Re Cameron, decd
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lindsay |
| Judgment Date | 24 March 1999 |
| Judgment citation (vLex) | [1999] EWHC J0324-12 |
| Docket Number | CH 1996 C No. 1199 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 March 1999 |
[1999] EWHC J0324-12
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Hon. Mr. Justice Lindsay
CH 1996 C No. 1199
In The Matter of The Estate of Marjorie Landgon Cameron Deceased
Theresa Rosen Peacocke instructed by Mills & Reeve for the Plaintiff
Nicole Sandells instructed by Bell & Howe for the 1st Defendant
Elspeth Talbot Rice instructed by Radcliffes for the 2nd, 3rd and 4th Defendants
Hearing date: 25th-29th January 1999
Draft/ JUDGMENT
This is the official judgment of the court and I direct that no further note or transcript be made.
The Honourable Mr Justice Lindsay
Mr. Justice Lindsay
I have before me an Originating Summons and Counterclaim which raise questions on the subject of the ademption of a gift by will by a subsequent lifetime gift. Ademption of such a kind is a subject that appears, so far as concerns reported cases, to have lain undisturbed for half a century and there is no authority at all dealing with the context before me in which the subsequent lifetime gift was made under the Enduring Powers of Attorney Act 1985. I shall first set out the position on the facts. I have received both written and oral evidence. I have also received, over a protracted period, further written submissions from the parties directed chiefly to a number of authorities not dealt with at the hearing.
THE FACTS
James Cameron, a medical doctor, and his wife Marjorie Cameron had four children only, all sons. The eldest, Donald (the First Defendant) was born on the 6th April 1940. Iain (the Fourth Defendant) was born on the 13th July 1943, Alastair (the Second Defendant) on the 8th August 1945 and Hamish (the Third Defendant) on the 12th October 1952. In 1945 those sons' grandfather, William Cameron, made Settlements for the benefit of Donald, Iain and Alastair respectively. The trustees of those Settlements had power to apply income for the maintenance, benefit or education of the respective grandchild concerned. In 1954 a similar Settlement by his grandfather was made for the benefit of Hamish. The papers in the case also disclose the existence (but not fully the terms or property affected by) a number of other trusts the benefits of which were enjoyed by the family—"the H.L. Webb Settlement—Marjorie's fund"; the "Doctor and Mrs Cameron Marriage Settlement"; the "Mr and Mrs H.L. Webb Voluntary Settlement—Marjorie's accrual share"; the "H.L. Webb deceased—Marjorie's fund" and the "Mrs F.J. Webb deceased—Marjorie's fund". A common feature appears to have been that capital would become distributable amongst children of Marjorie Cameron equally at 21 or marriage in the absence of appointment to the contrary. The children of Doctor and Mrs Cameron, if not rich, were at least prospectively well provided for.
All of the four sons were educated at fee-paying schools. Three went to Charterhouse.
In May 1967 their father died, survived by his widow. On the 6th June 1974 Mrs Cameron, who had moved to a house at 109 Abbotsbury Road, London, W.14, made her will. She appointed J.M. Crossman, her solicitor, and her son Iain as executors and trustees. There were no specific devises or bequests and the whole of her net estate was, as residuary estate, divided into four equal shares, one each absolutely for each of her sons who should be living at her death with a provision that if any should die in her lifetime leaving a wife or child or children him surviving then such a wife would take the income of the share for her life and, subject thereto, such child or children would take in equal shares upon attaining the age of 18 years of age. There was a provision that any share as to which the primary trusts failed would be added equally to the other shares. The will, in other words, provided for the four sons equally with some provision for stirpital equality to be maintained should any predecease the Testatrix. Alastair's evidence, which I accept, is that his mother was very fair and frequently stated that it was her desire and intent to treat all four of her sons equally.
In 1979 Marjorie Cameron, the mother, was diagnosed as having progressive diffuse moderate cerebral atrophy. There were some days that were better than others but, as the description of her condition suggests, it was progressive and there was, over a period of years, a progressive deterioration in her mental capacity.
In time three of her sons married; on the 6th April 1977 Iain married Valerie; on the 5th July 1980 Donald married Helen and on the 27th June 1981 Alastair married Dawn. Hamish remains unmarried. On the 27th November 1982 Donald and Helen's son, Donald James Hugh Mark Purdy Cameron, known in the family as "Jamie", was born, Marjorie's first grandchild. Alastair and Dawn later had two daughters, Alexandra and Hannah. Iain and Valerie have had no children. Jamie thus remains Marjorie's only grandson.
