Raymond Allen James v (1) Karen James

JurisdictionEngland & Wales
JudgeHHJ,Paul Matthews
Judgment Date19 January 2018
Neutral Citation[2018] EWHC 43 (Ch)
CourtChancery Division
Docket NumberCase No: A30BS586
Date19 January 2018

[2018] EWHC 43 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Before:

HHJ Paul Matthews

(sitting as a Judge of the High Court)

Case No: A30BS586

Between:
Raymond Allen James
Claimant
and
(1) Karen James
(2) Serena Underwood
(3) Sandra James
Defendants

Penelope Reed QC and Edward Hewitt (instructed by Wilsons Solicitors LLP) for the Claimant

Steven Ball (instructed by Burges Salmon) for the Defendants

Hearing dates: 18–21, 25–27 September 2017

Judgment Approved

Paul Matthews HHJ

Introduction

1

This is my judgment on the trial of a claim arising out of the will of Charles Frederick Allen James. He was born on 25 May 1931 and died on 27 August 2012, aged 81 years, having made a will dated 16 September 2010. The claimant is his only son, Raymond Allen James, commonly called “Sam”. The defendants are his two sisters, Karen James and Serena Underwood, and his mother, Sandra James. Without intending any disrespect, I shall refer to family members by their first names. The testator and Sandra were married in 1957. They have two daughters. Karen is not married and has no children. Serena has been married and is now divorced, and has three children.

2

The testator was in effect a self-made man. He built up a farming and haulage business in Dorset, acquiring a number of parcels of farmland along the way. In 2007 he gave away some of that land to Karen, and in 2009, on the dissolution of the farming partnership between himself, Sam, and Sandra, the testator transferred another parcel of land, and the haulage business, to Sam. By the will of 2010 he left the remaining land (and the residue of his estate) in the events that have happened to Sandra, Karen and Serena, but nothing to Sam. In outline, Sam says, firstly, that the will was invalid on the ground of the testator's lack of testamentary capacity, and secondly (and in any event) that he was entitled to the land left by the will and also the greater part of the land given to Karen, by virtue of a proprietary estoppel equity in his favour.

3

The claim was commenced by claim form issued on 22 May 2014 in the Chancery Division of the High Court in London. Statements of case were filed and served on both sides. On 30 September 2014 Master Bowles by order transferred the claim to the Bristol District Registry, where it has been case managed ever since. The claim has however been tried at the Rolls Building in London, as a result of the flood at the Bristol Civil and Family Justice Centre in June 2017, which caused a temporary lack of suitable courtroom space in Bristol itself. At the trial Penelope Reed QC and Edward Hewitt, instructed by Wilsons Solicitors LLP, appeared for Sam, and Steven Ball, instructed by Burges Salmon LLP, appeared for Karen, Serena and Sandra. I am grateful to them all for their measured and helpful submissions.

The land

4

The land with which I am concerned lies on either side of the A30 road, between East Stour and Shaftesbury, south of Gillingham in Dorset. It comprises five parcels, of which four are contiguous. All were originally acquired by the testator in his own name. The one that is separate is called Chequers. It lies to the south of the A30, and is the most westerly parcel. It was acquired by the testator in spring 1961. In October 2009, as I have said, it was transferred to Sam and his wife Rachel, as part of the dissolution of the family partnership. They sold it to third parties in November 2016. The second parcel to be acquired was Pennymore Pitt Farm, in 1966, although a part of this land, called Miller's Field, was only acquired much later. Pennymore Pitt Farm is bisected by the A30. In November 2009 the testator executed the necessary form TR1 to transfer the title into the joint names of the testator and Sandra. It was registered at the Land Registry in January 2010.

5

Immediately adjacent to the east (but lying to the north of the A30) is a parcel known as Black Venn, or Hoskins, which was acquired by the testator in 1976. Adjacent to the east of that is Lox Lane, acquired by the testator in 1992. Adjacent on the north side of Hoskins is Framptons, or Lintern Lane, acquired in 2000. In 2007 Hoskins, Lox Lane and Framptons were transferred to Karen. Pennymore Pitt Farm, Hoskins, Lox Lane and Framptons were sometimes during the trial referred to collectively as “Pennymore”. I make plain at this stage that Sam makes no claim to Framptons. He accepts that that was bought for, and given to, Karen by the testator. His claim is to the rest of Pennymore.

