Sandra Jump (First Claimant) Suzanne Jones (Second Claimant) v Harry Dow Lister (First Defendant) Forresters Solicitors Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hodge QC |
| Judgment Date | 12 August 2016 |
| Neutral Citation | [2016] EWHC 2160 (Ch) |
| Date | 12 August 2016 |
| Court | Chancery Division |
| Docket Number | Claim No. C30MA158 |
[2016] EWHC 2160 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Hodge QC
Sitting as a Judge of the High Court
Claim No. C30MA158
and
and
Counsel for the Claimants: Mr Elis Meredydd Gomer Instructed by Myerson Solicitors
Counsel for the Defendants: Mr Edward Hewitt Instructed by Beale & Co
APPROVED JUDGMENT
This is my extemporary judgment in the case of Mrs Sandra Jump and Mrs Suzanne Jones (as claimants) and Mr Harry Dow Lister and Forresters Solicitors Limited (as defendants), claim number C30MA158. The claim concerns the estates of the late Mr John Raymond Winson and his late wife Mrs Mable Winson. Mr and Mrs Winson made mirror wills on 17 th August 2010 by which, in simple terms (and subject to two minor specific gifts by Mrs Winson) each left their estate to the other, but if that gift failed, they each:
(1) provided for the disposal of their personal chattels;
(2) left pecuniary legacies totalling £214,500 to the same 13 named individuals and ten named charities; and
(3) left the residue of their estate to the claimants, who are Mr and Mrs Winson's two nieces and their continuing executrices.
According to the grant of probate of Mrs Winson's will dated 26 th October 2012, the net value of her estate is £797,024. According to the grant in respect of Mr Winson's estate dated 3 rd September 2013, its net value is £967,901.
The problem that has arisen in the administration of the two estates is that on 6 th October 2011 Mr and Mrs Winson were both found dead at their home in Penrith in circumstances in which it has not been possible to determine who died first. As a result, it is common ground that Mr Winson, who was the younger of the two, is deemed to have survived his wife as a result of the "commorientes rule" in section 184 of the Law of Property Act 1925.
As a preliminary matter, the claimants' names appear incorrectly on the original Part 8 claim form because the correct name of the first claimant is Sandra Jump (not Sandra Jones) whilst the second claimant's correct name is Suzanne Jones (not Suzanne Jump). Without objection from the defendants, I give permission to amend the claim form to correct these misnomers.
The first defendant is a solicitor and the draftsman who prepared both wills for Mr and Mrs Winson. Together with the claimants, he was appointed a substitute executor under both wills and he joined with them in obtaining grants of probate in relation to both estates. However, as a result of this, and other, disputes between the claimants and the first defendant concerning the administration of the estates (which are not before the court today) he was removed as an executor on his own application by order of District Judge Knifton dated 20 th February 2015. The second defendant is the solicitors' practice by which the first defendant is, and was, employed. The defendants have been joined as parties to enable the contention that the pecuniary legacies should be paid only once, out of Mr Winson's estate alone, to be fully advanced given that neither the claimants nor any of the pecuniary legatees wish to advance that argument. The claimants have threatened to bring professional negligence proceedings against the second defendant in relation to both the will drafting and other matters arising in the administration of the estates although I understand that no such proceedings have yet been issued.
The claimants are represented by Mr Elis Meredydd Gomer, instructed by Myerson Solicitors LLP of Altrincham. The defendants are represented by Mr Edward Hewitt, instructed by Beale & Co Solicitors LLP of Bristol.
