Vanessa Schomberg and Others v David Taylor and Others

JurisdictionEngland & Wales
CourtChancery Division
JudgeMR Mark Cawson QC
Judgment Date16 January 2013
Neutral Citation[2013] EWHC 2269 (Ch)
Docket NumberCase No: HC11C01194
Date16 January 2013

[2013] EWHC 2269 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Rolls Building

7 Rolls Buildings

Fetter Lane

London EC4A 1NL

Before:

Mr Mark Cawson QC

(sitting as a Deputy Judge of the High Court)

Case No: HC11C01194

Between:
Vanessa Schomberg & Ors
Claimants
and
David Taylor & Ors
Defendants

MR C BARLOW appeared on behalf of the Claimants, Ms V Schomberg and Mr D Randall

MR J BRIGHTWELL appeared on behalf of the First and Second Defendants, Mr D Taylor and Mr P Taylor

MR J ALLCOCK (instructed by Payne Hicks Beach) appeared on behalf of the Fifth, Sixth and Seventh Defendants, Ms C Kaplan, Mr A Peskin and Mr D Peskin

MR HOLDEN (instructed by Finers Stephens Innocent) appeared on behalf of Mr B Peskin

MR Mark Cawson QC
1

This is my judgment in the matter of Schomberg and Randall v David Howard Taylor and others.

Introduction.

2

In this claim, the claimants, Vanessa Patrice Schomberg ("Mrs Schomberg") and Derek George Randall ("Mr Randall"), who are named as the executors in what purports to be the last will and testament dated 18 December 2008 ("the 2008 will") of the late Marlene Taylor ("Mrs Taylor"), seek to propound the 2008 will in solemn form. There is no issue that the 2008 will was duly executed as a matter of formality, and due execution is duly proved in respect of the 2008 will by the witness statement of Mrs Schomberg and her evidence to me. However, the first and second defendants, David Howard Taylor ("David") and Paul Harrison Taylor ("Paul") allege that the 2008 will was executed under the undue influence of Bruce Anthony Peskin ("Mr Peskin") who was initially joined as eighth defendant.

3

By their counterclaim, David and Paul ask the court to pronounce against the 2008 will and to pronounce in solemn form in favour of an earlier will dated 8 November 2005 ("the 2005 will"). Whilst there is no real issue as to the due execution of the 2005 will, the original is not presently before the court. The copy of this will in the bundle shows it to have been executed in the presence of Lesley Adamson, a clerk with Mrs Schomberg's firm of solicitors, and also by Caroline Mann, an office clerk with the same firm.

4

Mrs Schomberg informed me in evidence that she prepared the 2005 will and that Mrs Taylor visited her at the office in order to execute itl. She informed me that Lesley Adamson was a highly-experienced clerk, well used to the practice of the formal execution of wills and that she is certainly satisfied that it had been duly executed.

5

Consequently, subject to production of the will itself, I can be reasonably satisfied that the 2005 will was duly executed. However, if necessary in the light of my decision in this case, further inquiry would have to be made as to the whereabouts of the original 2005 will before I would be in a position to formally pronounce in its favour.

6

The real issue before me is as to whether the 2008 will was executed under the undue influence of Mr Peskin.

7

So far as representation is concerned, Mr Craig Barlow of Counsel appeared on behalf of the claimants, Mrs Schomberg and Mr Randall. Mr James Brightwell of Counsel appeared on behalf of David and Paul. On the first day of the hearing the fifth, sixth and seventh defendants were represented by Mr Jonathan Allcock. I shall explain their role in the proceedings in due course. Today, for the purpose of the delivery of this judgment, Mr Andrew Holden of Counsel appears on behalf of Mr Peskin, having submitted a skeleton argument dealing with the question of costs.

The individuals involved.

8

In or about 1966 Mrs Taylor married the late Brian Taylor ("Mr Taylor"). At the time of this marriage Mr Taylor had two sons from an earlier marriage, David and Paul, then aged about 11 and 9. Mr Taylor died on 17 October 2008. Latterly, Mr and Mrs Taylor lived at 54 High Street, Potterspury, Northamptonshire. At all relevant times, David has lived in Dollis Hill in London and Paul in Israel. David and Paul stand to take the whole of Mrs Taylor's residuary estate under the 2005 will, but are legatees for only £10,000 each under the 2008 will.

9

Mrs Taylor had a brother, Anthony Stansbury, and a sister, Penelope ("Penny") who is married to Mr Peskin. Mr Peskin and Penny have three children, the fifth defendant, Celina Anne Kaplan, known as "Cindy", the sixth defendant, Andrew Jonathan David Peskin ("Andrew") and the seventh defendant, Dominic Samuel Alexander Peskin ("Dominic"). Cindy, Andrew and Dominic stand to take between them the whole of the residue under the 2008 will, but nothing under the 2005 will.

10

David is married to Louise Taylor ("Louise"). Paul's wife, Muriel, sadly died in October 2010. The third defendant, Lucy McKay ("Mrs McKay"), was a neighbour of Mr and Mrs Taylor and worked as a personal assistant to Mr Taylor and, latterly, in the role of carer to both Mr and Mrs Taylor and to Mrs Taylor following Mr Taylor's death. She is left a legacy of £25,000 by the 2008 will, but nothing under the 2005 will. Mrs McKay lived close to Mr and Mrs Taylor in Potterspury.

