The Estate of Neil Douglas Archibald deceased v Alistair James Stewart
| Jurisdiction | England & Wales |
| Judge | Master Francis |
| Judgment Date | 12 October 2023 |
| Neutral Citation | [2023] EWHC 2515 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2022-0004 |
[2023] EWHC 2515 (Ch)
DEPUTY Master Francis
Case No: PT-2022-0004
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (Ch D)
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
The Second Claimant, Julie Ann Archibald, in person, acting for herself and as representative of the estate of Neil Douglas Archibald, the First Claimant
Timothy Sherwin (instructed by Roythornes LLP) for the Defendants
Hearing date: 26 September 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30 am on 12 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Deputy Master Francis
Introduction
This is my determination of certain preliminary issues arising in claims under the Inheritance (Provision for Family and Dependants) Act 1975 brought by Neil Archibald, and by his wife, Julie Archibald, in respect of the estates of Neil's late parents, Rosemary Archibald and Malcolm Archibald 1.
Those issues, as they were directed by Chief Master Shuman by her order of 18 April 2023, are:-
a) whether Julie has standing under section 1 of the 1975 Act to bring any claim in her own right to reasonable financial provision in respect of either of the two estates; and
b) whether permission should be granted to Neil and Julie to bring their claims against either of the estates out of time under section 4 of the 1975 Act.
Very sadly, Neil himself died on 25 June 2023. Julie seeks to continue his claim on behalf of his estate. This gives rise to a further issue which I now have to determine as to whether Neil's claim for reasonable financial provision survives his death and can be pursued by his estate.
I made an order at the outset of the hearing that Julie should be appointed to represent Neil's estate pursuant to CPR r.19.12. She appeared in person in what must have been difficult circumstances given the recent death of her husband. However she was able to describe to me a detailed account of the lives of her parents-in-law, and Neil's and her own relationship with them, and explained to me as best she could her position on the three issues which I had to determine.
I must also record my gratitude to Mr Timothy Sherwin, who appeared for the defendants, the executors and trustees of Rosemary and Malcolm's estates and will trusts, for his comprehensive skeleton argument, and balanced presentation of the underlying legal issues and case law.
Background
Rosemary and Malcolm were the adoptive parents of Neil and his younger brother Mike. Rosemary died on 10 June 2014. Malcolm died on 14 January 2021.
Neil was married to Julie in 1999, after they had met in 1995. They have two children, Sasha and Ross, both now young adults. Julie also has a child from a previous relationship, Aaron. Neil suffered from alcoholism, and was unwell for some time before his death. He and Julie had separated for a short period in 2018 but were reunited in 2020.
Mike was married, and has two children, McKenzie and John, now in their late teens. He has also suffered problems of addiction during his adult life. Neil was estranged from him for many years.
Rosemary and Malcolm both made wills in similar terms on 26 May 2009, although Rosemary made a codicil shortly before her death on 23 May 2014.
Under the terms of her last will and codicil, Rosemary appointed the defendants, and Malcolm, to be her executors and trustees. After providing for three small legacies, she left her residuary estate on discretionary trust for three classes of beneficiary, namely (a) her husband, (b) her children and other descendants, and (c) the spouses or civil partners of her children and descendants, with the income of the trust to be paid to her husband during his lifetime.
Under his will, Malcolm similarly appointed the defendants as his executors and trustees. He left pecuniary legacies of £10,000 to each of his four grandchildren, and £3000 to his step-grandchild, Aaron. He left his residuary estate on similar discretionary trusts to those declared under Rosemary's will.
Rosemary and Malcolm had prepared a joint letter of wishes on 13 December 2002 setting out how they wanted their trustees to exercise their discretionary powers under the will trusts of their residuary estates after they had both died 2. This expressed the desire that their trustees should pay sums of £250,000 outright to each Neil and Mike, but that the remainder of their estates should be held to apply the income, and capital if necessary, for the education and training of their grandchildren, with the remaining capital distributable between the grandchildren after they had reached the age of thirty. They also asked that in the event of the death of either son leaving a surviving spouse the trustees should make income provision for such spouse to ensure their welfare and which would also sustain their grandchildren, for instance by the provision of a home and supporting income, but not any capital provision.
