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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Piercev & Anor v Barton & Anor [2023] EWHC 3016 (Ch) (29 November 2023) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2023/3016.html Cite as: [2023] EWHC 3016 (Ch) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
(1) JENNY PIERCE (2) REBECCA PARKMAN |
Claimants |
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- and - |
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(1) PAUL BARTON (2) WARREN DAVID BARTON (by his litigation friend JAVIER LOVELL) |
Defendants |
____________________
Cheryl Jones (instructed by John Hodge Solicitors) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 7 September 2023
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Crown Copyright ©
HHJ Paul Matthews :
Introduction
The claim
"1. An order that Javier Lovell of [address] be appointed as the litigation friend for Warren David Barton, the Second Defendant.
2. A direction from the Court to the Claimants as the Executrices of the Estate of Malcolm Barton ('the Deceased') as to whether or not they should issue court proceedings for:
a. A declaration as to whether or not the Legal Charge dated 17 November 2006 ('the Legal Charge') between Malcolm Barton ('the Deceased') and Elizabeth Barton as lender and the First Defendant as borrower to charge the property Flat 2, 35 Upper Church Road, Weston-super-Mare BS23 2DX ('the Property') with payment of £87,727.52 is extinguished by the operation of sections 15 and 17 of the Limitation Act 1980. And/or
b. A declaration as to whether or not there is any contract of loan under which the First Defendant owes the Deceased the £87,727.52 sum in the Legal Charge and if so whether a claim for any sum due under the contract of loan is statute barred under section 20 of the Limitation Act 1980 or otherwise. And/or
c. A construction summons as to the meaning and effect of clause 5 of the Will of the Deceased dated 2 November 2015 as to whether or not either (1) clause 5 is of no effect or (2) clause 5 operates so as to release the Legal Charge.
d. A direction from the Court that the Claimants are to have their costs of issuing and conducting such proceedings in any event and on an indemnity basis and regardless of the outcome
e. A direction from the Court as to whether any other parties are to have their costs of issuing conducting such proceedings in any event and on an indemnity basis and regardless of the outcome.
3. A direction from the Court as to whether any party is to issue a claim for rectification of clause 5 of the Will by a set date and in default of the same is to be barred from bringing any such claim or raising such a claim as a defence in any possession claim or other proceedings.
4. A direction from the court in relation to any proceedings directed to be issued by the claimants under paragraph 2 above or by any party under paragraph 3 above, as to whether following the issue of proceedings either (1) the Claimant should remain neutral in the proceedings and allow the First Defendant and the Second Defendant to pursue or defend their respective positions or (2) the Claimant should assist the court by arguing the First Defendant's position by way of a representation order under CPR 19.7A or otherwise; or (3) the Claimant should take some other role in the proceedings.
5. A direction from the Court to the Claimants as the Executrices of the Estate of Malcolm Barton as to what if any steps they are to take to seek to recover the Legal Charge sum of £87,727.52 for the Estate of the Deceased against the Flat and/or from the First Defendant.
6. Further or other relief.
7. That provision may be made for the costs of this application."
Background
"I then asked Mr Barton how his assets should be divided in his will. Mr Barton instructed me that he would like his home, 101 Silverberry Rd, to go to Warren at age 21 and he would like to relieve the charge on the flat his son is living in. Mr Barton explained that if Warren is under 21 at the time of his death he would like 101 Silverberry Rd to be let in the income paid to his son Paul until Warren reaches 21. I advised that this is quite complex, but I will look into how it can be done if he so wishes. Mr Barton said that he would consider it and let me know how the property should be dealt with. I asked Mr Barton how his cash assets should be divided. He instructed me that two thirds should go to Warren and the remaining one third to Paul."
"a. I give to my son Paul Barton of Flat 2, 35 Upper Church Road, Weston-super-Mare North Somerset BS23 2DX free of all taxes Flat 2, 35 Upper Church Road, Weston-super-Mare North Somerset BS23 2DX and if this gift fails the provisions as set out in the following subparagraph shall apply.
b. By substitution I give the above give to my grandson Warren David Burton subject to his surviving me and attaining 21 years of age. "
Clause 5a
"it's always been the understanding since moving to Weston with Malcolm and Elizabeth Barton that the bungalow would always go to Warren Barton and the flat at upper church road Weston would always go to there son Paul."
Construction
Modern authority
"17. Until relatively recently, there were no statutory provisions relating to the proper approach to the interpretation of wills. The interpretation of wills was a matter for the courts, who, as is so often the way, tended (at least until very recently) to approach the issue detached from, and potentially differently from, the approach adopted to the interpretation of other documents.