6

At the time of making the 2010 will, the testator and Sandra, being then joint tenants of Pennymore Pitt Farm, executed a notice of severance of joint tenancy. Thus, at the testator's death in 2012, the legal title remained in Sandra alone, but (if the severance was effective) on trust as to one half for the testator's estate and as to one half for herself. The will provided for the testator's interest in that part of Pennymore Pitt Farm north of the A30 to go to Karen (who already owned the other land north of the A30), and for his interest in that part to the south to be held on trust for Sandra for life, with remainder to Serena. The residue of the estate passes to Sandra as she survived the testator. Had she not done so, ninety per cent of the residue would have been shared between the three children equally, with the remaining ten per cent being shared amongst the grandchildren.

Witnesses

7

I heard evidence from the following witnesses: Raymond (“Sam”) James, the claimant; Terry Huxter, Sam Baden Teversham, Leslie Burt, Gary Dunne, Andrew Mills, employees or business associates of the testator; Kelly James, Amanda Allard, Natalie Lewis and Samantha James, Sam's four daughters; Rachel James, Sam's wife; Karen James and Serena Underwood, Sam's sisters and first and second defendants; Sandra James, their mother and third defendant; Prof Robert Howard and Prof Robin Jacoby, expert witnesses for the claimant and the defendants respectively; Fiona Thomas and Roger Snowdon, both solicitors, and Ben Marshall, surveyor and land agent.

8

It may be helpful if I give my impression of the witnesses at this stage. I found Sam to be a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning. His frequent response to questions from counsel was “if you say so”. He said he did not remember a considerable number of meetings and other events which were stated in the written materials to have included him. I had the strong impression that this was often because he did not wish to do so. In relation to a number of documents, Sam interpreted what third-party professionals were saying in ways which they cannot have meant. For example, there is a letter from the accountant Mr Hardy dated 20 January 2003, where Mr Hardy referred to a meeting the previous week and reported on research he had promised to do, including on inheritance tax and capital tax planning. When it was put to Sam that this showed there was a possibility of the testator making gifts within his lifetime, Sam vehemently denied it. For him, this was just a suggestion by Mr Hardy, and there was no serious intention on the part of the testator to do any such thing.

9

For the most part, I think that Sam had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true. One was that he told me that he only found out at the beginning of 2009 that his parents had given land to Karen after he had signed the partnership agreement. Yet it is clear from letters and notes in the summer of 2008 from the solicitor Mr Snowdon to the testator and to the accountant Mr Christopher, taken together with the evidence of Mr Snowdon himself, that Sam was aware before then of the proposed transfer to his sister Karen. As a result, I found it difficult to place much reliance on what Sam said where it was not supported from an independent source.

10

Terry Huxter, Sam Baden Teversham, Leslie Burt, Gary Dunne, and Andrew Mills, the non-family lay witnesses, were all short, and subject to little or no cross-examination. They were all trying to assist the court and I have no doubt that they were telling the truth in what they said. But for the most part their evidence did not go to issues central to the case.

11

I turn to Sam's four daughters. Kelly James was quiet and calm. But she was unable to remember some points of detail. I saw no reason to doubt what she told me. Her sister Amanda Allard was also quiet and calm. Again I had no reason to doubt what she said. The third of the sisters, Natalie, gave evidence in a quiet tone. But she avoided eye contact and her body language suggested internal conflict. She rather doggedly insisted on answers to questions which supported her father, Sam. I am afraid that I harboured some doubts over her evidence. But her evidence is marginal. The last daughter to give evidence was Samantha James, who was rather shy, but clear and straightforward. I had no doubts about her evidence.

12

Their mother, Sam's wife, Rachel James, was also clear and straightforward in her evidence. But it was clear that, despite her loyalty to her husband, she was distressed by the litigation and wanted it to be over. I have no doubt that she was telling the truth, so far as she knew it.

13

Karen James, the first defendant, was a slow witness, with clear, trenchant views. She was not prepared to accept anything against what she perceived to be her interests, even where it was obviously correct. For example, she would not accept that the gift of Pennymore Pitt Farm to Sam was omitted from the first draft of...

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