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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Pead v Prostate Cancer UK & Ors [2023] EWHC 642 (Ch) (22 March 2023) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2023/642.html Cite as: [2023] EWHC 642 (Ch) |
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2023] EWHC 642 ( Ch) | ||
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (
Ch)
IN
THE ESTATE OF JAMES MURRAY MCKAY DECEASED
Fetter Lane, London, EC4A 1NL |
||
2023 |
B e f o r e :
____________________
| STEVEN LESLIE PEAD |
Claimant |
|
- and – |
||
| (1) PROSTATE CANCER UK (2) MACMILLAN CANCER SUPPORT (3) CANCER RESEARCH UK (4) SALLY PEAD (5) LEAH GRACE JONES (a child) (by her litigation friend RICKY JONES)(6) JOSHUA PEAD (7) THE ESTATE OF LISA JONES DECEASED (represented by ADAM PEAD) (8) ADAM PEAD |
Defendants |
____________________
Sam
Chandler
(instructed by Withers LLP solicitors) for the First to Third Defendant
Hearing date 18 January
2023
____________________
Crown Copyright ©
2023
by circulation to the parties or their representatives by email and by release to the National Archive Deputy Master Teverson :
children
Andrew, Murray and Lydia McKay by his first marriage.
charities".
chattels
and jewellery to his
children
Andrew, Murray and Lydia McKay respectively.
"Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift."
charities
named in clauses 4.4 to 4.8 inclusive.
children
from his first marriage two of whom he had not seen for around 20 years. He had two stepsons - the Claimant Steven Pead who was married with three
children
and a granddaughter and Keith Pead who did not have
children.
children
from his will.
children
Andrew, Murray and Lydia McKay. There were to be pecuniary legacies of £10,000 to be put in trust for Leah Grace Jones until she reached 18, £1,000 for the Macmillan nurses at Kingston Hospital, Surrey, £1,000 for the Macmillan nurses at Worthing Hospital Sussex; £5,000 to be given to the Macmillan nurses UK; £5,000 to be given to Cancer Research UK; £10,000 to be given to Prostate Cancer UK; £20,000 to Adam Pead; £20,000 to Lisa Jones, and £20,000 to Josh Pead. There were to be gifts of
chattels
to Andrew, Murray and Lydia.
children
Andrew, Murray and Lydia and leave 75% of his residue to his stepson Steven Pead and 25% to his stepson Keith Pead after payment of the pecuniary gifts. A copy of the typed document on which Mrs Sartin made her handwritten notes is before me at page 324 of the bundle. The notes record the deceased as saying he had had no contact whatsoever with his
children
for 20 years.
charities.
It contains specific gifts of
chattels
to Andrew, Murray and Lydia in clauses 5, 6 and 7. Clause 10 directs that the residuary estate is to be held as to a 75% share for Steven Pead and as to a 25% share for Keith Pead. Clause 10.3 provided that if under clause 10 any share failed, such share should return to his residuary estate and be distributed to the other beneficiaries pro rata according to their shares. In Clause 11 the deceased declared he had not made any substantive provision in the will for his
children
as they had been estranged from him for some twenty years. Mrs Sartin states in paragraph 5 of her witness statement that the draft will was only ever intended to be an initial draft and that the words "for
checking"
were clearly marked on every page of this draft will.
charities.
In clause 5 he wrote the comments he wished to be included alongside the gifts to each of his
children.
In clause 10.1 he wrote 25% against Steven Pead's 75% share of residue. He did not however annotate how the remaining 50% was to be divided.
changes
which Mr McKay wished to be made to the draft". This paragraph appears to refer to two sets of notes but Mrs Hill in cross-examination said there were no separate handwritten notes. The handwritten notes of Mrs Hill on the draft will record the increases in the legacies to the
charities
and the comments the deceased wanted to be made alongside the gifts to his
children.
Mrs Hill says in paragraph 3 of her witness statement that the main
change
to be made related to clause 10 sub-headed "Gifts of Residue". She says that at the bottom of that page she made a note in her own handwriting as follows;-
'House 25% to Steven +25% Keith of sale proceeds+50% to residue'.
Mrs Hill says in paragraph 3 she then made a handwritten note at the top of paragraph 10 adjacent to the sub-heading as follows:-
'÷ between all those mentioned in clauses 4.1-4.8'."
charities
and the words the deceased wanted to be inserted alongside the gifts to his
children.
