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Cite as: [2012] EWHC 1414 (Ch)

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Neutral Citation Number: [2012] EWHC 1414 (Ch)
Case No: 1BM30205

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Birmingham Civil Justice Centre
33 Bull Street
Birmingham B4 6DS
25.5.2012

B e f o r e :

MR JUSTICE MORGAN
____________________

Between:
LYNN DRAKEFORD
Claimant
- and -

RUSSELL COTTON
MICHELLE STAIN
Defendants

____________________

Mr Mark Diggle (instructed by Straw & Pearce) for the Claimant
Mrs Nicola Preston (instructed on Public Access) for the Defendants
Hearing dates: 15th, 16th and 17th May 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Morgan:

    Introduction

  1. The three parties to this dispute are two sisters and a brother. They are the children of Mr Ernest Cotton and Mrs Mary Cotton. Ernest Cotton died on 7th February 2008, in his early 80s, and his wife, Mary Cotton, died on 7th August 2008, aged around 75. The three siblings are the Claimant (Mrs Lynn Drakeford), the First Defendant (Mr Russell Cotton) and the Second Defendant (Mrs Michelle Stain). The Claimant is the eldest, the First Defendant is next and the Second Defendant is the youngest sibling.
  2. The principal issue in the case is whether the monies in two building society accounts, which were in the joint names of Mrs Mary Cotton and Mrs Stain prior to Mrs Cotton's death on 7th August 2008, formed part of her estate (so that they are to be distributed under the terms of her will to the three siblings in equal shares) or whether an arrangement was made prior to her death whereby the money in those accounts was held in such a way that it passed to Mrs Stain by survivorship and did not form part of Mrs Cotton's estate. Mrs Drakeford contends for the former of these alternatives. Mrs Stain contends for the second. She is supported in this stance by her brother, Mr Russell Cotton, even though it would be in his own financial interests to contend for the former alternative.
  3. There is a further issue as to a residential property, 19 Berkswell Road, Coventry. This was the home of Mr and Mrs Cotton senior and was originally the family home of all the parties to this dispute. Pursuant to the terms of an earlier deed of settlement, the property was held, after the death of Mrs Cotton on 7th August 2008, by the three parties to this dispute on trust for themselves. The property was let and rental income was received and certain expenses were incurred. There is now an issue as to the amount of those expenses.
  4. The third and last issue relates to the extent of the jewellery owned by Mrs Cotton at the time of her death. It is agreed that all such jewellery forms part of her estate. The Claimant alleges that the Defendants or one of them have taken certain items of jewellery. This allegation is denied and I am asked to determine this dispute.
  5. Unfortunately, the parties to this dispute have fallen out very badly. I heard a considerable amount of evidence as to what caused the rift in the family and the period during which it continued. I was also given detailed evidence as to the relationship between Ernest and Mary Cotton and their three children. Much of that evidence was disputed. In the course of this judgment, I will make any necessary findings of fact on those matters. It will not be necessary to go into much of the detail of the evidence and it is probably better that I do not perpetuate in this judgment the many bitter things which have been said in the course of the hearing.
  6. Mr Diggle appeared on behalf of Mrs Drakeford and Mrs Preston appeared on behalf of Mrs Stain and Mr Russell Cotton.
  7. The events of 1997

