Richard Winter v Philip Winter

JurisdictionEngland & Wales
JudgeMr Justice Zacaroli
Judgment Date29 September 2023
Neutral Citation[2023] EWHC 2393 (Ch)
CourtChancery Division
Docket NumberCase No: PT-2021-BRS-000057
(1) Richard Winter
(2) Adrian Winter
(1) Philip Winter (as executor of the estate of Albert Henry Winter (Deceased))
(2) Clarke Willmott Trust Corporation Limited

[2023] EWHC 2393 (Ch)


Mr Justice Zacaroli

Case No: PT-2021-BRS-000057




Bristol Civil Justice Centre

2 Redcliffe Street


Bristol BS1 6GR

Hugh Sims KC and Michael Selway (instructed by Berensens Solicitors) for the Claimants

Alex Troup KC (instructed by Ashfords LLP) for the Defendants

Hearing dates: 18 th, 19 th, 20 th and 21 st July 2023

Further submissions filed on 17 th and 30 th August 2023

Mr Justice Zacaroli


The claimants, Richard Winter and Adrian Winter and the defendant, Philip Winter are brothers. The claim is brought to challenge the dispositions made by their father, Albert Winter, in his will dated 30 April 2015 (the “2015 Will”). For convenience, and without intending any disrespect, I will refer to the members of the Winter family by their forenames.


The principal asset in Albert's estate is his share in the market garden business which the family had operated together for many years. This had been operated since 1988 as a partnership, known as Team Green Growers (the “Partnership”) between Albert, his wife, Brenda, and the sons. The principal land from which the business operated, Bower Farm in Bridgwater, Somerset (“Bower Farm”), was owned by Albert and Brenda, but was the subject of a declaration of trust by them dated 29 March 2000 in favour of the Partnership. Other properties were later purchased by the Partnership.


On Brenda's death on 13 April 2001, her share in the Partnership vested under her will date 29 March 2000 in Richard, Adrian and Philip in equal shares. The residue of her estate passed to Albert.


The Partnership was thereafter in practice continued between Albert (who had a 20% share) and the sons (each of whom had a 26.66% share) but in January 2004 the business (but not the property) was transferred to a company, Team Green Growers Ltd (the “Company”), of which Albert and the sons were equal shareholders.


Albert died on 17 July 2017. By the 2015 Will he left a gift of £20,000 to his then partner Diana Turner and left the residue of his estate – including his interests in the Partnership and the Company – to Philip.


The claim is put on two principal bases.


First, the claimants contend that Brenda and Albert made mutual wills in the same terms as the will Brenda made in 2000. Although the executed version of the will Albert made on 29 March 2000 has not been found, it is common ground that he then made a will in terms that were materially the same as Brenda's 2000 will. It is contended that Albert's estate is subject to a constructive trust to give effect to the terms of his will of March 2000.


Second, the case is put on the basis of proprietary estoppel. The claimants contend that Brenda and Albert made numerous assurances to them to the effect that, if they committed their lives to working in the family business, the parents would leave everything (or, at least, their share of the land and farming business) to the sons equally, and that Richard and Adrian relied to their detriment on those assurances.


The case as pleaded was also put in the alternative on the basis of constructive trust. During the course of the hearing, however, it became clear that this added nothing to the proprietary estoppel case, and it was not pursued in closing. A further pleaded case based on contract to make a will was also not pursued. Finally, and in the alternative, the claimants seek to enforce an option to purchase Albert's share under the Partnership agreement.

The background facts


In this section, I set out the essential background facts which, unless otherwise stated, were not in dispute.


Brenda and Albert were married in 1964. Richard was born in 1966, Philip in 1967 and Adrian in 1968. In 1964 Albert purchased Bower Farm. The family lived in a bungalow on the farm, and Albert and Brenda ran a market garden business, specialising in lettuces, from it. In about 1988 Bower Farm was transferred into the joint names of Brenda and Albert.