It then records the deceased's instructions relating to the sale proceeds of the house and the division of the residue
changes
as follows:-
"He would like the sale proceeds of the house to be divided as to 25% to Stephen Peed, 25% to Keith Peed with a final 50% going to Residue. The Residue is to be divided between those people mention in clauses 4.1 to 4.8 in equal shares."
changes,
he could always execute a replacement will at a later stage.
"I went through the letter with him explaining the basis of my questions and suggesting that he signed the present will as a holding Will and that he went through my letter when it arrived with him and would let us know whether or not he wanted to make the relevant amendments.He agreed."
cheque.
charities
save that it fails to record the deceased's instruction to increase from £5,000 to £6,000 the legacy under clause 4.7 to Cancer Research UK. It is accepted by BBMW that Cancer Research UK should have received a gift of £6,000. Under clauses 5, 6 and 7 the will records the comments the deceased wanted to appear alongside the gifts to his
children.
The will contains a new clause 8 disposing of shares in the deceased's property 26 Sea Lane. By clause 8.1 a 25% share of the deceased's property is given to Steven Pead with a provision for substitution of issue. By clause 8.2, a 25% share is given to Keith Pead who was recorded by Mrs Sartin on 13 July 2016 as having no
children.
By clause 8.3, the remaining 50% share is directed to accrue to and be added to the residuary Estate under Clause 10 of the will. Clause 10 contains administrative trusts. The disposition of residue is contained in clause 11 which provides:-
"Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift".
Chandler
puts it in his skeleton argument, an inauspicious start. A Probate Claim form was issued on 8 March 2022 naming BBMW as the Defendant. It stated that the legal basis for the claim was rectification. It asserted that the Defendant solicitors were negligent in that the Will, as executed, did not give effect to the deceased's intentions. It did not name any of the
charities
or other beneficiaries as Defendants.
charities,
he then wanted them included in the equal shares of residue. The Claimant in paragraphs 21 and 22 speculated on what his stepfather intended.
charities
as Defendants. The second claim was accompanied by Particulars of Claim with annexures.
charities
on 26 July 2022 opposing the claim for rectification. On the question of how the residuary estate was to be divided, it was contended that on a proper construction an equal division between the beneficiaries named at clauses 4.1 to 4.8 with one share per sub-clause was appropriate. A Reply to Defence was filed dated 15 September 2022.
charities
and the Claimant the witness statement of Mrs Sartin dated 7 December 2022 together with a notice under section 2(1) of the Civil Evidence Act 1995 with regard to her evidence accompanied by a medical report and a witness statement of Mrs Hill dated 7 December 2022. The Claimant served his own second witness statement dated 16 December 2022.
charities
and on the Claimant's solicitors, Cognitive Law. I was referred on this issue to the judgment of Miles J. in Ocado Group plc v McKeeve [2021]
EWHC
3542 (
Ch)
given at a directions hearing in committal proceedings. The judge granted an application by the Claimant for an order pursuant to CPR 81.7(1) compelling two potentially relevant witnesses to attend the trial of the committal application so that they could be cross-examined by both sides.
2023.
I accepted the submission of Mr Clarke that Mrs Hill and Mrs Sartin were not in substance or reality witnesses of the Claimant. Their position has some similarity to that of attesting witnesses who are treated by the probate court not as witnesses of either party but of the court. The court has in a probate claim its own interests in the administration of justice and has a reason to seek to understand the events as completely as possible. The position is analogous in a claim to rectify a will on the basis that it fails to carry out the testator's instructions where the witness statements of the solicitor or solicitors who took the deceased's instructions for the will were prepared by the solicitors or their firm without input from the Claimant's solicitors. I concluded that it would be right in the circumstances to give both parties the right to cross-examine Mrs Hill rather than treating her evidence as that of the Claimant. I concluded that it would be right for Mrs Hill to be cross-examined first on behalf of the Claimant and for the
charities
by their counsel then to have the opportunity to cross-examine Mrs Hill.
Chandler
on behalf of the
charities.
The Claimant confirmed that he was not present at any of the attendances by the deceased at the offices of BBMW. I see no reason to reject any of the Claimant's evidence regarding the background to the deceased making the will nor his
characterisation
of the deceased.