The question for the court to determine is whether the survivorship clause set out in clause 11. 2 of Mrs Winson's will applies to the gift she made to her husband by clause 6.2 of that will. If it does not (as the defendants contend), then Mrs Winson's estate passed to Mr Winson pursuant to clause 6.2 of her will, and Mr Winson's estate then passes in accordance with clauses 6 to 10 of his will (because the gift to Mrs Winson made by clause 5.2 of his will fails as she is deemed to have predeceased him). It is common ground that that this accords with the intentions of both Mr and Mrs Winson. On the other hand, if the survivorship clause does apply (as the claimants contend), the gift made by clause 6.2 of Mrs Winson's will also fails (because, although Mr Winson is deemed to have survived his wife, he did not survive her by 28 days) and, as a result, neither estate passes to the survivor and the specific gifts and the pecuniary legacies totalling £214,500 will have to be paid out twice (once from each estate). As Mr Gomer put it, if the claimants' interpretation is correct, and the survivorship clause applies to the whole will in the case of each estate, each will takes effect as though its primary gift had failed, with the result that each of the two estates must be administered in accordance with the alternative distribution set out in both wills and, accordingly, the specific legacies must be paid out twice. As such, what Mr Gomer characterised as "the somewhat surreal situation" would arise whereby neither spouse would inherit the other's estate due to both of them having been deemed to die before the other. It is common ground that this is not what either Mr or Mrs Winson intended. The defendants' constructions of the wills avoids this result because if the provision in the wills relating to the primary gift is entirely separate from the remainder of the will, and so is unaffected by the survivorship clause, the position would be that Mrs Winson died first and her estate passed to her husband so that the only payment of specific legacies would be from Mr Winson's estate.
The court is therefore required to determine the true meaning and the combined effect of the two mirror wills and, specifically, the proper construction of three clauses of the will of the late Mrs Winson, clauses 6.2, 6.3, and 11.
Mr Hewitt points out that, somewhat unusually, it is the claimants who argue for the construction which results in the pecuniary legacies being paid twice over, despite it being contrary to their financial interest as residuary beneficiaries. Mr Gomer invites the court to note that the defendants' assertion that the claimants have "decided to advance the construction of the wills most disadvantageous to them" is both incorrect and unfair. The claimants consider that their interpretation is the objectively correct one (although they would prefer the defendants' interpretation to be correct) and that this situation has been created by the defendants' mis-drafting of the wills. A number of the charities who are named in the wills (represented by Wilsons Solicitors LLP) have made it entirely clear that they believe the claimants' interpretation to be the correct one and that they would not accept the defendants' interpretation unless the court so ordered. Mr Gomer submits that it is difficult to see what else the claimants are to do in the circumstances. In their role as executors, the claimants need to know how to administer the estates in accordance with their duties, in particular because they would be liable as executors to pay the specific legatees in respect of both wills if the claimants' interpretation is correct. The court is therefore asked to adjudicate upon the correct construction of the wills.
Mr Gomer makes the further point that during his time as an executor, the first defendant had begun to make the double payments to the specific legatees that the claimants' construction would mandate and that he had also taken advice from counsel (Mr Richard Chapman of 18 St John Street). The full advice, which was apparently given by telephone and of which no note seems to exist, has not been disclosed to the claimants; but Mr Gomer submits that it is reasonably to be inferred that the construction now advanced by the defendants is not the position that was taken prior to the involvement of the second defendant's insurers and their solicitors. The instructions to counsel are at pages 103 to 106 of the hearing bundle and a letter dated 23 rd May 2014 from the first defendant to the claimants summarising counsel's advice is to be found at pages 57 to 58.
The pecuniary legatees were consulted prior to the issue of these proceedings. Most of them have not responded but some of the charities that have done so have indicated that, because the claimants are themselves advancing the argument most favourable to the charities, they are content to allow the claimants to advance that argument and do not wish to increase the costs of the proceedings by being joined. Notices under CPR rule 19.8A have been served on the pecuniary legatees pursuant to paragraph 5 of the order of District Judge Bever dated 5 th May 2016 (as varied by paragraph 1 of the order dated 16 th June 2016) but I understand that no substantive responses have been received.
The evidence is contained in the witness statements of the first claimant, Mrs Sandra Jump, dated 11 th February and 21 st March 2016 together with exhibit SJ1 and in the witness statement of the first defendant, Mr Harry Dow Lister, dated 4 th March 2016 together with exhibit HDL1 (which contains the will file). I heard no oral evidence. Both counsel had produced helpful written skeleton arguments...
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