Pauline Greaves (Claimant/Defendant to Counterclaim) v Gary Matthew Stolkin
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWHC 1140 (Ch) |
| Court | Chancery Division |
| Date | 03 May 2013 |
| Docket Number | Case No: HC11C03532 |
[2013] EWHC 1140 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF THE ESTATE OF LESLIE STOLKIN DECEASED (PROBATE)
Rolls Building, Royal Courts of Justice,
7 Rolls Buildings, Fetter Lane,
London, EC4A 1NL
Mr Justice Newey
Case No: HC11C03532
Mr James Stuart (instructed by Edwards Duthie) for the Claimant
Mr Andrew Child (instructed by Mischcon de Reya) for the Defendant
Mr Stephen Innes (instructed by Plexus Law) for the Third Party Defendant
Hearing dates: 28-29 January & 18-22 & 25-27 March 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Leslie Stolkin ("Leslie") died aged 75 on 24 September 2009. He left a will dated 3 December 2001 ("the Will"). He had also, some seven weeks before his death, executed a codicil ("the Disputed Codicil"). This case concerns the validity of that document. The claimant, Mrs Pauline Greaves, asks the Court to pronounce in solemn form of law for the Disputed Codicil as well as the Will. Her claim is resisted by one of the deceased's sons, Mr Gary Stolkin ("Gary"). He disputes the validity of the Disputed Codicil on two grounds:
i) Want of testamentary capacity; and
ii) Want of knowledge and approval.
The other parties to the litigation before me are H Montlake & Co ("Montlakes"), a firm of solicitors based in Ilford, Essex. Mrs Greaves and Gary have each brought a Part 20 claim against Montlakes in connection with their involvement with the Disputed Codicil. It has been agreed between the parties that consideration of those claims should be deferred until after I have given judgment on the validity of the Disputed Codicil.
For convenience, I shall refer to members of the Stolkin family by their first names in this judgment. No disrespect is intended.
Factual history
Leslie was born on 6 September 1934. He married in 1958, but he and his wife were divorced in 1989. In the following years, he had a relationship with a Mrs Marcelle Kennedy, but the two had parted company by 1996. After they had separated, Leslie bought a house for Mrs Kennedy.
Leslie met Mrs Greaves in 1996. Mrs Greaves had married in 1962, but she and her husband had separated in 1990, and in 1996 they were divorced. Mrs Greaves moved in with Leslie in about September of the following year, and they continued to live together up to his death. They initially shared a flat that Leslie owned in Chigwell, Essex. In 2003, they moved to a cottage elsewhere in Chigwell, and in 2006 they moved to a third property in Chigwell, the house at 14a Forest Terrace where Mrs Greaves is still living now.
Leslie and Mrs Greaves each had two children from their marriages. The elder of Leslie's children, Gary, was born on 26 March 1960 and is the defendant to the present proceedings; Mark, Leslie's younger son, was born on 17 June 1961. Mrs Greaves' son is likewise called Mark. She also has a daughter, Mrs Jane Mathias.
By the time Mrs Greaves came to know Leslie, he was no longer working on a full-time basis. He was a chartered surveyor and in earlier years had had an estate agent's business. From about 1988, however, Leslie worked relatively little, though he would undertake property transactions from time to time.
For her part, Mrs Greaves had two jobs as a part-time receptionist when she met Leslie. She gave up work once she and Leslie were in a relationship. Thereafter, Leslie made monthly payments to Mrs Greaves by way of housekeeping allowance. From 2006 onwards, the payments were of £1,000 a month.
By the late 1990s, Leslie had been a client of Montlakes for many years. The position changed after Leslie had become involved in some litigation about a development on the Isle of Wight. The case ended badly from Leslie's point of view and cost him a great deal of money: Mrs Greaves said that he told everybody that he had lost £0.5 million. Leslie had allowed the claim to proceed to trial despite being advised by Montlakes and counsel that there was a real possibility of defeat: as Mr Michael Bonehill, Montlakes' senior partner, explained in cross-examination, "on anything involving litigation [Leslie] had problems … in that he had a very large ego, and whatever his opinion was on a subject matter was right". None the less, Leslie did not instruct Montlakes on any new matters for some time. For a while, Leslie and Mr Bonehill, who had hitherto been close friends, did not meet socially, either. However, they resumed their friendship a year or two after the Isle of Wight debacle. Montlakes continued throughout to be instructed by Mark. They also, though to a far smaller extent, undertook work for Gary.
