William John Dryden (as administrator of the Estate of Marjorie Robinson Thompson Deceased) v Lorna Young

Hearing dates: 16 April 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 10 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

HH JUDGE Davis-White KC (SITTING AS A JUDGE OF THE HIGH COURT)

HH Judge Davis-White KC:

Introduction

In these Part 8 proceedings I am asked to determine the true construction of certain gifts of residue in a will. The will is dated 26 May 2016 (the “Will”). It is the last will and testament of Marjorie Robinson Thompson (the “Deceased”). She died on 9 April 2020. Her address for many years was at an address in Cleadon Village, Sunderland, Tyne & Wear. The Will, and a codicil dated 20 October 2017, have been admitted to probate. Letters of administration dated 5 February 2021 have been granted to the claimant, Mr Dryden, as the attorney of Mr Terence Carney. Mr Carney is appointed executor and trustee under clause 2 of the Will. He is now retired but was a practising solicitor. It was he who drafted the will and codicil.

Under clause 10 of the Will the residue of the estate is given to fifteen organisations, each of whom receive one equal fifteenth part of residue. As regards seven of those organisations, I am asked to determine the validity of the gift and the identity of the organisation intended to be benefitted, with issues as to whether any gift lapses, and passes on intestacy, or is to be applied cy-près.

The seven gifts in question are as follows:

The Parties

As I have said, the Claimant is the person who has been granted letters of administration as attorney of the named executor, Mr Terence Carney. He is a solicitor. Before me, he was represented by Ms Harrison of Counsel.

The First Defendant, Ms Lorna Young is one of the next of kin of the Deceased. Her father and the Deceased were first cousins. Her father's mother and the Deceased's father were siblings. Under the Will, she was bequeathed certain items of jewellery, linen and the like.

At an early stage when questions arose about the identity of beneficiaries under the Will, Ms Young was represented by Weightmans LLP, a firm of solicitors. They continued to represent her in these proceedings until recently.

By order dated 13 June 2023, Ms Young was appointed under CPR r19.8(1)(b) to represent the interest of those who would inherit from the Deceased's estate on intestacy. She has filed a witness statement dated 3 April 2023. That witness statement deals with the family of the Deceased but throws no direct light on the issues that I have to resolve. It does however helpfully set out Ms Young's case (and, through her, those claiming on an intestacy).

By Notice of Change of Legal Representative dated 21 February 2024, Ms Young gave notice that Weightmans LLP had ceased to act for her and that she would now be acting in person. In correspondence she explained that this was in order “to reduce the costs burden on the Estate”.

By letter dated 13 March 2024, Ms Young informed the Claimant's solicitors that she had decided not to attend the hearing before me. She cited the considerable distance she would have to travel (from Stirlingshire) and that she has just started a new job and that it would be difficult to get away. Accordingly, she did not appear and was not represented before me, though of course I have taken into account her witness statement.

The Second Defendant, the Attorney General for England and Wales filed an acknowledgment of service in which it was confirmed that she did not intend to contest the claim. She did not appear and was not represented before me.

The Third Defendant, the Animal Defence Trust, is interested as a possible beneficiary of one of the seven gifts in question. It filed an acknowledgment of service that it did not intend to contest the proceedings. It did not appear and was not represented before me.

The Fourth Defendant, The Donkey Sanctuary, is also interested as a possible beneficiary of one of the seven gifts in question. It was represented before me by Mr Moffett of Counsel.

By order dated 13 June 2013, DJ Phillips made the representation order that I have mentioned as regards the First Defendant and joined the Third and Fourth Defendants. He also required notice of the claim to be given to 13 other charities pursuant to CPR r19.13. Of these the British Diabetic Association filed an acknowledgement of service on 17 July 2023. In my view, it being assumed to have filed within the relevant time limits, that association was thereafter joined as Defendant pursuant to CPR r19.13(5). This acknowledgment also indicated an intention not to contest the case.

As a result of CPR r19.13(6), on the face of it (and assuming the formality requirements to have been met) the other persons/bodies given notice pursuant to CPR r19.13 will be bound by my decision.

I am grateful to Counsel in the case for their helpful submissions and to the Claimant's solicitors for their work on the bundle and on obtaining further evidence after the trial as I explain below. As regards Mr Moffett he was, obviously, dealing with the case that was relevant to his client. However, his client had a more general interest in the case because in the event that any of the other six gifts failed in certain circumstances, there was a possibility that Mr Moffett's client would benefit by reason of clause 13 of the will directing the distribution of that gift amongst the remaining 14 bodies entitled under clause 10.

The Will

The clauses of the Will dealing with gifts are as follows.

Clause 4 makes various gifts to Lorna Young, the First Defendant.

Clause 5 gives £500 to “Diabetes UK” (no address is given). In fact, Diabetes UK is the name under which The British Diabetic Association operates.

Clause 6 gives certain personal possessions and the sum of £8,000 to Rosemary Pritchard.

Clause 7 gives certain personal possessions to Geoffrey Pritchard.

Clause 8 gives some personal possessions together with the sum of £5,000 to Christopher Treece.

Clause 9 gives £2,000 to Ann Small.

Clause 10 is the clause dealing with the disposal of the residuary estate and (after payment of debts, funeral and testamentary expenses) divides it into 15 equal parts and then gives a fifteenth part to each of 15 named entities. I shall return to the seven upon which I have to rule but set out in tabular form later in this judgment certain points arising in relation to the other eight gifts. As will become clear, one of the identifiers of the recipient of a gift in the case of the seven gifts that I have to consider is the address of the person receiving the gift. I therefore deal with the addresses of the other eight recipients and also comment on any other matters that appear to me to be relevant.

Clause 10(i) states the gift as being to The Royal Society for the Prevention of Cruelty to Birds. The address given is that of the Royal Society for the Protection of Birds (RSPB) and this is clearly the charity intended.

Clause 10(iii) the gift is stated as being to the League Against Cruel Sports. The address given is at Dean Street London.

Clause 10(v) is a gift to the World Wildlife Trust. The address given is at Plumtree Court London.

Clause 10(vi) is a gift to the Dogs Trust. The address given is Wakely Street London.

Clause 10(vii) is a gift to the National Trust. The address given is at Queen Ann Gate, London.

Clause 10(xiii) is a gift to “The Scottish Society for the Prevention of Vivisection”. The address given is at Queen's Ferry Street, Edinburgh.

Clause 10(xiv) is a gift to the International League for the Protection of Horses, no address is given.

Clause 10(xv) is a gift to the British Diabetic Association (using its name rather than, as in clause 5, the name that it operates under). The address given is at Parkway, London.

Clause 11 is a receipt clause regarding the entities in clause 10 which are referred to as “the before mentioned Charities and Beneficiaries”.

Clause 12 provides a direction that “any of the aforementioned Charities which shall involve animals shall use the bequest exclusively for the benefit of animal care only” (there being a potential tension with a direction regarding the gift to the Dogs Trust which provides that part of the monies are to be used to name kennels after three named dogs of the Deceased).

Clause 13 contains obvious...