18. During the past forty years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.
19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30.
20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, 'No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.' To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that '[c]ourts will never construe words in a vacuum'.
21. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts – see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F.
22. Another example of a unilateral document which is interpreted in the same way as a contract is a patent – see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.
23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should 'place [itself] in [the testator's] arm-chair', is consistent with the approach of interpretation by reference to the factual context.
24. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act ('section 21'). Section 21 is headed 'Interpretation of wills – general rules as to evidence', and is in the following terms:
'(1) This section applies to a will –
a) in so far as any part of it is meaningless;
b) in so far as the language used in any part of it is ambiguous on the face of it;
c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.'
25. In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that 'evidence' is admissible when construing a will, and that that includes the 'surrounding circumstances'. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question.
26. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator's actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared)."
Older authority
"It is admitted that the testator had no leasehold property, either at Kensington, or any where else in the county of Middlesex, unless these mortgaged properties are to be so considered; and it is obvious, from the nature of the limitations and provisions of the Will, that, if they are at all to pass, it is the absolute interest in them, and not the mere legal estate, that is to be considered as being disposed of. It seems very clear that the testator conceived that there was some property in the town of Kensington which he might dispose of as his own; since it is, otherwise, impossible to account for his specifying that particular place."
"Here … the description of 'leasehold messuages, &c,' is applicable to the mortgaged premises; and the residuary clause has other subjects on which it may operate, while, if this property is held to be included in it, there is nothing to answer some of the words of local description used in the form of clauses."
"The unmistakable reference to the lands as those comprised in the settlement made on the marriage of his niece, Mrs. Richards, shews a clear intention to dispose of the property to which he was entitled under the trusts of that instrument, and, although he mistook the nature of his interest in that property, a gift of it as land, instead of as money arising from its sale, does not prevent his interest in it from passing to the person whom he clearly intended should take what he was himself entitled to under the settlement, to which he pointedly refers. What, after all, is a devise of land ? It is only a devise of such estate or interest as the devisor has in the land, and prima facie whatever estate or interest the testator has in land will pass under a devise of it by that name, if it is specifically referred to so as to shew that the testator had that particular land in his mind, and if there is nothing else to answer the description."
Lopes LJ (at 359) and Kay LJ (at 361) said words to the same effect.
"In my opinion the plaintiff is entitled. The testatrix was in possession of this property, and the devise was intended to pass and sufficed to pass such interest as she had, which was not that of an owner in fee, but was that of a mortgagee. This seems to me to be consistent with the decisions of Sir W. Grant in Woodhouse v. Meredith (1), and of Stuart V.-C. in Burdus v. Dixon (2), and of the Court of Appeal in In re Lowman. (3) In the last case Lindley L.J. (8) uses language which is singularly appropriate to the present case: 'What, after all, is a devise of land? It is only a devise of such estate or interest as the devisor has in the land, and prima facie whatever estate or interest the testator has in land will pass under a devise of it by that name, if it is specifically referred to so as to shew that the testator had that particular land in his mind, and if there is nothing else to answer the description'."
"Suppose that when the testator made the codicil containing this devise he had not been, as he was, seised in fee as absolute owner, but had only been mortgagee, could any one say, leaving out for the present any question of the effect of the Conveyancing Act, 1881, that the mortgage-money would have passed under the devise ? I should say, No; notwithstanding the case of Woodhouse v. Meredith (1), which has been relied on by the Respondent. If a testator specifically devises a particular estate, which is only a mortgage estate, and not the money charged on it, the devisee is only a trustee for the persons entitled to the money; but in the case cited the testator had subjected the estate devised to special limitations in the same way as his absolute property; and the Master of the Rolls says (2): 'It is admitted that the testator had no leasehold property, either at Kensington, or anywhere else in the county of Middlesex, unless these mortgaged premises are to be so considered ; and it is obvious, from the nature of the limitations and provisions in the will, that, if they at all pass, it is the absolute interest in them, and not the mere legal estate, that is to be considered as being disposed of.' It would be ridiculous to say that in that case the testator was only intending to pass the legal estate."
"That argument might have some force if the testator had made the codicil when he was mortgagee; but that was not so, and the contention cannot prevail".
In other words, when the testator made his will, he did own the estate, and not just a mortgage. So his intention was to give the estate, not a mere mortgage. In the present case, of course, when Malcolm Barton made his will, he was the owner of only the mortgage of the lease. He had never been the owner of the lease itself.
