Samuel Arthur Jones v Neal Tracey
| Jurisdiction | England & Wales |
| Judge | Master Marsh |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 2242 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2021-000920 |
[2023] EWHC 2242 (Ch)
Master Marsh (Sitting in Retirement)
Case No: PT-2021-000920
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Rose Fetherstonhaugh appeared on behalf of the Claimant
FIRST, SECOND AND SIXTH DEFENDANTS appeared in person
Graham Stott appeared on behalf of the Third Defendant
TRIAL 10–13 JULY 2023
JUDGMENT 14 JULY 2023
THE MASTER: This is my judgment on the trial of this claim in which the claimant, Mr Jones, seeks a grant in solemn form under the will of David Charles Turner dated 21 February 2013. Mr Turner died on 20 August 2017; so nearly six years have now passed since his death without the devolution of his state having been resolved. The original will has not been found and a grant of probate is sought based upon a copy of the will. There is no dispute that (a) the will was validly executed (b) at the material time Mr Turner had testamentary capacity and (c) Mr Turner did not make a will subsequent to the 2013 will. The question for the court is whether Mr Turner revoked the 2013 will. The claim is opposed by the third defendant, Linda Cano, who is Mr Turner's sister. She relies upon the presumption of revocation and seeks an order pronouncing against the 2013 will and in favour of an intestacy. In that event, she would inherit Mr Turner's entire estate.
Mr Turner was born on 15 July 1946. He suffered from polio in childhood from which he had a moderate degree of disability. He married but divorced in 1998. He later formed a relationship for some years with Elizabeth Amer, but that relationship broke down in 2012 and it appears there was a considerable degree of acrimony between them. Mr Turner had no children of his own. He died prematurely of a brain tumour.
Mr Turner lived at Woodside Farm in Bittams Lane, Chertsey, Surrey. Woodside Farm comprised, before the building of the M25 motorway, a modestly-sized bungalow with a number of outbuildings and a holding of land of about 15 acres. Mr Turner's father ran a pig farm and a livestock transport business there. But when the M25 was built, part of the land was acquired for that purpose, and the holding of land was split, leaving a significant area of land on the opposite side of the motorway from the bungalow and outbuildings. As a consequence, the farm business closed.
At the time Mr Turner made his will in 2013, he was the registered sole proprietor of Woodside Farm under Land Registry title SY192231. That holding comprised the bungalow and some ten outbuildings in various states of repair. The total area of land in the title is about 1.5 acres. In addition, he had a joint interest in three plots of land totalling about 14 acres (“the Woodside Farm Land”) under title numbers SY677389, SY674057 and SY542518. He jointly owned that land with a company named Primhill Limited of which the director was Mr Bhalla. Primhill Limited became the joint owner of the Woodside Farm Land after the third defendant sold her interest in the land to a third party. That interest was then acquired by Primhill, which is a commercial land developer and completely unconnected with the Turner family. The Woodside Farm Land may have significant value for development.
Mr Turner appears to have been a gregarious man with a love of guitars, music and cars. He was also keen on shooting. He had a close circle of male friends, some of whom gave evidence at the trial. His friends with a common interest in music (and that was most of his friends) regularly gathered in what has been described, perhaps a little grandly, as the ‘music room’, which was an outbuilding forming part of the farm. In the music room, music of the style enjoyed by Mr Turner and his friends was played and recorded, and clearly there was a generally convivial and enjoyable atmosphere with much conversation. It may not be right to say that Mr Turner held an open house, but the evidence suggests that he never locked his house, whether day or night, and friends would regularly come to see him.
It is sad to say that Mr Turner had a poor relationship with his sister Linda. It is not in doubt or indeed disputed that he became estranged from her from about 2008, the estrangement arising out of the sale of Linda's interest in the Woodside Farm Land following the death of their mother. It is not necessary to go into the reasons for the estrangement in any detail.
