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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tociapski v Tociapski [2013] EWHC 1770 (Ch) (20 March 2013) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2013/1770.html Cite as: [2013] EWHC 1770 (Ch), [2013] WTLR 1821 |
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CHANCERY DIVISION
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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![]() | Claimant |
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Defendant |
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165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
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Crown Copyright ©
MR ISAACS QC:
(4) Some reason for excluding Paul was thus necessary, but the reason given was not itself true or rational;
Also, the Claimant relies on the following facts and matters in addition to those stated in the amended Particulars of Claim in support of the existence of circumstances arousing suspicion:
"(1) There was no reason for the Testator to alter the provision made in the 2007 Will, which acknowledged both the equal status of his sons and Boris's special position/needs;
(2) The Pretended Will departed from his previous pattern of always including Paul, sometimes to the exclusion of Boris;
(3) Historically, the exclusion of Boris was always a reflection of Boris's troubled circumstances; there was no equivalent basis for excluding Paul;
(4) Some reason for excluding Paul was thus necessary, but the reason given was not itself true or rational;
(5) It was out of character for the Testator to include a provision explaining exclusion; Paul invites the Court to conclude that this originated with Boris and did not express any intention of the Testator's;
(6) The change from the draft will prepared by Patel & Co was one intended to ensure that no third party would have any control over the Testator's estate. This is unlikely to have originated with the Testator, was not in his interests, but was very much in Boris's interests. It is more likely than not that he did not understand the nature or effect of this provision.
(7) The original instructions to Wright Hassall were given by Boris, who was thus "active and instrumental" in the preparation of the Pretended Will;
(8) The confirmatory letters and draft will sent to the Property on 23 April 2007 are unlikely to have been read by the Testator and he may not even have been aware that they had arrived;
(9) He was suffering particular health problems at the time, particularly with respect to glaucoma;
(10) It was difficult for the Nurse to gain access to him at the Property and she was completely unable to do so from 1-4 May 2009, between the date of the instructions (23 April 2009) and execution of the Pretended Will (14 May 2009). The reasonable inference is that Boris was able to keep him isolated;
(11) Boris had control over the Testator, by reason of the latter's frailty, many illnesses, general dependence and their domestic arrangements;
(12) The Court can reasonably infer that this testator, who could not read for himself, would not have had control of the Pretended Will before or after its execution; while there is no evidence from which the Court can infer that he did read or understand it.
Those facts are, in my judgment, sufficient to -- in the language used in some of the older cases -- excite the vigilance and suspicion of the Court, such that a very high degree of proof is required for the Defendant, on whom the burden of proof lies, to show that the deceased knew and approved of the 2009 will in the sense that the 2009 will represents his testamentary intentions.
"PARTICULARS OF UNDUE INFLUENCE
(1) The Claimant repeats the Particulars set out above in support of his plea of want of knowledge and approval.
(2) In addition to the matters therein pleaded the Deceased was dependent upon the Defendant by reason of health complaints in addition to his diabetes and impaired eyesight including the consequences of a stroke suffered in about [date] and chronic angina together with the distress and vulnerability caused by double incontinence and difficulties with mobility.
(3) In the premises very little pressure from the Defendant would have sufficed to overbear the Deceased's will.
(4) Such pressure was brought to bear both generally and specifically in relation to the Deceased's testamentary wishes by reason of the Deceased's constant fear of the Defendant due to his irrational and violent behaviour his own dependence on the Defendant and the Defendant's clear wish that the Deceased should leave the whole of his estate to the Defendant in particular the Property.
(5) Further the Defendant had put the Deceased under pressure to make a new will by making the arrangements for him to attend at the offices of Patel & Co, Solicitors and when the draft will prepared by them did not accord with the Defendant's wishes in respect of representation to the Deceased's estate arranging for Wright Hassall to be retained in their place.
(6) There is no explanation rational or otherwise for the Pretended Will to have been made in the terms it was particularly having regard to the terms of the 2007 Will.
The one point on which I do not accept in full the Claimant's evidence relates to the allegation that the deceased had no reason to enter into the transfer. The reason I do not accept that in its entirety is because there is evidence that subsequently came to light arising out of the documentation produced by the deceased's solicitors who were involved at the time of the transfer that the execution of the transfer was apparently an estate planning measure, designed as a potentially exempt transfer within the meaning of s.3(a) of the Inheritance Act 1984. To the extent that the transfer was indeed such a measure then there would have been a legitimate reason for the transfer having been executed by the deceased.
"35. An inter vivos transaction can be set aside for undue influence, as a matter of public policy, even where there is no actual wrongdoing. The applicable principles are those laid down in Royal Bank of Scotland v Etridge (No. 2) [2001] UKHL 44 (HL)
which can be summarised as follows:-
The Claimant submitted that the transfer clearly calls for an explanation and that the only one available, namely that it was an estate planning measure is improbable and should be rejected. I accept that submission. There is no sufficient evidence before me to satisfy me that the deceased executed the transfer after full, free and informed thought. In reaching that conclusion I have taken into account the attendance note dated 12th February 2010, the date when the transfer was executed made by the deceased's solicitors of their meeting with him and the Defendant on that day, which I note was preceded by a meeting between the solicitors and the Defendant alone on 12th January 2010, during which, according to the solicitor's attendance note of that meeting, they were told by the Defendant that the deceased wished to transfer the property to the Defendant.