  8. In 1997, Ernest and Mary Cotton won about 107,000 on the National Lottery. They evidently took some legal advice as to how they should order their affairs in the light of this substantial win. The first thing they did was to make their wills. Mrs Cotton's will was in evidence. Ernest Cotton's will is not available but the evidence was that his will mirrored that of his wife. Her will was dated 16th May 1997. It provided that if her husband survived her, then her estate would pass to him. If her husband did not survive her, then she appointed her three children as the executors and trustees of her will and left her estate on trust for them in equal shares. The will did not make any provision for personal chattels, such as jewellery. As stated above, Ernest Cotton did die before Mrs Cotton. Although Mrs Cotton did wish, in the period from July to August 2008, to make a new will (in the way I will later describe) she died without having made any further will. Thus, the 1997 will is her effective last will.
  9. On 7th August 1997, Ernest Cotton entered into a deed which created a settlement. The initial property which was the subject of the settlement was the sum of 10. By that deed, Ernest Cotton appointed himself and his three children as the original trustees of the settlement. The settlement was stated to be irrevocable. The principal trust created by the settlement required the trustees to hold the trust property for the benefit of discretionary beneficiaries, who were Ernest Cotton, Mary Cotton and Ernest Cotton's children and grandchildren. The settlement also provided for a further trust which was to apply from the date of the death of Ernest Cotton or of Mary Cotton, whichever should be the later. Under this further trust, the trust property was to be held on trust for the three children of the settlor (i.e. the parties to the present dispute) in equal shares. On the same day as he created the settlement, Ernest Cotton transferred his property at 19 Berkswell Road, Coventry to the trustees of the settlement. That property thereafter formed the only asset of any substance in the settlement. Ernest and Mary Cotton continued to live at 19 Berkswell Road for the remainder of their lives. When Mrs Cotton died on 7th August 2008, the property was, pursuant to the terms of the settlement, held by the parties to this dispute on trust for themselves in equal shares.
  10. The building society accounts

  11. Over the years, Ernest and Mary Cotton had a number of accounts with the Coventry Building Society. It seems likely that most of the money in those accounts came from the lottery win in 1997. It is not necessary to describe the various accounts which they held over the years. It is sufficient to refer to the two accounts which they held in 2008 before Ernest Cotton died on 7th February 2008.
  12. The accounts were numbered 67240412 and 550603255. The accounts were of different types but it is convenient to describe these accounts by reference to the way in which they were operated by the account holders at all material times. The first account was operated as a deposit account and the second account was operated as a current account. I will refer to these accounts as the deposit account and the current account, respectively. The deposit account did not have a passbook but the current account did have a passbook.
  13. Immediately prior to Ernest Cotton's death on 7th February 2008, both accounts were in the joint names of Ernest and Mary Cotton. I was not given any evidence as to the circumstances in which those accounts were opened in joint names or were transferred into joint names. At his death, the sums in the accounts were 49,186.98 and 2,622.08. It is accepted that immediately following Ernest Cotton's death, the money in the accounts was owned legally and beneficially by Mrs Cotton.
  14. On 14th February 2008, Mrs Cotton went with her daughter Mrs Stain to the building society's branch in Coventry and transferred the two accounts into the joint names of Mrs Cotton and Mrs Stain. I was not given any evidence as to the terms and conditions which applied as between the building society and the account holders. The passbook for the current account stated that the number of signatures required (presumably for a withdrawal) was one.
  15. Although this was not accepted at all material times, by the end of the trial it came to be accepted that the effect of the accounts being transferred into joint names on 14th February 2008 was that the accounts were held by the joint account holders on trust for Mrs Cotton alone. In other words, the fact that Mrs Stain was a joint account holder did not at that stage give her any beneficial interest in the money in the accounts. The Defendants say that this position changed as a result of certain statements made by Mrs Cotton to Mrs Stain and others in the middle of June 2008. The Defendants say that the position following those statements was that the joint account holders held the money in the accounts on trust for Mrs Stain alone, or on trusts under which both Mrs Cotton and Mrs Stain were beneficiaries. It will be necessary to describe in greater detail in due course, what are said to the precise beneficial interests held by Mrs Cotton and Mrs Stain in the latter event.