The 2013 will contained the following provisions:
(1) The first defendant, Mr Tracey, and the second defendant, Mr Burt, were appointed joint executors. They were longstanding and trusted friends of Mr Turner.
(2) The British Polio Fellowship was given a legacy in the sum of £5,000.
(3) Mr Christopher Strotton, who was Mr Turner's business partner, received a legacy of £10,000 and Mr Turner's half share in their joint business, Acorn Skip Hire. The British Polio Fellowship and Mr Strotton are the fourth and fifth defendants in this claim.
(4) The other pecuniary legacy was a gift to the sixth defendant who is Elizabeth Amer's daughter, from whom Mr Turner was not estranged. She was left any interest Mr Turner had in a ransom strip in Farnborough, Hampshire.
(5) The main provision of the will was that Mr Turner's residuary estate, including Woodside Farm and the Woodside Farm Land, was given to Mr Jones, the claimant in these proceedings. Mr Jones was clearly (and the evidence points unequivocally in this direction) a close friend of Mr Turner over a lengthy period of time.
(6) Mr Tracey, although appointed an executor, did not benefit under the will. Mr Burt was left Mr Turner's collection of musical instruments.
(7) Significantly, the third defendant was left nothing under the will. Clause 5 of the will states:
“I have made no provision in this will for Elizabeth Amer or my sister, Linda Maria Carno, as I disapprove of the way they have treated me during my lifetime.”
Before going further, it is necessary to record that on Friday 7 July 2023 (the Friday before the trial commenced) the third defendant applied to adjourn the trial. There had been previously a costs and case management conference in November 2022, and directions were given for disclosure, exchange of witness statements and for the trial. It is said by the claimant that the third defendant has shown a somewhat casual approach to compliance with the requirements specified in that order, but nothing for today's purposes turns on that. I need only to record that the third defendant did not exchange signed witness statements with the claimant pursuant to the order made at the CCMC, and it was only at the trial that signed copies of the statements she relied upon were produced.
On Friday, 7 July 2023 the third defendant made an application with three elements, the principal element being her application to adjourn the trial on the basis that she could not fly to England from where she lives in Spain for medical reasons. It is accepted that, unfortunately, the third defendant suffers from Parkinson's disease. However, her application was based upon very slender medical evidence which was not in a form that complied with the requirements set out clearly in the Chancery Guide. Her ability to fly was not determined at the hearing due to the limited nature of the evidence. Although it was said the third defendant could not travel, it was not suggested that she was unable to give evidence. As a consequence, rather than adjourning the trial, an order was made permitting the third defendant and her husband to give evidence by video link, subject to the third defendant satisfying the court that under Spanish law this was permitted or after obtaining approval from a Spanish court. Clearly it was unattractive to adjourn the trial, particularly as it was based upon inadequate medical evidence, since there was a prospect that the third defendant might be unable to give evidence in future if her condition deteriorated. Furthermore, as I have noted, the sixth anniversary of Mr Turner's death is in August 2023 and title to the estate needed to be resolved so that it can be administered without further delay.
The third defendant sought two further orders. The first was an order for third party disclosure in respect of a file held by the Verisona Law relating to legal work carried out on behalf of Mr Turner between 2013 and 2016 concerning Woodside Farm and the Woodside Farm Land. She also sought an order for witness summaries to be permitted in respect of evidence to be provided by the first and second defendants. The order for third party disclosure was made, but on the clear basis that if there was a delay in compliance it would not hold up the trial. The application for witness summaries was refused. The application as it was framed was inappropriate, but in fact, as I will come on to explain, Mr Tracey and Mr Burt gave evidence at the trial.
At the trial, the claimant was represented by Rose Fetherstonhaugh and the third defendant by Mr Graham Stott. Mr Tracey and Mr Burt have been in court throughout the trial, acting in person, but they have opted not to make submissions. The fourth and fifth defendants did not attend the trial at all. The sixth defendant attended with a view to providing assistance to the court and gave evidence. I would like to record my thanks to both counsel for their assistance and also record that I am...
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