Following Rosemary's death, probate of her last will and codicil was granted to the defendants on 5 September 2014, with power reserved to Malcolm. The net value of her estate on death was £1,534,542, the vast bulk of which was represented by her one-half share in her and Malcolm's marital home known as Tideways, in Birdham, near Chichester. Her estate was fully administered by early 2015, as shown in the final estate accounts dated 22 January that year, with the residue vested in the defendants as trustees of her will trust, from which they made immediate payments by way of capital provision of £20,000 to each of Neil and Mike.
By the time of Rosemary's death, Malcolm was suffering from dementia. He had previously executed an enduring power appointing as his attorneys Alistair Stewart, the first defendant, then a partner at Plummer Parsons chartered accountants, and Amanda King Jones, a partner at Thomas Eggar, and this was registered in January 2015. Over the next six years until his death, those attorneys managed his affairs, and arranged for his care, initially at his home but in the last year of his life in a nursing home, utilizing the income from Rosemary's will trust. Their role caused some ill-feeling on Neil and Julie's part as
they felt they had no say in his care. Neil was also unhappy about payments made by the attorneys to Mike for his maintenance, about which he made a complaint to the Office of Public Guardian in 2015, resulting, I am told, in an instruction that no further such payments should be made to either sonAfter Malcolm's death, probate of his last will was granted to the defendants on 23 May 2021, following a limited grant ad colligenda bona defuncti which had been made to them in March that year to facilitate the sale of Tideways. The net value of his estate at death was £842,570. As shown in the draft estate accounts drawn up to 13 June 2022, his estate has been largely administered, with the balance available for distribution after payment of tax and administration expenses amounting to £534,817, of which £55,000 is required to meet pecuniary legacies and the remaining £479,817 to be held on the terms of his will trust.
Neil was engaged in on-going correspondence with the defendants following the grant of probate in matters relating to the administration of Malcolm's estate (and in particular the fate of his and Rosemary's personal chattels including a number of paintings of sentimental as well as artistic value), and relating to the exercise of the defendants' discretionary powers under the will trusts. In this latter respect, the defendants agreed to make an immediate balancing payment out of capital of £20,000 to Neil in July 2021 reflecting the benefits which Mike had already received from the trusts by having been allowed for a period to occupy Tideways rent free. However, without reaching any final decision on the question, they were more resistant to Neil's request that the entire capital of the trust funds should be divided between Neil and Mike's families, and his family's share paid out immediately to him for him to administer for his family's benefit.
In due course, in September 2021, Neil instructed Anthony Gold solicitors to take up matters on his behalf, and that firm wrote to the defendants on 14 October 2021 requesting information relating to the administration of both estates, and details of any further distributions to be made to Neil, to which the defendants' solicitors, Gateley Legal, responded on 26 October 2021. By letter of 4 November 2021 Anthony Gold sought further information, including a breakdown of the fees charged to the estates by the defendants and details of how they intended to exercise their discretionary powers under the will trusts, and reasons for that, to which Gateley responded on 3 December 2021. On 9 June 2022, Anthony Gold, by now acting for Julie as well, wrote again; in an indication of what seems to have been a deteriorating relationship, they intimated, amongst other things, a challenge to the defendants' fees in acting as executors and trustees. However, in none of such correspondence was there any suggestion that Neil or Julie intended to bring, or were contemplating, any claim in respect of either of the estates under the 1975 Act.
By this stage the administration of Malcolm's estate was more or less complete, barring payment of the legacies. On 15 July 2022, Richard Jordan, the second defendant, wrote to Anthony Gold setting out how the defendants were proposing to exercise their discretionary...
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