Wendy Davey v David Bailey
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 26 February 2021 |
| Neutral Citation | [2021] EWHC 445 (Ch) |
| Date | 26 February 2021 |
| Docket Number | Case No: PT-2020-CDF-000019 |
| Court | Chancery Division |
[2021] EWHC 445 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
IN THE ESTATES OF MARGARET BAILEY DECEASED
AND ALAN BAILEY DECEASED
Cardiff Civil Justice Centre
2 Park Street, Cardiff CF10 1ET
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: PT-2020-CDF-000019
Mr Richard Fowler (instructed by CCW Law Solicitors Ltd) for the claimants
Mr Alex Troup (instructed by Graham Evans & Partners) for the defendants
Hearing dates: 22 and 23 February 2012
Judgment Approved by the court for handing down
(subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
HH JUDGE Jarman QC:
These proceedings concern the proper distribution of the estates of a devoted married couple, Alan and Margaret Bailey, who each died at the age of 71 within months of each other in 2019. They had no children. Each left a will dated 28 May 2009 in which each appointed the other as sole executor and sole beneficiary. After his wife died on 20 January 2019 of cancer, Mr Bailey attended the solicitor who had drafted the wills, Eira Rees Jones of Hugh Williams Son & Co in Llandeilo, to make a new will. However, he did not execute a new will before he died of a heart attack on 24 May 2019. As his wife had predeceased him, his gift to her under his 2009 will fails, and his estate, including that which he inherited from his wife, passes under the law of intestacy to his next of kin. His next of kin under section 46 of the Administration of Estates Act 1925 are the defendants, namely his brother David Bailey, his sister Myfanwy Jeffreys, and the children of his sister Ann who predeceased him, Leslie, Paul and Michael Davies.
However, Mrs Bailey's sister and brother, Wendy Davey and Eiron Jones, the claimants in these proceedings, claim that the couple in January 2019 made gifts of a substantial part of their sizeable estates, in contemplation of their respective deaths. Mrs Davey also claims that her brother in law made such a gift to her in February 2019 of the house which he had jointly owned with his wife, known as Troedyrhiw, Talley, a small village a few miles to the east of a larger village in Carmarthenshire called Llangadog.
I read and heard written and oral evidence from the claimants and their respective daughters Caroline Bryant and Nicola Jones, from David Bailey and his nephew Leslie Davies, from Mrs Jones the solicitor, and from an independent financial advisor who had acted for the couple over many years, Colonel Douglas Jones. Mrs Davey lives in Surrey and her daughter in Hampshire. Mr Jones and his daughter live a few miles to the south of Llangadog near Ammanford, as does Mrs Jeffreys. The other defendants all live in Llangadog.
By the time of the claimed gifts the couple were prosperous. Troedyrhiw was registered in their joint names in 2003. Earlier that year two business properties, both situated in Llangadog were transferred into the late Mr Bailey's sole name, a butchers and a grocers. The latter has three flats above. Both these had been left to him and his brother David by their parents and they ran the businesses for many years. Mrs Bailey, as well as working full time for construction companies, was also responsible, in large part at least, for the administration of these business. Eventually the brothers decided to go their separate ways professionally but remained friendly. David Bailey was bought out of the businesses. Their nephew Leslie Davies then ran the butchers business, which he has now done for some 20 years. After her redundancy at the age of 60, Mrs Bailey helped her husband in the grocers business and continued helping with the administration, which she did up until the last couple of weeks before her death. She and her husband each had pensions and other investments such as ISAs.
Mrs Bailey's net estate in a IHT form completed by Colonel Jones in March 2019 from information provided by her husband was valued at just short of £662,000. He also provided a recommendations report for Mr Bailey on 27 February 2019, based on property valuations assessed by the latter. Those were £350,000 for Troedyrhiw, £400,000 for the grocery shop, £450,000 for the butcher's shop and £200,000 for the flats. Colonel Jones obtained valuations in respect of Mr Bailey's pension, ISA and bank account of around £134,000, £84,000 and £20,000 respectively. When his inheritance from his late wife was added, his total assets were recorded as over £2million. The IHT return relating to his estate records that his net estate is worth just over £1.1 million before IHT. By then, professional valuations had been obtained in respect of the properties, and in particular the valuation of the butchers shop, was lower than thought by Mr Bailey, at £195,000. His brother David, who is now administrator of his estate, accepted in cross examination that his brother had made it clear that £176,000 was earmarked for refurbishment of the upper floors of the shop which are in very poor condition.
