Walter Nick Schrader v William Stephen Schrader
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 11 March 2013 |
| Neutral Citation | [2013] EWHC 466 (Ch) |
| Docket Number | Case No: HC10C01694 |
| Court | Chancery Division |
| Date | 11 March 2013 |
[2013] EWHC 466 (Ch)
Mr Justice Mann
Case No: HC10C01694
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Evan Price (instructed by Rudds Solicitors) for the Claimant
Constance McDonnell (instructed by Quality Solicitors FJG) for the Defendant
Hearing dates: 4 th-8 th February 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a probate action about the last purported will of Jessica Schrader ("Jessica"). She died aged 98 on 21 st January 2008. In the disputed will dated 12 th April 2006 she left certain specific requests of relatively minor items to grandchildren and others, left her house ("Southend Farm House") to her son Nick (the claimant) and her residue to her two sons (Nick and Bill) equally. Her previous will executed on 1 October 1990 left small bequests, made no specific gift of Southend Farm House and gave the residue to her two sons equally. Thus the house, under that will, fell into residue. The effect of the disputed will was therefore to give Nick the whole, rather than half of, the value of the house, and to deprive Bill of his half. On current perceived values, a half share is worth between about £110,000 and £160,000. Because the two brothers are at loggerheads it has required a regrettable (but apparently unavoidable) four-day probate action to determine the fate of that amount of money. The aggregate costs of the action are thought to approach the lower of those two figures.
The will is challenged by Bill (the defendant) on the basis of want of capacity, want of knowledge and approval and undue influence. He propounds the 1990 will. His case is heavily dependent on what he would say is the improbability of his mother's executing the 2006 will if she had proper capacity, if she knew what she was doing or was not improperly influenced. It is therefore unfortunately necessary to go into some family history, because that is the background against which Bill makes his case.
The claimant's witnesses
I received evidence from the following witnesses, and I make the following findings about their respective credibilities and helpfulness. It is appropriate to give such indications at this stage because the views I have formed of their respective personal qualities and credibilities impact on some of the findings of fact that I have to make below.
Nick Schrader
He is now 62. He produced two witness statements, one very short and undetailed, the other a response to witness statements served on behalf of the defendant. The witness statements contain inaccuracies of some significance — that he sold a house to fund alterations (not true — his trustee in bankruptcy sold the house in the discharge of his functions); that his mother arranged for a will-writer to come and see her to make the will (not true — Nick made the arrangements). He also gave oral evidence as to his involvement in the process of considering the draft of the 2006 will which was demonstrably and significantly false. His attitude towards his brother is one of "hatred" — that was his word, used at the beginning of his oral evidence.
This latter point is of real significance in this case. He is, in my view, somewhat obsessed with his feelings towards his brother and a feeling that they were treated unequally by their parents throughout their lives. As far as I can see this perception of inequality is unjustified. What has happened is that Nick has made different life choices, and different choices towards the acquisition of cash as opposed to land. Whether the feeling of hatred has some justification is not something I need to make a finding about, and it would probably be impossible to do so. Nick's view is that his brother had an affair with Nick's first wife, and behaved inappropriately, short of a full affair, with his second (charges denied by Bill). That may be part of the explanation. The important thing is that it, and the perceptions of inequality, exist, because they are form an important part of the undue influence case. So is a clear feeling that he had a right to what he regarded as his inheritance, a point which came up in the context of a sale of land from his parents to Bill.
He is also a man of violent character. That was most strikingly demonstrated when he assaulted the partner of his former wife at a wedding in 2004. He received a prison sentence for that. There was also evidence, which I accept, of an incident in which he shoved shears through an open car window towards Bill's head or neck, though he did not make contact. His propensity to anger and to threats is also demonstrated, to a degree, closer to home. The house whose disposition was changed in the later will is the house where Nick lived with his mother from 2005. It gives on to an extensive yard and storage area owned and occupied by Bill for the purposes of vehicle repairs. Access is via a track up the side of the house. Nick has become almost obsessed with the activities of visitors to the business who on occasion leave their cars where Nick says they should not be parked. He is apt to become demonstrably very irate, and verbally highly abusive to customers (and Bill) about the matter, in a manner which is completely over the top. There was evidence, which I accept, that he is liable to use very offensive swear words, irrespective of the gender of the recipient. On one occasion he deliberately blocked access to protest about the blocking of access. While Nick was prepared to admit some of all of this, he did not admit what I find to be its full extent, which I consider to go to his credibility. His behaviour was bad verging on the irrational on a very significant number of occasions.
There was one incident which was in fact recorded (literally). A spare parts van driver had left a van where Nick thought it ought not to have been left. When he got into a row with Bill about it the altercation spanned over 20 minutes. Most of it was recorded by another tradesman working on the site, a Mr Edgell, on his mobile phone. I saw a transcript and listened to the recording. Nick did not dispute its accuracy. It demonstrates a considerable degree of verbal aggression. Mr Price cross-examined on the footing that this was something of a set-up. He put that there had been an arrangement between Bill and Mr Edgell that the latter would try to record Bill the next time he sounded off, for the purposes of these proceedings (which were on foot by then), and that one could detect moments in the recording when Nick was walking off but was brought back and re-inflamed by Bill or Mr Edgell. I reject that suggestion. Such a plot would have been Machiavellian beyond the capacities of Bill and Mr Edgell. Such passages where Nick is encouraged not to walk off were, in my view, instances of one of the others trying to get him back to calm him down. On several occasions Mr Edgell plainly tried to calm Nick down, not inflame him. I find that this incident is typical of other incidents in its vehemence and manner of expression (though it may not be typical in its length) and it demonstrates again the forceful personality of Nick and his quickness to anger. It causes me to view his evidence with caution when his conduct in relation to another close relative is concerned.
He also felt strongly about the yard at the back of the farm house. He thought that it was very badly maintained, and in the nature of a scrapyard. He may well have been right about that. It was not an attractive thing to have at the back of a house, with no fence in between. He probably projected some of these views on to his mother, though she too had a distaste for it.
So far as the quality of his oral evidence is concerned, he did not always impress me as someone who was trying to be accurate or tell the whole story. His view of things has been coloured by his attitude towards his brother and his perceptions of inequality, and I think that that affected his evidence. I also think that he had a feeling of entitlement to what he regarded as his inheritance. I had to treat his evidence with caution.
Paul Schrader
Paul Schrader is one of Nick's sons. He moved in to live with Jessica after her fall, and was a very significant carer. He joined in (or, as he would say, started) the assault on his mother's partner, and was convicted of assault. He freely admitted this in the witness box, and I think his display of remorse was genuine. He did not seem to me to display his father's quickness to anger.
He was able to give evidence of his grandmother's physical and mental state after her fall in 2005 which in the main I am able to accept. He also gave evidence about her views of Bill's activities in the yard at the end of the garden, which again I accept — he said that she did not openly complain to Bill about it but was upset about the cars and mess. He gave evidence about his grandmother's stating she would leave the farm house to his father. This is plausible evidence, but it does not determine much in the case. All in all, I could, by and large, treat Paul as a reliable witness.
Mrs Jill Townsend
Mrs Townsend is, and was at the material time, in a relationship with Nick. However, by and large I did not detect any partisanship in her evidence. She gave evidence about Jessica's mental state and her unhappiness with the use of the land at the bottom of her garden, which I am able to accept. She was a helpful and plausible witness. She gave short evidence about a statement by Jessica that she intended to change her will while she was still of sound mind....
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