By the early 1980s each of the married sons had his own separate house but Hamish was living at Abbotsbury Road with his mother who, by then, needed a good deal of supervision and assistance, which he provided.
In April 1984 Helen left Donald and took Jamie with her. There is a conflict as to the evidence of Donald's circumstances at this time. Earlier he had undoubtedly been earning an excellent remuneration, partly salary and partly commission, as a computer salesman, but his brothers paint a picture in which by now he was a spendthrift coming to the end of his resources, drinking heavily, sometimes unemployed and importuning his mother for money. Donald says otherwise. There was some oral evidence of Donald importuning his mother for the price of gin. Moreover, whilst I can quite see that in the course of their passage from Mrs Cameron to her doctor and from the doctor to solicitors acting for Mrs Cameron and on from those solicitors to Donald, messages and intentions may have become misunderstood or exaggerated, it is a remarkable feature that on the 11th May 1984 Messrs Theodore Goddard, writing as Mrs Cameron's solicitors after discussion with her doctor, wrote to Donald asking him not to call at his mother's house and not to communicate with her except when specifically asked to do so. The letter made it clear that Alastair and Hamish knew of the letter and agreed to its being sent to Donald. On the evidence I have no doubt but that by the time that Helen left him and for a good while thereafter Donald could fairly be seen as an improvident man who was occasionally drinking to excess, who had already got through a good deal of his own share of family money and who was from time to time pestering his mother for more.
In 1984 Helen filed a petition for divorce from Donald claiming that the marriage had irretrievably broken down. Donald has not seen Jamie since the separation. In November 1984 he left England for Spain, returning to England in early 1985. For a while his whereabouts had been unknown to his brothers. On his return he made an attempt at suicide and became an out-patient at a psychiatric hospital for about a year. He was treated for depression and intense stress and to this day he is prescribed anti-depressant drugs. Helen obtained a Decree Absolute on the 14th July 1986. Donald accepts that he has been in difficult financial circumstance since late 1988 although on the evidence I would put the date of the beginning of his financial difficulties earlier and certainly not later than the Spring of 1984.
Mrs Marjorie Cameron's condition continued to worsen and it was seen by Iain, Alastair and Hamish that it would be best that she should be moved to a nursing home. Her income was such that affording that presented no problems.
Mrs Cameron, although well educated, had not taken any part in the managing of her or the family's financial affairs; she came from a generation in which leaving such matters to a husband or to advisers was common and until Doctor Cameron's death in 1967 it was he who had managed the family money. Both Iain and Alastair became Chartered Accountants and by the time Mrs Cameron went to the nursing home she had for some while depended upon them, in particular, for advice in financial matters and had tended simply to act upon whatever advice they gave.
On the 18th March 1989 Mrs Cameron executed an Enduring Power of Attorney (the " EPA") . Under it Alastair, Hamish and Iain were jointly appointed to be her attorneys for the purpose of the 1985 Act with general authority to act on her behalf in relation to all her property and affairs. It is signed (in a firm and clear hand) by Mrs Cameron and sealed in the presence of a doctor. It has not been shown to me that any of the formalities required under the Act was lacking. I have no reason to doubt its formal validity.
On the 1st April 1989 Marjorie Cameron made the only codicil to her will of the 6th June 1974; Mr Crossman, who had been named in the will as an executor and trustee, had by then retired and in his place the Plaintiff, Peter David Phillips, Solicitor, was appointed to act jointly with Iain as executor and trustee. In all other respects the 1974 will was confirmed. Mr Phillips had worked at the same firm of solicitors as Mr Crossman and, at about the time the codicil was made, the firm's file in relation to the Cameron family was passed to him. He did not meet Mrs Cameron and did not advise her in relation to the EPA although he did check it for its formal validity. As dealings unfolded he dealt with Iain in correspondence and on the telephone as his chief point of contact on Cameron affairs both as a source of information and the person to whom he gave his advice.
Section 1 of the 1985 Act provides that a power of attorney under the Act is not revoked by any subsequent mental incapacity but that...
To continue reading
Request your trial