11

The fourth defendant, Terry Waterhouse ("Mrs Waterhouse"), had known Mr and Mrs Taylor for approximately 15 years and worked for them, and latterly Mrs Taylor, as a cleaner and in helping them out on a more general basis. Again, she lived close to Mr and Mrs Taylor in Potterspury. She is left a legacy of £5,000 under the 2008 will but nothing under the 2005 will.

12

It is to be noted that, in the event of the 2005 will being propounded in solemn form in preference to the 2008 will, then David and Paul have agreed to honour the legacies in favour of Mrs McKay and Mrs Waterhouse provided for by the 2008 will. The effect of this is that the result of the case is entirely neutral to them.

13

In addition to David, Paul, Louise, Mrs McKay and Mrs Waterhouse, I also have heard evidence from the following on behalf of David and Paul: Mr Alan Downer ("Mr Downer") who together with his partner, Jules or Julie, were close family friends of Mr and Mrs Taylor; secondly, David and Paul's cousin, Richard Ladd ("Mr Ladd") who was formerly married to Cindy; thirdly, Mr Taylor's nephew-in-law, Mr Bernard Telshaw ("Mr Telshaw"); and fourthly, Sue Pollard ("Mrs Pollard"), a neighbour of Mr and Mrs Taylor, who, in particular, assisted in caring for Mrs Taylor after Mr Taylor's death.

14

Mrs Schomberg is a solicitor and partner in the firm of J Garrard & Allen of Olney, Buckinghamshire. She first took instructions from Mrs Taylor in respect of a will made in 1988 and took instructions from Mrs Taylor in respect of both the 2005 and the 2008 wills. The other claimant, Mr Randall, is a retired solicitor who, as we shall see, acted for and was a friend of Mr Peskin.

Procedural History.

15

It was necessary to look at some length at the procedural history. The claim was issued, supported by Particulars of Claim, on 13 April 2011 after David and Paul had each lodged caveats against the 2008 will being admitted to probate. Paragraphs 33 to 44 of David and Paul's defence and counterclaim dated 31 May 2011, to which I shall return, set out the basis of the claim that the 2008 will was executed under the undue influence of Mr Peskin. As I have said, Mr Peskin was originally joined as eighth defendant, however, his then solicitors, Payne Hicks Beach, filed an acknowledgement of service disputing jurisdiction. In the event, a Consent Order was signed by the claimant's solicitors and by Mr Peskin's then solicitors, reciting that the claim against Mr Peskin had been discontinued, with the costs being reserved. A formal order to this effect was made by Master Bowles on 4 October 2011.

16

Whilst Cindy, Andrew and Dominic did acknowledge service indicating an intention to defend the proceedings, they did not serve a Defence and, by the order of Master Bowles dated 1 February 2012, they were then given permission to amend their Acknowledgements of Service to state that they did not intend to defend the claim. This followed on from correspondence sent by their solicitors, Payne Hicks Beach, in response to the Defence and Counterclaim to the effect that they had considered the allegations made by David and Paul and did not wish to participate in any dispute over which will should prevail.

17

The position of Cindy, Andrew and Dominic was further explained in a letter from Payne Hicks Beach addressed to me as trial judge, dated 11 December 2012. That letter referred to earlier correspondence and said that, as explained in those letters:

"Our clients are not taking any active part in these proceedings and, accordingly, they do not intend to attend or be represented at the hearing of the trial itself. We have nevertheless instructed Mr Jonathan Allcock of Maitland Chambers to attend briefly at the start of the hearing on Monday, both as a courtesy to the court and to enable arrangements to be made for our clients to be informed of the outcome of the dispute so that they might have the opportunity to make representations about consequential orders and directions."

18

So far as the other defendants are concerned, neither Mrs McKay nor Mrs Waterhouse served defences or played any active part in the proceedings. The claimants, in response to the Defence and Counterclaim, served a Reply and Defence to Counterclaim.

19

In view of the approach taken by the defendants, apart from David and Paul, the Order for Directions made by Master Bowles on 1 February 2012 only provided for disclosure and exchange of witness statements as between the claimants and David and Paul. Although perhaps not...

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2 cases
  • Teresa Ann Coles v Heather Christine Reynolds
    • United Kingdom
    • Chancery Division
    • 7 August 2020
    ...( ie went beyond persuasion), and that the will before the Court was brought about by these means.” (See also Schomberg v Taylor [2013] EWHC 2269 (Ch), 98 Mr Jones also referred me to comments by Lewison J in Edwards v Edwards [2007] WTLR 1387, [47], but most of these are in fact summarise......
  • Lian Kok Hong v Lian Bee Leng and another
    • Singapore
    • High Court (Singapore)
    • 5 August 2015
    ...proven from the circumstances surrounding the execution of the will. In this context, they rely on Vanessa Schomberg v David Taylor [2013] EWHC 2269 (Ch) (“Schomberg”). Schomberg involved a challenge to a testatrix’s will by her stepsons, who alleged that the will was executed under the und......

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