On 3 December 2001, Leslie made the Will. This provided for Gary to receive the whole of Leslie's estate if he survived his father, failing which the entire estate was to pass to Mark. Gary was also named as the sole executor and trustee.
The Will did not include any provision for Mrs Greaves. Leslie did, however, refer to Mrs Greaves in manuscript notes he made about his estate. A note dated 23 April 2001 that Leslie gave to his sons listed various assets, including the flat where he and Mrs Greaves were living at the time. In respect of this, Leslie wrote, "Pauline remains as agreed". Later in the note, he said, "Give Pauline £25,000 + £1500 per month for 5yrs. Or if she prefers £100,000". In another note, dated 21 October 2004, Leslie wrote, "give Mini to Pauline or Mercedes if she wants it" and:
"Give Pauline £150,000 + car + £900 per month until she dies or cohabits or marries?"
In the latter part of 2007, Leslie wrote out and signed a document described as a "codicil" dealing with provision for Mrs Greaves. This document ("the Purported Codicil") read as follows:
"This is a codicil to the will of Leslie Stolkin leaving his estate to Gary Stolkin
The transfer of the estate is subject to the following conditions [:]
(1) Mrs P. Greaves can remain at the above property [i.e. 14a Forest Terrace, where Leslie and Mrs Greaves were both living] for as long as she likes paying only the normal bills
(2) The estate of Gary Stolkin will pay Mrs P. Greaves £1000 (one thousand pounds) each month for as long as she lives on the 1 st of each month
(3) If Mrs Greaves does not wish to remain in the house she shall give 3 months notice whereupon she can purchase an alternative property to the value of £375,000 in the name of Gary Stolkin and condition (1) will apply
(4) Mrs Greaves will retain the car she is driving at the time of death
(5) In the event of cohabitation by Mrs Greaves other than with her son or daughter this codicil is extinguished".
The date with which the Purported Codicil was headed is 14 October 2007. At the foot of the document, the signatures of Leslie and Gary appear next to the date "2.11.07". Leslie and Gary are stated to have signed "in the presence of each other".
Gary explained in evidence that his father had asked him to sign the Purported Codicil when visiting his flat. His recollection was that his father had said something along the lines of "Pauline wants to know that she'll be okay and can stay in the house". Leslie took the original document home with him, but he gave Gary an envelope containing an unsigned copy of it. Gary said that he did not read the Purported Codicil until the evening of 5 August 2009, the day on which the Disputed Codicil was executed.
It is common ground between the parties that the Purported Codicil does not comply with the requirements of a legally enforceable codicil. Leslie's signature was not made or acknowledged by him in the presence of two witnesses.
A number of those who gave evidence in these proceedings referred to Leslie having spoken to them about provision for Mrs Greaves. Mrs Greaves's son Mark said that Leslie had told him that he had arranged for Mrs Greaves to be looked after when he was gone. Mrs Jane Mathias, Mrs Greaves' daughter, said that Leslie had told her that her mother would "live and die" in Forest Terrace and that he had provided for her to receive a monthly allowance. Various friends of Leslie also testified to having been told about provision for Mrs Greaves. Mr Leslie Budge said that Leslie had indicated to him on more than one occasion that he intended Mrs Greaves to be able to continue to live in the Forest Terrace house. Mr Jack Petchey said that he too had been given to understand that Leslie intended to ensure that Mrs Greaves would be comfortable after his death. Mr Tommy Walker and his wife Mrs Susan Walker both said that they had been told by Leslie that Mrs Greaves would be able to live in the Forest Terrace house for the rest of her life and also have a monthly income. Mr Sidney Jefcoate, who has died but from whom I have a witness statement, said in it that he had been told by Leslie that Mrs Greaves would have the benefit of a home for life and an income to maintain her. Mr Jim Casey, who has also died, stated in a witness statement that Leslie had expressed the wish that Mrs Greaves should live the rest of her life in the Forest Terrace house. Mr Norman Raven, a cousin of Leslie who was called by Gary, gave evidence to similar effect. He said that Leslie had told him two or three years before his death that he had provided for Mrs Greaves to have the house for life.
Especially towards the end of his life, Leslie would drink to excess. Leslie had evidently drunk quite heavily for some years, but Mr Bonehill observed that "in later years his drinking...
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