Randall v Randall
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWHC 2258 (Ch) |
| Docket Number | Claim No: HC03C02986 |
| Court | Chancery Division |
| Date | 30 July 2004 |
[2004] EWHC 2258 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Claim No: HC03C02986
Hearing dates: 10–14 and 28 May 2004
APPROVED JUDGMENT
EDWARD BARTLEY JONES QC
Introduction
This is a sad, and unfortunate, dispute between two brothers. It concerns various gifts made by the late Madeleine Ada May Taylor ("the deceased") to the defendant ("Philip"). The claimant ("Geoffrey") is Philip's younger brother. Both are nephews of the deceased. By these proceedings Geoffrey seeks to have all the gifts made by the deceased to Philip set aside, primarily on the basis of presumed undue influence.
The deceased was born on 17 July 1913. She died on 25 February 2001 at the age of 87. She had been married to a John Percy Taylor ("Uncle John") who had died intestate on 7 November 1991.
The deceased had no children. She did, however, have two sisters. One, a younger sister, was Mrs Phyllis Isabelle Burns ("Mrs Burns"). Mrs Burns married a Mr Patrick Burns ("Mr Burns") in 1962. However, both Philip and Geoffrey are her only children (and by an earlier marriage). The deceased's other sister was Joyce Mabel Shorrock ("Mrs Shorrock"). Mrs Shorrock had emigrated to Australia many years ago (although, as Mrs Burns told me in evidence, she kept in touch and the deceased was fond of her). Mrs Shorrock had two children, both in Australia, namely Lynda Phelan and Glenn Shorrock. Both are of full age. A further person who features, briefly, is Eileen Farahar (who was the niece of Uncle John).
The present action was commenced by claim form dated 15 August 2003. The primary relief sought thereby is to set aside the four gifts made by the deceased to Philip to which I shall refer below. In the alternative, it is claimed that Philip holds some, or all, of the land the subject matter of these gifts on certain trusts. I will deal with the trust claim at the end of this judgment. Suffice to say, at present, that the trust claim seems to me to be entirely without merit.
This is the third action between Geoffrey and Philip. On 21 May 2003 Geoffrey issued proceedings seeking administration of the estate of the deceased. On 2 June 2003 Philip issued proceedings claiming similar relief. The circumstances in which both these two sets of proceedings came to be issued will be set out below. There is now a threat of a fourth action by Geoffrey against Philip (as executor of the deceased). In essence, in that fourth action it is likely to be suggested that Philip has misadministered the estate of the deceased. It is also possible that, in that fourth action, a claim will be made against Mr Addis, a solicitor acting for Philip as executor of the estate of the deceased. It seems to me to be important, therefore, that I should confine myself, as far as I am able to do so, to the issues which arise in this action. I am conscious that I have not heard full submissions as to the issues which arise in the first and second actions, nor as to the issues which might potentially arise in the fourth action. Even more so is this the case as Mr Addis gave evidence in respect of the issues which arise in this action. He was but a witness and, of course, not represented by counsel nor able to make submissions. It would be entirely unfair to him were I to trespass further than I should into issues which might arise in the fourth action.
It goes without saying, from the above summary, that no love whatsoever is now lost as between Geoffrey and Philip. It was, however, not always this way. It is the issues which have arisen in this action, combined with what Philip is alleged to have done as executor of the deceased, which have caused these difficulties.
The deceased's landholding
The starting point is to describe the deceased's landholding immediately after the death of Uncle John. All of Uncle John's interest in the land I shall now describe passed, on his death, to the deceased by survivorship.
Following the death of Uncle John, the deceased was the freehold owner of a roughly rectangular area of land at Golden Hill, Whitstable, Kent. The area of land could more easily be understood by reference to a plan but a verbal description (which, of necessity, must contain certain inaccuracies not material to my decision) will have to suffice. The land lay to the east of a road, or lane, known as Golden Hill. On the northerly part of the land, running approximately half the length of the northern boundary, was the house and garden known as Homewood, 51 Golden Hill ("Homewood"). To the south of Homewood was the house and garden known as Drumfin, 53 Golden Hill, ("Drumfin"). To the south of "Drumfin" was a redundant chicken farm. The rear boundaries of all three properties ran in, roughly, a straight line aligned one to the other. To the rear, and east, of all three properties was a large field. This field (to which I will refer as "the brown land") abutted on to the Joseph Wilson Industrial estate to its east. The deceased lived in Homewood. Mr and Mr Burns lived in Drumfin, as tenants of the deceased. The redundant chicken farm (to which I shall refer as "the blue land") had previously been utilised by the deceased and Uncle John as a working chicken farm. But business had proved bad and they had given up that activity a number of years before Uncle John's death.