"It will be observed that the testator was not mortgagee in possession, and the observations of the Master of the Rolls must be read with reference to the facts of that case. The position of a mortgagee in possession is peculiar. The tenants are his tenants, and he is their landlord. He treats himself as owner, and unless and until redeemed he naturally regards himself as owner. I cannot doubt that Mrs. Carter intended to give to the plaintiff all her interest in this property the rents and profits of which were being received by her, and there is no rigid rule of law which precludes me from giving effect to this intention."
"as a matter of ordinary legal language, it is clear that corporeal hereditaments, such as farms, are land. It is equally well established that incorporeal hereditaments, such as rentcharges, are also land and real property, and I see no reason why in this case I should cut down the meaning of 'land' – 'my St Keverne land' – so as to exclude any land of any nature which the testator had in that particular parish."
"whatever estate or interest the testator has in land will pass under a devise of it by that name, if it is specifically referred to so as to shew that the testator had that particular land in his mind, and if there is nothing else to answer the description" (emphasis supplied).
The decision in Re Lory's Will Trusts seems to me to represent a more realistic approach to the construction of wills in modern times, not trying to be too prescriptive in advance, but taking the will as a whole and setting it in the context in which the testator made it.
Discussion
Conclusion
Limitation
Relevant facts
"The borrower acknowledges that the property stands charged with the payment of £87,727.52 capital only and that there is no interest payable on this capital sum and no interest secured by the charge".
"If the estate is administered in accordance with the will the £87,727.52 needs to be repaid to the estate. You would need to repay £58,485.02. This is because two thirds of the assets in the estate are left to Warren David Barton (Warren) and one third to you after the gift of the property at 101 Silverberry Rd to Warren."
The letter concluded by advising the first defendant to take independent legal advice.
"It sets out in detail that the will, as it stands, requires you to repay £58,405.02 to the estate. You were advised to take independent advice."
It is not strictly accurate to say that the will (even "as it stands") requires Paul to pay money to the estate. If there is a liability to pay, it is because there is a debt secured by the charge. What I understand the writer to mean is that, on his view, the will does not extinguish the debt. But nothing turns on that.
Question for the court
Law
"5. An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
6. (1) Subject to subsection (3) below, section 5 of this Act shall not bar the right of action on a contract of loan to which this section applies.
(2) This section applies to any contract of loan which—
(a) does not provide for repayment of the debt on or before a fixed or determinable date; and
(b) does not effectively (whether or not it purports to do so) make the obligation to repay the debt conditional on a demand for repayment made by or on behalf of the creditor or on any other matter;
except where in connection with taking the loan the debtor enters into any collateral obligation to pay the amount of the debt or any part of it (as, for example, by delivering a promissory note as security for the debt) on terms which would exclude the application of this section to the contract of loan if they applied directly to repayment of the debt.
(3) Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.
[ … ]
15. (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
[ … ]
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
[ … ]
17. Subject to—
(a) section 18 of this Act; …
(b) […]
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.
[ … ]
20. (1) No action shall be brought to recover—
(a) any principal sum of money secured by a mortgage or other charge on property (whether real or personal); or
(b) proceeds of the sale of land;
after the expiration of twelve years from the date on which the right to receive the money accrued.
38. (1) In this Act, unless the context otherwise requires—
[ … ]
"land" includes corporeal hereditaments, tithes and … any legal or equitable estate or interest therein … but except as provided above in this definition does not include any incorporeal hereditament;
[ … ]
(7) References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land or, in the case of […] tithes, to distrain for arrears of […] tithe, and references to the bringing of such an action shall include references to the making of such an entry or distress."
Discussion
"97. This decision of Buckley J [in Cotterrell v Price] reported at [1960] 1 WLR 1097 and a passage in his judgment at page 1102 has been treated by some as authority for the proposition that once the mortgagee's right to recover the principal sum is statute barred, he loses his status as a mortgagee and 'He can no longer sue for possession or for foreclosure, nor can he redeem a prior mortgage.' See Cheshire & Burn's Modern Law of Real Property (17th Ed) at page 764. I can see the force of this if there is no longer any enforceable debt to be secured.
98. Mr Driscoll did not rely on Cotterell v. Price to support a submission that the Bank's right to possession was statute barred in consequence of its concession that its right to sue for the mortgage debt was statute barred. As he pointed out it was conceded by counsel in that case that the mortgagee's remedies by action against the mortgagor under the mortgage were statute barred: see page 1100. Basing himself on that concession Buckley J concluded that the mortgagee could no longer sue for possession as his estate had come to an end and he lost his status as a mortgagee. In view of the concession there was no need for the judge to address the points arising under the Limitation Act. I do not think that Cotterill v Price is authority for the proposition that the right to possession is statute barred simply because the right to recover the principal debt is statute barred."
Conclusion