Sherrington and Others v Sherrington

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Peter Gibson,LORD JUSTICE PETER GIBSON,Lord Justice Waller
Judgment Date29 Dec 2006
Neutral Citation[2005] EWCA Civ 326,[2006] EWCA Civ 1784,[2005] EWCA Civ 410
Docket NumberCase No: A3/2004/1606 HC03CO2402,A3/2004/1606,Case No: B4/2006/0725

[2005] EWCA Civ 326

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Chancery Division

Lightman J.

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Peter Gibson

Lord Justice Waller and

Lord Justice Neuberger

Case No: A3/2004/1606

A3/2004/1606A

HC03CO2402

Between
Daliah Dorit Sherrington
1st Respondent
Donna Karina Sherrington
2nd Respondent
Ramon Gerrard David Sherrington
3rd Respondent
and
Yvonne Sherrington
Appellant

Mrs. Elspeth Talbot Rice (instructed by Messrs Withers of Old Bailey) for the Respondents

Mr. Alan Boyle Q.C. and Mr. Paul Teverson (instructed by Messrs Goldkorn Mathias Gentle of Bloomsbury) for the Appellant

Lord Justice Peter Gibson (giving the judgment of the court to which all the members of the court contributed):

1

This is an appeal in a probate action, the circumstances of which can fairly be called extraordinary. If the trial judge is right, the deceased, a practising solicitor for some 30 years, signed what would have been his last will, had it been duly executed and had he known and approved its contents, in the presence of two persons who signed it without their attention being drawn to his signature or to the fact that it was a will and without them having any intention to verify or attest his signature. The judge held that the deceased's widow, the sole executrix and beneficiary under that will, failed to establish that the will was validly executed. He further held that the widow had failed to prove that the deceased knew and approved the contents of a short and simple will. Accordingly, he held the will to be invalid with the result that the deceased died intestate and that the children of the deceased, being the children of the first of his two marriages to whom, as the judge found, the deceased was totally devoted, would take substantial interests in the large estate left by the deceased. We confess that if this court were free to divide the estate in a way it thought appropriate, the result achieved by intestacy would be what we would have wanted to achieve. But this court has no such discretion, and instead this appeal must be determined according to whether or not the widow has succeeded in impugning the decision of the judge.

The facts

2

The deceased, Richard Sherrington, was born in 1945. He was a successful solicitor. He was the founder and managing partner of the firm, Sherringtons. He was also a successful businessman, carrying on a loan business through Barex Brokers Ltd. ("Barex") of which he was the sole shareholder and director. By the time of his death he was more a businessman than a practising solicitor. His role in Sherringtons was essentially overseeing the running of the firm. The value of Barex was estimated at about £6 million at his death. Further it had a pension fund estimated to be worth some £1.7 million of which a 54.2% share had been appropriated to him and a 45.8% share had been appropriated to his first wife, Mrs. Gloria Sherrington ("Gloria").

3

There are three children of the deceased's marriage to Gloria: the First Claimant, Daliah Sherrington ("Daliah"), born on 12 May 1974, the Second Claimant, Donna Sherrington ("Donna"), born on 24 January 1977 and the Third Claimant, Ramon Sherrington ("Ramon"), born on 18 December 1982. In 1995 the deceased left Gloria to live with another woman. That relationship ended in early 1998. Before then Gloria had commenced divorce proceedings against the deceased. In April 1998 the deceased met the defendant, Yvonne Sherrington ("Yvonne") who was some 3 years younger than him, and they became engaged the next month. A decree absolute was granted in the divorce proceedings on 26 May 1999 and on 27 June 1999 the deceased married Yvonne. She had two daughters by an earlier marriage. One of them, Nathalie Walker ("Nathalie"), features in the history of what occurred.

4

Daliah, Donna and Ramon opposed the deceased's remarriage and refused to attend the wedding, despite the efforts of the deceased and Yvonne. The trial judge, Lightman J., found that relations between the deceased and his children were strained during this period but fully healed shortly thereafter.

5

In 2001 Sherringtons purchased the practice of another firm of solicitors, Hanchett-Woolstone ("HW"), whose office was about a mile from that of Sherringtons. In June 2001 HW had no trained lawyer working for them. Although Yvonne had no legal qualifications the deceased asked her to help by working, in effect, as a receptionist. In June 2001 Nathalie completed a PhD (on plant ecology). She too had no legal qualifications, but in July 2001 at the deceased's request she began to work at HW. Her primary role was to update HW's database, but she also assisted her mother in dealing with clients. An important part of Yvonne's and Nathalie's work was to obtain preliminary instructions from clients regarding their wills and to send the clients' existing wills, together with those instructions, to Sherringtons.