Several important factors emerged clearly from the oral evidence which I heard. Not only were the couple devoted to one another, but they were devoted to their respective families, and there was a closeness between these families. A good example is given by the fact that members of both sides of the family met the day after Mr Bailey's funeral at his brother David's house, when the couple's wishes as to what was to happen to their assets after their days was discussed. Mrs Davey said something to the effect that as the couple had died so close to one another, their estates, apart from the butcher's shop, should be split equally between their respective families as she believed that is what their wishes were.
There was consensus before me that all material times Mr Bailey wanted the butcher's shop to go to his nephew Leslie. Although Mrs Davey raised the issue of splitting the estate of the couple between their respective families, the meeting remained friendly. Members of both sides of the family met again some weeks later to scatter Mr Bailey's ashes.
It was only later when his brother David thought that Mrs Davey had taken more property from Troedyrhiw than he had agreed to, that a dispute arose. Despite that, and despite the adversarial nature of these proceedings, the clear impression I gained during the oral evidence of each member of the family was that he or she was trying his or her best to give straightforward and accurate answers. Each side readily made concessions about the other.
For example, Mrs Davey readily accepted that her late brother in law treated his nephew Leslie like a son. He in turn readily accepted how supportive Mrs Davey in particular had been since her sister was diagnosed with cancer. During 2018 Mrs Davey regularly travelled to Troedyrhiw to be with her sister and to help with the administration. After hope of remission in the autumn was dashed, it was she who brought her sister home from hospital for the last time on New Year's Eve, having been told that the cancer had returned in an aggressive form. She stayed with her sister and brother in law at Troedyrhiw until her sister passed away, and was joined by her daughter Caroline for some of that time. Afterwards she stayed on for a few days to support her brother in law and to help him with the paperwork.
Neither Mr Fowler for the claimants or Mr Troup for the defendants sought to suggest that witnesses for the other side were not witnesses of truth. In my judgment, that was a proper approach. Each witness in my judgment was impressive in his or her own way. At the end of the evidence, it was clear that apart from one issue, there was no substantial dispute about the essential facts in this case. Inevitability there were some differences of recollection on more minor details and some differences of perception or interpretation, but no more than to be expected in the very difficult times which each experienced in 2018 and 2019. Such matters do not impact upon the essential facts.
Another significant factor is that the couple did accept that the survivor would have to make a new will. Mrs Jones says that she advised them of this when taking their instructions on their 2009 wills, which were made in a hurry because of financial advisor's advice, and both acknowledged this.
This is also clearly acknowledged in a checklist for planning ahead which Mrs Davey says she was given by Macmillan Cancer Support on leaving hospital with her sister for the last time. This form is heavily relied upon by the claimants and I shall return to its detail. Mrs Davey says that she completed some of this form on 2 January 2019 with her sister and brother in law around the kitchen table at Troedyrhiw.
The first question on the form asks for details of any will, and in Mrs Davey's writing it is confirmed one was made and was with Mrs Jones the solicitor. Also in Mrs Davey's handwriting in that section are the following words “Leslie-Butcher's.” She says that Mr Bailey asked her to put that. These words then followed; “Eiron + Wendy equivalent/ Rest 50/50” and that split is then repeated. Under the reference to the will being with Mrs Jones, Mrs Davey has written “Get Alan to write own will.” She says that these words were the wishes expressed by her sister to which her brother in law agreed.
Mrs Jones and Colonel Jones each say that after Mrs Bailey's death at meetings with her husband, he made clear that he wanted to make a new will but, apart from being clear that the butcher's shop was to go to his nephew Leslie,...
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...2021, His Honour Judge Jarman QC, sitting as a High Court Judge, handed down judgment in the decision of Davey & Anor v Bailey & Ors [2021] EWHC 445 (Ch) which concerned alleged deathbed gifts made by an elderly The Decision Alan and Margaret Bailey both died at the age of 71 within a few m......
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...2021, His Honour Judge Jarman QC, sitting as a High Court Judge, handed down judgment in the decision of Davey & Anor v Bailey & Ors [2021] EWHC 445 (Ch) which concerned alleged deathbed gifts made by an elderly The Decision Alan and Margaret Bailey both died at the age of 71 within a few m......