Paul John McElroy v Lynne McElroy (in her capacity as administrator of the estate of Ray James McElroy and in her personal capacity)

Hearing date: 4 October 2022

Introduction

Paul John McElroy (“ Paul”) and Lynne McElroy (“ Lynne”) are respectively the brother and wife of Ray James McElroy (“ Ray”), who sadly died suddenly on 18 February 2011 at the age of 50 and some 5 months after his marriage to Lynne.

On 1 August 2011, Lynne swore an oath for a grant of letters of administration stating that Ray died “domiciled in England and Wales intestate a married man….”.

On 24 August 2011, letters of administration were granted to Lynne, and thereafter Ray's estate was administered with the final estate accounts being signed on 9 April 2012. (The stated total net assets were £490,495.88.)

On 4 October 2021, Paul issued the present claim to have the grant of letters of administration revoked on the grounds that:

a. Paul is the sole beneficiary of Ray's estate under a will dated 27 September 2002 (“ the Will”);

b. Unlike in England and Wales, under the law of Scotland a will is not revoked by a subsequent marriage;

c. At the dates of both his marriage to Lynne and his death, Ray was domiciled in Scotland;

d. Therefore, the validity of the Will is governed by the law of Scotland such that it was not revoked by Ray's marriage to Lynne and was valid at the date of Ray's death; and

e. Lynne obtained the letters of administration by making false depositions that Ray died domiciled in England and Wales intestate.

By order dated 7 March 2022 and by consent, it was directed that there be a trial of the following preliminary issue:

“Is the Claimant's claim barred by laches, acquiescence and/or issue estoppel?”

This is my decision on that preliminary issue.

Background

Ray was born on 10 August 1961, and Paul was born on 11 June 1962. They were both born in Wales. Their parents separated in around 1964, and in 1966 their mother married their stepfather in Oswestry. Thereafter, Ray and Paul both took their stepfather's surname.

In about 1974, Ray went to live with his maternal grandmother in Shropshire before enlisting with the Royal Navy in 1976. In the 1980's Ray was posted to the Nuclear Submarine Station in Faslane on the River Clyde. During this posting, Ray met his first wife, Karen Napier Brown (“ Karen”). They were married on 10 March 1990 and purchased in joint names a family home at 72 Broughton Street, Edinburgh (“ the Property”).

Ray was discharged from the Royal Navy in 1995 and thereafter worked the remainder of his life aboard ships operating in the oil and gas industry. As a result, Ray spent large periods of time away from home at sea.

After initially moving to Singapore, Ray and Karen then moved to Australia in 1999 where they bought a home whilst renting out the Property.

In 2002, Ray and Karen commenced divorce proceedings. As part of the financial settlement, Ray retained the Property. Whilst continuing to live in Australia, Ray executed the Will, which:

a. Appointed Keith Edward McCorriston (“ Keith”) as his executor and trustee;

b. Gave the whole of his “estate both real and personal” to Paul; and

c. In the event that Paul did not survive Ray, gave the whole of his estate to Paul's children in equal shares.

In 2003, Ray moved back to Scotland where he met Lynne.

In 2005, Ray moved into the Property.

In August 2009, Ray and Lynne were engaged to be married, and at that time Lynne, together with her two children, moved to live permanently at the Property.

On 5 September 2010, Ray and Lynne were married.

In 2011, Ray instructed Morton Fraser Solicitors (“ MFS”) to draft a new will, which:

a. Appointed Paul and Lynne as his executors and trustees;

b. Gave bequests of some personal items and cash;

c. Gave the whole of his residuary estate to Lynne; and

d. In the event that Lynne did not survive him, gave the whole of his residuary estate to Lynne's children in equal shares.

Before Ray was able to execute the new will, he died suddenly and unexpectedly on 18 February 2011 whilst working at sea off the coast of South Africa.

On 25 February 2011, Lynne instructed MFS in relation to Ray's estate.