6

At the end of 2001 Nathalie's work with clients' wills caused her to ask Yvonne whether she and the deceased had made new wills following the revocation by their marriage of any previous will. Yvonne then asked the deceased whether they should make new wills.

7

In consequence draft wills were prepared for the deceased and Yvonne. Surprisingly, in view of Nathalie's lack of legal qualifications and absence of any previous experience of drafting wills, Nathalie was given the task of preparing the draft. We shall return later to the evidence of how the wills were prepared, but the deceased's engrossed will ("the Will"), as subsequently executed, read as follows:

" THIS IS THE LAST WILL AND TESTAMENT of me RICHARD MICHAEL SHERRINGTON of PENTHOUSE 19, BICKENHALL MANSIONS, BICKENHALL STREET, LONDON W1U 6BP AND I HEREBY REVOKE all former Wills and testamentary dispositions made by me

1) I APPOINT my WIFE YVONNE ROSE SHERRINGTON to be the Executor [sic] and Trustee of this my Will PROVIDED THAT if he [sic] shall be unable or unwilling to act in either such capacity or if he [sic] shall predecease me I APPOINT my daughters DALIAH SHERRINGTON and DONNA KARINA SHERRINGTON to be the Executor [sic] and Trustee [sic] of this my Will

2) SUBJECT to the payment of my just debts funeral and testamentary and other expenses and any capital duties payable on or arising from my death I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate not otherwise disposed of UNTO YVONNE ROSE SHERRINGTON

3) SHOULD my said wife fail to survive me by seven days or (if having so survived me) she shall disclaim any part or parts thereof (for which purpose my estate shall be deemed divisible into as many parts as shall be required to give effect to this provision) then I GIVE my said net estate or such disclaimed parts as the case may be unto my said daughters and my son RAMON SHERRINGTON

4) MY TRUSTEES shall have the following powers:—

(a) My Trustees shall have the same full and unrestricted power of investing in all respects as if they were absolutely entitled thereto beneficially and subject to no restriction with regard to advice or otherwise in relation to investment and without prejudice to the generality thereof they shall have power to buy sell or retain any freehold or leasehold property whether as an investment or a residence for any beneficiary

(b) In addition to all other powers conferred by law my Trustees shall have power at any time and from time to time to raise capital and pay or apply the same to or for the benefit of any minor beneficiary hereunder whether or not they shall in so doing exhaust the Trust Fund

(c) My Trustees may insure to the full replacement value thereof against loss or damage by fire or any other usual risk any property comprised in my estate for the time being or in any Trust fund created hereby paying the premiums out of the income or capital of my residuary estate and any money received by my Trustees under any such policy shall be treated as though it were proceeds of sale of the property insured

5) UPON my death it is my wish that my body be BURIED TOGETHER WITH MY WIFE

IN WITNESS whereof I the said Testatrix [sic] have hereunto set my hand this 7 th day of September Two Thousand and One

SIGNED by the Testatrix [sic] in our presence and then by us in hers [sic]".

8

The Will at that stage was on three separate sheets of paper. The first page ended at the end of cl. 3 and the second page at the end of cl. 5.

9

Yvonne's engrossed will, as subsequently executed, also consisted of three sheets of paper and was in like form save that —

(1) in cl. 1, the deceased was named as Executor and Trustee;

(2) also in cl. 1, if he (called "she") was unable or unwilling to act or predeceased Yvonne, she appointed her two daughters to be "the Executor and Trustee"; and

(3) in cl. 3, if the deceased did not survive Yvonne by seven days or disclaimed, she gave her net estate or such disclaimed parts to her two daughters.

10

The engrossments were handed by Nathalie to Yvonne on 7 September 2001. That evening the deceased and Yvonne were due to fly to France for a short holiday on a 9pm flight from Luton. Mr. Rafiq Butt, described by the judge as combining the roles of the deceased's confidant, friend, business adviser and chauffeur, and his wife, Ayesha, an assistant teacher, picked up Yvonne from her mother's flat and took her to the office of Sherringtons. There at about 6.30pm Mrs. Butt, who was pregnant and wanted to use the lavatory, and Yvonne entered the building. Yvonne went to the deceased's office and handed an envelope containing the...

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