The Right Hon Gloria Wesley, Dowager Countess Bathurst v (1) Michael Chantler
| Jurisdiction | England & Wales |
| Judge | Simon Barker |
| Judgment Date | 16 January 2018 |
| Neutral Citation | [2018] EWHC 21 (Ch) |
| Court | Chancery Division |
| Docket Number | HC 2016 001705 |
| Date | 16 January 2018 |
[2018] EWHC 21 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Rolls Building
Fetter Lane
London EC4 1NL
HIS HONOUR JUDGE Simon Barker QC SITTING AS A JUDGE OF THE HIGH COURT
HC 2016 001705
In The Estate of the Right Hon Henry Allen John Eighth Earl Bathurst
Tracey Angus QC and Jordan Holland instructed by Mishcon de Reya LLP for the Claimant
Gilead Cooper QC instructed by Charles Russell Speechlys LLP for the First to Third Defendants
Fenner Moeran QC instructed by Boodle Hatfield LLP for the Fourth to Seventh Defendants
Hearing dates: 5–6 October 2017
I direct that pursuant to CPR 39APD6 paragraph 6.1 no tape recording shall be made of this judgment and that copies of this version shall stand as authentic and be treated as the official transcript
HHJ Simon Barker QC:
The parties and the claim
This judgment follows the trial of two of six issues raised in CPR Part 8 proceedings concerning the estate of the late Eighth Earl Bathurst (‘the Eighth Earl’), who died on 16.10.11. the Eighth Earl had made a Will on 22.5.98 (‘the 1998 Will’) in addition to which the Court of Protection made a statutory codicil (‘the 2008SC’) as an interim measure on 5.11.08 and in final form on 21.11.08.
The claimant, the Dowager Countess Bathurst (‘Lady Bathurst’), is the widow of the Eighth Earl. The first to third defendants (‘D1–3’ and respectively ‘D1’ etc) are the trustees of the Earl's Fund, a trust created under the 2008SC (‘the EFT’); D1–are the original trustees and D3 was appointed an additional trustee by D1–on 16.4.15. The fourth to seventh defendants (‘D4–7’ and respectively ‘D4’ etc) are the trustees of the Earl Bathurst 1963 Estate Settlement (‘the 1963S’).
The relief sought by Lady Bathurst on the two issues the subject of this trial and judgment is:
(1) a direction permitting Lady Bathurst, in her capacity as executrix of the 1998 Will and the 2008SC, to decline to execute any deed assenting any chattels to D1–3, in their capacity as trustees of the EFT, until she has been given an opportunity to inspect and make a full inventory of the chattels in the EFT that are located at Cirencester Park mansion that should form part of the EFT (‘the assent issue’); and,
(2) determination of whether, on a correct construction of the 1998 Will and the 2008SC, Lady Bathurst is entitled to enjoy the possession and use of any of the property the subject of the EFT (‘the construction issue’).
At trial, the claim was supported by two witness statements made by Lady Bathurst, a witness statement made by Mr Richard White concerning in particular certain events in 2014, and a witness statement made by Ms Claire-Marie Cornford of Mishcon de Reya, the solicitors instructed by Lady Bathurst. It was opposed by witness statements by each of D1–3 and by D4. The witness statements reveal disagreement as to the facts and contain differing opinion evidence. Since the proceedings began there have been four case management orders by Master Bowles and one by a Deputy Master. By the first order, D1–3's application objecting to the claim continuing under CPR Part 8 was dismissed and the court did not require or permit any party to give oral evidence.
Factual background
The Eighth Earl became the Eighth Earl Bathurst in 1943, when aged 16 years. His inheritance included a large estate comprising some 15,000 acres in Gloucestershire, a mansion house on the estate known as Cirencester Park, and very valuable chattels. The Eighth Earl married his first wife in 1959 and his heir, now the Ninth Earl Bathurst (‘the Ninth Earl’), is one of the children of that marriage. The Eighth Earl's first marriage was dissolved in 1976 and he married Lady Bathurst in 1978. In the meantime, in 1963 the Eighth Earl established the 1963S into which he transferred some 11,000 acres of the estate; later, Cirencester Park mansion was purchased from the Eighth Earl by D4–7 for the 1963S. The 1963S was created primarily for the benefit of the Eighth Earl's children, in particular his heir and his issue. The Eighth Earl retained some 4,000 acres and the chattels.