From a very early age, the three sons helped with work on the farm. The sons gave slightly differing accounts of how arduous life was: Philip insisted that these were happy times with plenty of time for other activities; Richard and Adrian emphasised the lack of holidays and Albert's authoritarian approach to parenting. I have no doubt that the work was hard and the hours were long, after school, at weekends and in the holidays, but that there was nevertheless time for pursuing some other leisure activities.


After the sons left school, they continued working in the business, but now full time. Numerous witnesses spoke of the strong desire expressed on many occasions by Brenda that the boys would be fully involved in the family business, working for the common good of the family.


The sons did indeed devote their lives to working in the family business, apart from two occasions.


The first involves Richard, who wished to join the military after school. He was, however, invalided out of the Parachute Regiment during initial training, and then abandoned his plans to join the Royal Marines, in favour of working on the farm. Although Philip disputes the extent to which Richard would have chosen the farm over the Marines in any event, and Richard himself says that by this time he was in a committed relationship with Paula, who subsequently became his wife, I am satisfied that at least part of the motivation for remaining on the farm was Albert's attitude that if Richard chose the Marines, then he would be cut off from the family whereas, if he stayed and committed to building the business, he could expect to share in it.


The second involves Adrian. After a falling out with Albert, in 1996 he left the business to work at the Royal Ordinance Factory for a few months. This was followed by other sundry jobs, before returning to work in the family business. Again, while there were no doubt contributing reasons for Adrian's return, I am satisfied that part of the motivation for coming back was the fact that his father had made it clear to him that if he left, then he would lose any share in the business.


In 1988, and in part as a response to Richard's plea that arrangements be formalised following his decision to commit to the business rather than the Marines, Albert and Brenda formed the Partnership. They did so without consulting the sons, simply telling them that it had been done, and that they now all had a 1/5 share in the business.


Between 1988 and 1991 each of the sons purchased, together with their partners (who subsequently became their wives), a home to live in.


In the late 1990s, the Partnership business changed from lettuces to strawberries. That continued to be the main business of the Partnership until Albert's death in 2017.


In 2000, the beneficial interest in Bower Farm was transferred to the Partnership, pursuant to the deed of trust executed by Albert and Brenda. On Brenda's death, a year later, Brenda's share in the Partnership passed to the sons (so that they each now had a 26.66% share in the Partnership, with Albert having the remaining 20% share), pursuant to her will dated 29 March 2000.


Although there is much in dispute over the precise nature of the assurances made by Albert and Brenda, it is not disputed that it was Albert's desire for each son to have his own farm. With that aim in mind, over the course of the next few years the Partnership acquired two other farms. In October 2001, a farm at North Newton, which subsequently became known as “One Tree Farm” was purchased in the name of the Partnership. In 2009, using Partnership funds, a new 4-bedroom farmhouse was built on One Tree Farm, which became Adrian's home. In July 2008, the Partnership acquired a further farm (“Barton Farm”), which became Philip's home. In 2011, with the benefit of funds borrowed by the Partnership, a new 4-bedroom farmhouse was built on Bower Farm, which became Richard's home.


Until about 2013–2014, relations between the sons, and between them and Albert, remained on the whole good. Although Albert and the sons were equal partners, important decisions were left to Albert and Brenda (and to Albert after Brenda's death). It was common ground that, although Albert held only one quarter of the shares in the Company, until about 2014 he exercised effective control over its affairs.


Although the parties each sought to place a different emphasis on the extent to which the sons received benefits from their involvement in the business, it is clear that, until about 2015, the sons were paid relatively little for their work. From a base position of between £100-£200 per week in the early 1990s, the amount that each son received (by way of drawings, whether from the Partnership or the Company) rose thereafter to £700 per week between 2009 and 2015. In addition, however: they lived in their respective properties at well below market rent (£100 per week from 2009 onwards); their tax and national insurance liabilities were paid by the business; they had the use of company cars; they received (albeit in relatively small amounts) further payments from time to time from amounts set aside in cash from the flower business; and they had free holidays at a static caravan their parents bought in Exmouth in 2000.


Most significantly, as the business grew in size, and profits increased, each of the sons had an entitlement to an equal share (with their parents) in the profits generated (first in the Partnership and then in the Company). Aside from the drawings I have already mentioned, however, until 2015 all...

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