Tociapski v Tociapski
| Jurisdiction | England & Wales |
| Judge | Mr Isaacs QC |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] EWHC 1770 (Ch) |
| Docket Number | Case No: HC11C02820 |
| Court | Chancery Division |
| Date | 20 March 2013 |
[2013] EWHC 1770 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr Stuart Isaacs QC
Case No: HC11C02820
ARABA TAYLOR (instructed by Messrs Ryan & Frost) appeared on behalf of the Claimant
Approved Judgment
Digital Transcript of Wordwave International, a Merrill Corporation Company 165 Fleet Street, 8th Floor, London, EC4A 2DY Tel No: 020 7421 4046 Fax No: 020 7422 6134 Web: Email: (Official Shorthand Writers to the Court)
The Claimant and the Defendant are the two sons of Mr Igor Tociapski, who died on 12 th March 2010. The Deceased made a will dated 20 th June 2007, under which the Claimant and the Defendant are the only persons entitled to share in the deceased's estate. The Defendant is the sole executor of the estate under that will.
In this action the Claimant seeks a declaration that an alleged later will executed by the deceased on 13 th May 2009 —which I shall call the 2009 will —is invalid. The Defendant is also the sole executor of the estate under that will. The Claimant also seeks an order that the grant of probate to the Defendant dated 27 th May 2010 in respect of the 2009 will be revoked, together with related relief.
The key difference between the 2009 will and the 2007 will is that under the 2009 will the entirety of the deceased's estate is left to the Defendant, whereas under the 2007 will the estate was shared between the two sons. The Claimant also seeks relief in relation to a transfer dated 12 th February 2010, by which the deceased transferred to the Defendant a property known as Hillcrest Cottage in Weedon, Northamptonshire.
In these proceedings the Claimant is ably represented by Ms Araba Taylor. The Defendant has taken no part in the proceedings. He did not acknowledge service or file a defence. He has not appeared at the hearing today and is not represented. His whereabouts are unknown, although the Claimant believes that the Defendant may be in Australia or South Africa. I received written and oral evidence from the Claimant's solicitor, Mr William Ryan, which evidence I accept, to the effect that the Defendant was served with all proceedings up to 2 nd October 2012. Mr Ryan could not be sure, however, that the documents served on the Defendant thereafter were received by the Defendant, including therefore notice of today's hearing.
The relevance of the October 2012 date is that the trial of this action was originally due to take place in that month and that the Defendant was aware of that trial date, although in the event it was adjourned at the Claimant's request due to certain visa difficulties being experienced by the Claimant. Under CPR Part 39.31 the Court may proceed with the trial in the absence of a party and that is the course which I have taken in this case.
The grounds on which the Claimant seeks to set aside the 2009 will are that the deceased did not know or approve its contents at the time he executed it and that when he executed it he was subject to undue influence exerted by the Defendant. Ms Taylor accepted that if I were to conclude that the deceased did not know or approve the contents of the 2009 will, it would be unnecessary to consider the issue of undue influence. The grounds on which the Claimant seeks to set aside the transfer are that when the deceased executed it he was subject to undue influence exerted by the Defendant and also, that this was a case of non est factum, due to the deceased's lack of capacity at the time he executed the transfer. In relation to the non est factum plea: at the hearing I gave the Claimant permission to amend the amended Particulars of Claim so as to make that plea in view of the fact that lack of capacity was only pleaded in the amended Particulars of Claim in the context of the allegation of undue influence.
In addition to the evidence of Mr Ryan, I received written and oral evidence from the Claimant himself and from Dr Andrew Barker, a consultant in old age psychiatry, who prepared expert's report dated 29 th August 2012 on the deceased's capacity at the times when he executed the 2009 will and the transfer respectively and the deceased's vulnerability to undue influence at those times. Dr Barker relied in part on a report dated 25 th May 2012 prepared by the deceased's general practitioner, Dr Jonathan Hill. Dr Hill did not give oral evidence and his report is hearsay. However, there is, in my judgment, no reason not to accord full weight to its contents, which essentially consist of a summary of the care provided to the deceased and an expression of Dr Hill's views as to the deceased's state of mind at the material times. There was no evidence adduced on the Defendant's behalf.
I turn first to consider the validity of the 2009 will. I accept the evidence of Dr Barker that, for the reasons set out in his report, while it cannot be concluded that the deceased lacked the capacity to execute the 2009 will, his capacity was impaired and that this impacted adversely on the deceased's ability to have known and approved the contents of the 2009 will. In his oral evidence Dr Barker amplified his written evidence by explaining the particular significance, in his view, of Dr Hill's evidence about the CT scan carried out in October 2010 on the deceased, which showed marked generalised and atrophic and ischaemic changes, of which, in Dr Hill's view, most would have been present in May 2009.
For Dr Barker, whose evidence I accept, the significance of this is that they support a conclusion of impaired judgment and impaired capacity. I should add that Dr Barker fairly pointed out that the views he expressed were based on the limited evidence available to him, but that, on that evidence, he had no reason to express any other views.
So far as the law is concerned, I was referred by Ms Taylor to the relevant passages in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, to the Court of Appeal decision in Gill v. Woodall [2011] Ch 380 and to Norris J's decision in Wharton v. Bankcroft [2011] EWHC 3250 (Ch) where the judge considered, at paragraphs 27 to 29 in particular, Gill v. Woodall and the correct approach to be taken in a case of this nature.
The factual basis for the Claimant's allegations in the present case, that the deceased did not know or approve the contents of the 2009 will are summarised in paragraph 4 of the amended points of claim, which reflect the evidence given by the Claimant and which, except in one respect, I accept:
(4) Some reason for excluding Paul was thus necessary, but the reason given was not itself true or rational;
Also, the Claimant relies on the following facts and matters in addition to those stated in the amended Particulars of Claim in support of the existence of circumstances arousing suspicion:
"(1) There was no reason for the Testator to alter the provision made in the 2007 Will, which acknowledged both the equal status of his sons and Boris's special position/needs;
(2) The Pretended Will departed from his previous pattern of always including Paul, sometimes to the exclusion of Boris;
(3) Historically, the exclusion of Boris was always a reflection of Boris's troubled circumstances; there was no equivalent basis for excluding Paul;
(4) Some reason for excluding Paul was thus necessary, but the reason given was not itself true or rational;
(5) It was out of character for the Testator to include a provision explaining exclusion; Paul invites the Court to conclude that this originated with Boris and did not express any intention of the...
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