At the time of his death, Ray was a member of his employer's life assurance scheme (“ the Scheme”). On 13 June 2011, MFS wrote to the trustees of the Scheme (“ the Trustees”) challenging their decision to pay the full amount of the death in service benefit (“ DSB”) to Paul in accordance with Ray's expression of wishes dated 15 February 2006. The basis of that challenge was that, in exercising their discretion, the Trustees had failed to take into account the following relevant considerations:

a. On 24 February 2007, Ray nominated Lynne and Paul to receive 50% each of the dependents' pension payable on death under Ray's occupational pension scheme;

b. In September 2010, Ray married Lynne; and

c. In January 2011, shortly before his death, Ray instructed solicitors to draft a will bequeathing the whole of his residuary estate to Lynne.

By way of separate letters (albeit in similar terms) dated 29 July 2011 and 16 August 2011, solicitors for the Trustees wrote respectively to MFS and Paul confirming (with reasons) the Trustees' decision to pay 50% of the DSB to each of Lynne and Paul, but conditional upon them each signing a Receipt, Release and Indemnity. Lynne and Paul each then received the sum of £172,167.80.

On 1 August 2011, Lynne swore the oath for a grant of letters of administration by which she said that Ray died domiciled in England and Wales intestate.

On the 24 August 2011, letters of administration were granted to Lynne.

On 18 March 2012, Lynne, in her capacity as administrator of the estate, transferred the Property to herself as beneficiary of the estate.

On 9 April 2012, Lynne signed the final estate accounts, which recorded the value of the Property as £320,000.

In February 2015, Lynne purchased her current home using the Property as part exchange with the developer.

On 6 July 2018, Paul's solicitors, Aaron & Partners Solicitors (“ APS”), sent a 4 page letter of claim to Lynne, which concluded as follows:

“We are instructed by our client to make an application in the English Court for the Grant of Letters of Administration made to you to be revoked which will enable our client to apply for Confirmation in the Scottish Sherriff Court of the Will and thereafter administer Ray's estate in accordance with the terms of the Will. This will require the return of assets that you have incorrectly received from Ray's estate to Paul as the beneficiary entitled to those assets.”

After several chasing letters by APS, Gillespie Macandrew LLP (“ GM”) responded on behalf of Lynne by letter dated 17 August 2018. That letter failed to engage with the substantive arguments raised by APS and simply dismissed the claim as follows:

“We have now had the opportunity to consider the terms of your letter, review the papers relative to the estate and the legal advice received by our client at the time. We do not see any grounds for overturning the Grant of Probate.”

On 19 July 2019, APS wrote to the Newcastle District Probate Registry requesting that the Registrar exercise the power under the Non-Contentious Probate Rules to revoke the grant on the grounds that it was obtained by knowingly false statements made by Lynne. On 2 August 2019, Paul swore a supporting affidavit.

On 21 October 2019, the Probate Officer at Newcastle District Probate Registry responded to confirm that:

“As previously mentioned, the Registrar can only revoke the grant if the current grantee consents to the revocation; but as this appears to be the subject of contention it can only be dealt with as a revocation action in the Chancery Division.”

In August 2020, Paul sent a further 4 page letter before claim to Lynne, which was drafted with the assistance of Counsel.

By letter dated 17 September 2020, GM responded:

“We have no further comment to make on this matter and simply re-iterate our position from August 2018 that we do not see any grounds for overturning the Grant of Letters of Administration.”

On 26 November 2020, Paul issued a claim form, which was personally served out of time on Lynne on 4 June 2021.

On 4 October 2021, Paul issued a further claim form, which was validly served upon Lynne, who filed a Defence dated 20 January 2022 and which stated by way of introduction:

“……..

2. In summary the Defendant's position is that:

a. The Claimant's claim is barred by laches/or acquiescence or issue estoppel. The Claimant expressly represented he would not seek any inheritance from the Deceased and has taken financial advantage in the receipt of large death benefits on the basis that the Defendant was the sole heir upon intestacy. The Defendant has relied upon those actions such that it would be inequitable now for the Claimant to resile from them.

b. Without prejudice to that preliminary issue, the Deceased died intestate. The Deceased was domiciled in England and Wales at the date of his marriage to the Defendant and at his death. Accordingly, the will dated 27 September 2002…was revoked by the Deceased's marriage to the Defendant.”

In his Reply dated 17 February 2022, Paul responded:

“……..

Alleged Laches/Issue Estoppel

2. ….. it is specifically denied that the Claimant...