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England and Wales Land Registry Adjudicator


You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Brereton v Brereton (Miscellaneous cases : Miscellaneous) [2016] EWLandRA 2015_0125 (05 February 2016)
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Cite as: [2016] EWLandRA 2015_0125

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PROPERTY CHAMBER

FIRST -TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF/2015/0125

 

BETWEEN

 

David Charles Brereton

Applicant

and

 

Neville Roy Brereton

Respondent

 

Property Address: The Oak, Clun, Craven Arms SY7 8QA

Title Number: SL216906

 

 

Judge Colin Green

 

At: Birmingham Employment Tribunal

On: 4., November 2015

 

Applicant Representation: Nicola Preston of counsel

 

Respondent Representation: David Mitchell of counsel

 

 

 

 

DECISION

 

 

 

Introduction

" 4. Gifts of Property

4.1 I give my freehold property Oak Barn Clun to my son David Charles Brereton and my freehold property Oak Farm Clun to my son Neville Richard Brereton

5. Gifts of Residue

I give the residue of my Estate to be shared equally between my sons David Charles Brereton and Neville Richard Brereton"

"No disposition of that part of the registered estate shown edged red on the plan by the proprietor of the registered estate is to be registered without a certificate signed by the Applicant for registration or the Applicant's Conveyancer that written notice of the disposition was given to David Charles Brereton of Oak Barn, Clun, Craven Arms, Shropshire, SYZ 8QA."

"A 50% beneficial interest under a constructive trust to that part of the Property which is the Bungalow known as The Oak and which us for identification purposes shown edged with red on the attached plan (the red land)"

Conveyancing History

Construction of the Will

"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 pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E 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 of Cornhill, and the survey of more recent authorities in Rainy Sky , per Lord Clarke of Stone-cum-Ebony JSC, 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 , 1400 that "courts will never construe words in a vacuum".

" 21. Interpretation of wills—general rules as to evidence.

(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)."

Estoppel

"I am writing to you concerning the legacy of Oak Barn left to you by your father in his Will. I have spoken to your brother Neville who has given me a plan of the boundaries of Oak Barn. I understand that Oak Barn itself is as shown in blue on the plan attached to this letter, however in the spirit of family harmony and in the hope that this will provide a better solution for you both, Mr Neville Brereton has suggested that the boundaries for the land transferred to you under the will are as drawn red on the plan. This will allow you more land than if you had just had Oak barn on its own.

I should advise you at this point that you would be wise to obtain independent legal advice in this matter from someone who can advise you on the rights and covenants that may be need to be included in the title.

Please can you confirm as soon as possible that you are happy with the boundaries as drawn to enable me to draw up a draft transfer If this suggestion causes any argument or dispute I will revert to the original intention of the will which was to transfer Oak Barn to you without any additional land.

I look forward to hearing from you shortly please."

Constructive Trust

"The relevant common law and law of the Administration of Estates Act 1925 were explained by Lord Radcliffe delivering the advice of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694 and were summarised by Buckley J. in In re Leigh's Will Trusts [1970] Ch. 277 , 281-282:

"(1) the entire ownership of the property comprised in the estate of a deceased person which remains unadministered is in the deceased's legal personal representative for the purposes of administration without any differentiation between legal and equitable interests; (2) no residuary legatee or person entitled upon the intestacy of the deceased has any proprietary interest in any particular asset comprised in the unadministered estate of the deceased; (3) each such legatee or person so entitled is entitled to a chose in action, viz. a right to require the deceased's estate to be duly administered, whereby he can protect those rights to which he hopes to become entitled in possession in the due course of the administration of the deceased's estate; (4) each such legatee or person so entitled has a transmissible interest in the estate, notwithstanding that it remains unadministered. This transmissible or disposable interest can, I think, only consist of the chose in action in question with such rights and interests as it carries in gremio. . . . If a person entitled to such a chose in action can transmit or assign it, such transmission or assignment must carry with it the right to receive the fruits of the chose in action when they mature.'

"A legatee's right is to have the estate duly administered by the personal representatives in accordance with law. But during the period of administration the legatee has no legal or equitable interest in the assets comprised in the estate."

"An assent or conveyance by a personal representative to a person other than a purchaser does not prejudice the rights of any person to follow the property to which the assent or conveyance relates, or any property representing the same, into the hands of the person in whom it is vested by the assent or conveyance, or of any other person (not being a purchaser) who may have received the same or in whom it may be vested."

Conclusion

Costs

 

 

 

 

 

 

Dated this Friday 5 February 2016

 

 

 

 

 

By Order of The Tribunal

 



[1] [2014] UKSC 2

[2] [1995] 1 AC 148 at 157F

[3] [1996] AC 669

[4] [2001] AC 102

[5] [1948] Ch 465


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