referred to his last letter of 9 th October 2009 — [12] above. It states that “ At this moment in time I feel he is able to handle his own affairs competently”.
After obtaining Lloyd's consent, he sent it to S&H. Dr Bourne's note of 18 th February 2010 when he saw Lloyd and Vinette records that Lloyd wanted a letter saying he had capacity but he did not want it sent to the Property as Matilda “ …may get upset”. This followed a consultation on 16 th February when Lloyd told Dr Bourne that he didn't want the letter sent to his solicitors for the moment as “ …he is getting on well with his wife”.
On 13 th April 2010 Dr Bourne spoke to a daughter, no doubt Vinette, who said S&H wanted him to sign the Will in the presence of Lloyd. A double appointment was booked and on 6 th July 2010 Lloyd came in with his daughter, asking him to sign the Will as a witness which Dr Bourne records he did, stating “ I feel he is competent to make this decision”. Lloyd's GP's notes show he was diagnosed with Multi-infarct Dementia on 24 th May 2010.
On 1 st September 2010 Lloyd attended Dr Bourne with Vinette, who wanted a Power of Attorney (“PoA”) signed as household bills were not being paid. Then on 30 th November Dr Bourne saw Vinette who explained there were family troubles with Matilda, and said she would organise the PoA. In July 2011 Dr Bourne recorded that as Lloyd was unable to understand the purpose of the PoA he would refer him to another doctor for assessment as to whether he could sign it.
A Dr Singh went to see Lloyd on 16 th September 2011 with Barbara Smith, an LBH social worker, to assess capacity in financial matters. Dr Singh wrote to Dr Bourne that day setting out his findings. Matilda had told Dr Singh that about 10 years before Lloyd gave his daughter Heather £40,000, bought shares in joint names and opened a joint account. Matilda, Dr Singh records, wanted a share of that money and felt the government should get it back for her. Dr Singh said this was not a question of capacity (which Lloyd had 10 years before) but family dynamics, and that Lloyd was clear he did not want the police involved.
. Dr Singh next saw Lloyd next on 23 rd March 2012 with Colette O'Driscoll, another LBH social worker. He reported his findings in a letter dated 5 th April. Matilda was by then very concerned as to Lloyd's capacity and wanted LBH social services to take over his finances as she could not manage them. Dr Singh confirmed Lloyd had dementia and “ …could not grasp the need for us to have the information regarding his finances. He also is not aware of the extent of his finances and is unable...
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