The deceased had a considerable affection for animals, in particular her donkeys. Certainly the brown land, and perhaps also part of the garden of Drumfin and part of the blue land, was used for the stabling, and grazing, of her three donkeys.
To the north of the deceased's property, running the whole length of its northern boundary, lay land owned by a Mr Stuart Simmons (No 49 Golden Hill). Mr Simmons's land abutted on Golden Hill to the west and the Joseph Wilson Industrial estate to the east.
I have already referred to Drumfin as being occupied by Mr and Mrs Burns as tenants of the deceased. Initially, they had owned their own bungalow in Whitstable but, subsequently, the deceased had suggested that they should move into Drumfin as tenants. I was shown rent books showing that the tenancy commenced on the 23 May 1969 and that the rent was, initially, £14 per month. That was increased to £20 per month as from the end of July 1982. The rent books show the deceased signing to acknowledge receipt of the rent up to 16 August 1997. Thereafter, the rent book shows the payment of £20 per month until 27 December 1997 (but with no acknowledgment of receipt signed by the deceased). Quite what happened after that date is not clear to me but Mrs Burns's evidence to me, which I accept, was that after she moved from Drumfin to Homewood, in 2000, she did not pay any rent for Homewood because she did not know whom to pay.
Basic structure
I must, now, set the scene by setting out the basic structure of what occurred after the death of Uncle John.
The affairs of Uncle John were in considerable disarray on his death. For example, he had not submitted any income tax returns since the year 1983/84. It was thought that he had substantial assets, over and above his interest in the land at Golden Hill, but these were never traced. So, in addition to her natural distress at loosing her husband, the deceased was faced with major difficulties over his estate. Philip assisted the deceased over these matters. I shall have to come, in greater detail below, to the nature of the advice and assistance Philip offered and the nature of his relationship with the deceased.
On 28 March 1992 the deceased made a will, utilising the services of a Mr Cook, a solicitor then with the firm of Wilkinson Cooper of Wadhurst. Briefly summarised, by this will ("the 1992 will") the deceased appointed Mr Cook and Philip to be her executors and Trustees. By clause 4 she provided that if she should not, prior to her death, already have gifted Drumfin to Mrs Burns then she gave the same to Mrs Burns absolutely (with a substitution gift over in the event of pre-decease to Philip and Geoffrey equally). The deceased gave Homewood and her personal chattels to Philip and Geoffrey in equal shares (with a substitution gift over in favour of their respective children in the event of predecease). The residue of her estate, subject to payment of her funeral testamentary and other expenses —which included any tax payable on either Drumfin or Homewood —the deceased gave to be divided into four shares with one-quarter going to Mrs Shorrock, one-quarter going to Lynda Phelan, one-quarter going to Glenn Shorrock and one-quarter going to Eileen Farahar.
It was Mrs Burns's evidence before me, which I accept, that she enjoyed a close relationship with the deceased. That is not to say that they did not, on many occasions, argue. Indeed, I have no doubt but that the deceased frequently imposed upon Mrs Burns and her husband. They were required to help with the donkeys, and muck out. They were required to assist the deceased, eg with her shopping. It was Mrs Burns's evidence to me, which again I accept, that because of what was said to her, and her husband, by the deceased and Uncle John that she expected to inherit Drumfin on the deceased's death. The 1992 will reflects that fact.
By a transfer dated 6 October 1995 the deceased transferred the blue land to herself and Philip as beneficial joint tenants by way of gift. This transfer was prepared by Mr Addis, a partner in the firm of Furley Page (formerly Furley Page Fielding & Barton) of Whitstable. This is the first transaction which Geoffrey seeks to have set...
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