Chandler
on behalf of the
charities.
I gave Mrs Hill the opportunity to say anything further to the court in reply following her cross-examination but she did not wish to do so.
"If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence-(a)of a clerical error; or(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions."
Ch
171 at 180D
Chadwick
J. said in relation to s20(1):-
"The subsection requires the court to examine three questions. First, what were the testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given in connection with his will to understand those instructions."
Chadwick
J. said:-
"In expressing that view I have kept in mind that, although the standard of proof required in a claim for rectification made under section 20(1) of the Act of 1982 is that the court should be satisfied on the balance of probability, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary."
EWHC
(
Ch)
2696, Norris J., referred to the passage at page 184 in
Chadwick
J's judgment and said:-
"This emphasises that speculation is no basis upon which to interfere with a formal expression of testamentary intentions. One must be confident that the will as expressed does not record the instructions given because of error or misunderstanding, "confident" in the sense of being satisfied on the balance of probabilities by evidence of a quality commensurate with the inherent probabilities of the case itself."
Chadwick
J. stated:-
"I should observe, however, that the weight to be given to the fact of execution is diminished by the difficulty in construction which the proviso to clause 11(a) presents. It is artificial to assume that a testator must know what he is doing if he uses language the effect of which cannot be ascertained without a decision of the court."
charities
referred to in clauses 4.4 to 4.8 to share in his residuary estate.
"The Residue is to be divided between those people mention in clauses 4.1 to 4.8 in equal shares."
charities.
He submitted that in ordinary language "people" is used to refer to living persons.
(i)there is no reference in any of the deceased's typed or handwritten notes to the
charities
sharing in residue;
(ii) the draft will sent to the deceased following the meeting on 13 July 2016 did not leave any part of residue to the
charities;
(iii) there is no attendance note or record of any discussion with the deceased thereafter concerning the reasons for making a very significant
change
in order to give the
charities,
on their case, 62.5% of the residuary estate;
(iv) the increases in the pecuniary legacies to the
charities
which formed part of the deceased's instructions to Mrs Hill on 27 July 2016 make little sense if the deceased also intended to give them a share of his residuary estate;
charities,
Mr
Chandler
submitted that the will is the product of the deceased's instructions, which clearly
changed
after the 13 July attendance, as expressed to Mrs Hill at the 27 July attendance. He submitted that the closest evidence of the deceased's intentions were Mrs Hill's contemporaneous manuscript notes of his instructions in the form of her manuscript annotations on the draft will. Mr
Chandler
submitted that Mrs Hill's manuscript annotation alongside clause 10:-
"÷ between all those mentioned in Clauses 4.1-4.8"
showed quite clearly that the deceased intended to benefit the
charities
and was fatal to the Claimant's rectification claim.
Chandler
submitted that there is nothing unusual or surprising about referring, in a note of a meeting, to a group which includes
charities,
as "people". He submitted that the Claimant's case depended on an overly literal or technical interpretation of that word.
Chandler
submitted the Claimant's reliance on the word "people" in the attendance note was inconsistent with Mrs Hill's manuscript annotation on the draft will which referred to "all those mentioned" in all eight subclauses. Mr
Chandler
submitted that had Mrs Hill understood the deceased's instructions to be that only family members named in clauses 4.1-4.3 should share in residue she would have referred to those three subclauses alone.
Chandler
submitted that furthermore, the Claimant's position was inconsistent with the evidence of Mrs Hill in her witness statement of 7 December 2022. He relied in particular on paragraph 6 in which Mrs Hill states:-
"In view of matters reoffered (sic) to above and from my clear recollection of instructions received as supported by my contemporaneous attendance note [of] 27 July 2016, my clear recollection is that the Testator Mr McKay intended the Gift of Residue to be divided equally between all the beneficiaries referred to in clause 4.1 to 4.8 of his Will and that no other meaning was intended by him."
Mr
Chandler
also relied on Mrs Sartin's statement in paragraph 9 of her witness statement that:-
"it was my understanding from instructions and from Alison Hill's attendance note 27 July 2016 that the Testator intended the residuary estate to be shared equally between the beneficiaries named in clauses 4.1-4.8 that is to say to be divided equally between them."
charities
and to leave the residuary estate in unequal shares (75/25) between the deceased's two step-
children
with in the case of Steven Pead a provision for his issue to take by substitution if he failed to take a vested interest.
changes
he wanted to be made to it. These included increasing the amounts of the pecuniary legacies to each of the
charities.