The chattels include some very valuable works of art and collections of documents. For the purposes of this trial, and for other purposes as between the parties, the chattels have been referred to as comprising two categories: ‘exempt chattels’ and ‘non-exempt chattels’. The exempt chattels comprise 68 items or collections of items plus a collection of documents all of which are conditionally exempt from inheritance tax. For the purposes of this trial and judgment, reference to the non-exempt chattels is to all other chattels owned by the Eighth Earl at his death located at Cirencester Park, whether in the mansion or elsewhere at Cirencester Park.
In about 1988 the Eighth Earl and Lady Bathurst moved from Cirencester Park mansion to Manor Farm, which is on the land retained by the Eighth Earl. Since then a number of important exempt chattels have been used and enjoyed at Manor Farm.
The Eighth Earl's last Will, the 1998 Will, appointed Lady Bathurst and another named individual as his executors. In December 1997 the Eighth Earl had appointed Lady Bathurst and the other named executor as his attorneys under an Enduring Power of Attorney.
As to the devises and bequests under the 1998 Will, clause 3 made provision in respect of the Eighth Earl's chattels:
“ 3 Gift of Chattels
I give free of all taxes and duties payable on them by reason of my death all my personal chattels (as defined by section 55 (1)(x) of the Administration of Estates Act 1925) which have not otherwise been specifically and effectually disposed of by my Will or any codicil to it to my Trustees 1 to hold them as follows:
3.1 I request that my Trustees (without creating any trust or imposing any binding obligation on them in law or in equity) dispose of my said chattels within the period of two years from my death in accordance with any existing or future memorandum 2 written or signed by me and deposited with my Will or left among my papers at my death; and
3.2 subject to that for Lady Bathurst absolutely if she survives me by thirty days; and
3.3 subject to that upon the trusts declared below concerning my Residuary Estate”.
At the relevant time s.55(1)(x) of the Administration of Estates Act 1925 defines personal chattels as meaning:
“ carriages, horses, stable furniture and effects (not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus,
wine, liquors and consumable stores, but do not include any chattels used at the death of the intestate for business purposes, nor money or securities for money”.
Clause 4 of the 1998 Will provided for pecuniary legacies totalling some £250,000.
Clause 5 made provision for woodlands:
“ 5 Woodlands
I give subject to all taxes and duties payable thereon by reason of my death all my woodlands to the trustees for the time being of [the 1963S] to be held by them as an accretion to the Younger Descendants' Fund thereof and upon the trusts and with and subject to the powers and provisions referred thereto”.
Clause 6 made conditional provision for Lady Bathurst as residuary beneficiary:
“ 6 Residuary estate – Gift to Lady Bathurst
I give all my estate not otherwise disposed of to my Trustees upon trust with power to either sell it or to postpone sale and after payment of all my debts funeral and testamentary expenses and all taxes and other duties payable in respect of my estate to hold the residue ( “my Residuary Estate”) upon trust for [Lady Bathurst] absolutely if she survives me by 30 days”.
Clause 7 made provision for the eventuality that Lady Bathurst did not survive the Eighth Earl by 30 days.
Clauses 8 and 9 provided for extended powers of maintenance and accumulation and of advancement. Clause 10 provided for the powers of the 1998 Will Trustees by reference to a detailed schedule. Clause 11 provided for the appointment of new trustees of the 1998 Will (by Lady Bathurst) and their retirement.
The schedule to the 1998 Will addressed the administrative powers of the trustees under the 1998 Will in detail under 21 paragraphs including, at paragraph 2, a wide power to permit use and enjoyment of property in kind:
“ Power to purchase acquire or retain any real or personal movable or immovable property (including chattels) for the beneficial occupation use or enjoyment of any beneficiary and to permit any beneficiary to have the beneficial occupation use or enjoyment of such property upon such conditions as to payment or non-payment of rent rates taxes and other outgoings and the keeping of inventories and generally upon such terms (if any) as my Trustees think fit”.
On the evidence, at the time the 1998 Will was made, and subsequently, there was an understanding between the Eighth Earl and Lady Bathurst, at least in relation to the exempt chattels, that upon Lady Bathurst's death they would be kept in the Bathurst family.
The Eighth Earl made three codicils to the 1998 Will. The first, dated 12.12.05, bequeathed specified follies and chattels together with sufficient curtilage for their future maintenance to the 1963S and the sporting rights for game and deer in respect of the woodlands to Lady Bathurst for life. Those of 5.3.07 and 7.9.07 revoked...
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