The gift of a 75% share of residue to Steven Pead was shown to be amended to 25%. This left 50% of residue undisposed of.
changes
that the deceased wanted to be made to the draft will fall to be considered. Mrs Hill made manuscript notes on the draft will and after the meeting prepared an attendance note. The attendance note on the will file is a typed document. These are the only documents available to the court which record the instructions given by the deceased to Mrs Hill on 27 July 2016.[1]
Chandler
submitted that the Claimant's approach is overly literal and adopts a too technical or dictionary-based approach. He points out (i) that in the manuscript annotation against clause 10, Mrs Hill referred to division between "all those mentioned in clauses 4.1 to 4.8" (emphasis added) and that (ii) both the typed attendance note and the manuscript annotation on the draft will refer to clauses 4.1-4.8. Mr
Chandler
submits that had Mrs Hill intended by her reference to "people" only to refer to the beneficiaries mentioned in clauses 4.1 to 4.3 then she could and would have referred to those three subclauses alone.
"I don't know why I used it".
She said that "people" was not what he [the deceased] said to her and was just a generic term she had used in her attendance note.
children
to be included. She said she was clear that residue was to be divided between all those mentioned in clauses 4.1 to 4.8.
charities
that equal division meant divided into eight. Mrs Hill said:-
"That is what I am saying. One eighth each".
Mr Clarke then pointed out the words in her attendance note "all of those mentioned", Mrs Hill replied:-
"I don't recall him specifying by clause. His instructions were between the people mentioned in clauses 4.1 to 4.8".
charities
would receive 5/8ths of residue if the equal division was by subclause or 5/11ths if by number of named beneficiaries.
2023
it is stated that the second draft will was prepared from Mrs Hill's notes and was in the precise terms of the engrossed will of 3 August 2016.
"Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift."
"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."
"(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 the 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 its interpretation."
charities
Mr
Chandler
submitted that the issue was straightforward. He submitted that the extrinsic evidence including the attendance note of the 27 July attendance was plain and made it clear that an equal division was intended. He further submitted that the structure of clause 4 suggested it was to be equal division by sub-clause. In my judgment if equal division had been intended it would have been by named beneficiary not by sub-clause.
charities.
Nor do I consider that this was established by the evidence of Mrs Hill or Mrs Sartin.
charities.
The legacies to the
charities
range in size between £2,000 and £12,000. The legacies to the family members start at £10,000 to the deceased's step great granddaughter and increase by generations to £20,000 and £50,000.
charities
that if not capable of being remedied by construction, clause 11 should be rectified to reflect such equal division but no further.
(1) That the rectification claim fails.
(2) Clause 11 of the will should be construed as providing for the residuary estate to be divided between each beneficiary named in clauses 4.1 to 4.8 pro rata according to the proportion that that beneficiary's legacy bears to the total gifts made under clause 4.
2023.
I would be grateful to receive typographical corrections from counsel by 4.30pm on Tuesday 21 March
2023.
Note 1 Mrs Hill was referred to a letter dated 11 October 2022 written by BBMW in reply to a letter from the Claimant’s solicitors, Cognitive Law dated 30 September 2022. The letter was written under the reference of Mr Tim Deacon but states that the contents of Cognitive Law’s letter had been“carefully considered by our Mrs Hill”. Mrs Hill said she had never seen Cognitive Law’s letter and had not approved Mr Deacon’s reply to it. Under the heading “The Attendance Note dated 27 July 2016”, the letter states that the reference to “those people” was wording used to encompass the group rather than the non-
charitable legatees. The letter at the top of the second page then states:-
“The handwritten notes referred to clauses 4.1 to 4.3 rather than 4.1 to 4.8 but the deceased was very clear that the residue was to be divided equally between all those mentioned in clause 4”.
Mrs Hill said there were no more handwritten notes. The reference to the handwritten notes referring to clauses 4.1 to 4.3 was unexplained before me. I have proceeded on the basis that the only handwritten notes were the manuscript annotations made by Mrs Hill on the draft will and that those notes were mis-read by Mr Deacon. It is unsatisfactory that this potentially significant error was not corrected by anyone on behalf of BBMW prior to the trial.
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