  16. Between 7th February 2008 and Mrs Cotton's death on 7th August 2008, the movements in the deposit account were as follows. Interest was added monthly to the account. Immediately after interest was added to the deposit account, the net amount of the interest after tax was transferred (presumably pursuant to an automatic instruction to that effect) to the current account. In the period from 7th February 2008 to 7th August 2008, there was no other payment into or withdrawal from the deposit account. Thus on 7th August 2008, the balance of the deposit account was again 49,186.98, the same as the balance on 7th February 2008. Following Mrs Cotton's death, Mrs Stain made a withdrawal of 25,000 on 8th September 2008 and then on 12th September 2008, she withdrew the final balance of 24,232.21 and closed the account. The two sums referred to (totalling 49,232.01) were paid into an account numbered 944894352, apparently at the Coventry Building Society. Mrs Stain told me in her evidence that she did not know what that account was and she had no records relating to it.
  17. Between 7th February 2008 and Mrs Cotton's death on 7th August 2008, the movements in the current account were as follows. There were a number of payments made into the current account. Some were in cash and others were by cheque. There were also withdrawals from the account. All of the payments into the account and all of the withdrawals from the account were made by Mrs Cotton. She retained the pass book for this account. The evidence was that Mrs Stain would take her mother shopping about once a week. As part of these trips, Mrs Cotton would go to the Nuneaton branch of the Coventry Building Society in the company of Mrs Stain. Mrs Cotton would then pay into, or withdraw from, the current account as she wished. All of the transactions involving the current account between 7th February 2008 and 7th August 2008 related to Mrs Cotton's affairs. At no time during this period did Mrs Stain pay any of her money into that account and she did not make any withdrawal from it. At Mrs Cotton's death on 7th August 2008, the balance in the current account was 2,842.72. On 26th November 2008, the sum of 50,043.65 was transferred into the current account from account number 944894352. On 27th November 2008, the sum of 10,500 was transferred into the current account from account number 944894352. On the same day, Mrs Stain withdrew 60,459.58 from the current account. She told me that she used this money to buy an investment property. That left a balance in the current account of 49.15. A small amount of interest was added later.
  18. Mrs Drakeford says that the result of the above is that when Mrs Cotton died on 7th August 2008, she remained the sole beneficial owner of the money in the two accounts. That money therefore formed part of Mrs Cotton's estate and is to be distributed in accordance with her will of 16th May 1997. None of the executors named in the will has taken any formal step to administer the estate. Nonetheless, I am asked to determine the question as to beneficial ownership of the money in the accounts as between the three beneficiaries between whom Mrs Cotton's estate is to be divided.
  19. Mrs Stain says that certain statements made by Mrs Cotton in the middle of June 2008 had the effect that Mrs Cotton made an immediate lifetime gift to Mrs Stain of the money in the accounts. From that time onwards, the money was held by Mrs Cotton and Mrs Stain as trustees for Mrs Stain alone. On Mrs Cotton's death, legal title to the money vested in Mrs Stain alone, by survivorship and she remained the sole beneficial owner of the money. In the alternative, Mrs Stain says that the statements made by Mrs Cotton in the middle of June 2008 vested in Mrs Stain a beneficial interest in the money in the accounts and on Mrs Cotton's death, legal and beneficial title to the money vested in Mrs Stain alone, by survivorship.
  20. It is obviously critical to make findings as to the statements allegedly made in the middle of June 2008 and to analyse the legal effect of any such statements. Before doing so, however, I need to refer to certain matters of background and make my findings in relation to those matters,
  21. The background evidence

  22. All three of the parties to this dispute gave evidence before me. I also heard evidence from Mr Russell Cotton's wife and from Mrs Stain's husband. I also received a witness statement from Mrs (Mary) Cotton's sister, Mrs MacLennan, and this was admitted into evidence under the Civil Evidence Act 1995.
  23. There was a considerable amount of evidence as to the relations within the immediate Cotton family from 1991 onwards. This evidence focussed on the position of Mrs Drakeford and the reaction to her of the other family members, including her parents. The evidence was to the effect that Mrs Drakeford was a chronic alcoholic who did not want much to do with her parents or the other family members and whenever she did attend special family occasions she normally behaved badly as a result of her drinking. Mrs Drakeford gave quite contrary evidence and stressed her relationship with her father in particular. Some of the evidence which was critical of Mrs Drakeford appeared to be slightly exaggerated, certainly as regards the period during which there was what was described as a "rift" within the family with Mrs Drakeford effectively outside the family. However, in my judgment, the evidence establishes that Mr Russell Cotton and Mrs Stain were very close to their partents and visited their parents regularly whereas Mrs Drakeford did not act as if she were particularly close to her parents and she did not visit them regularly and certainly not anything like as often as her siblings did. It was also the case that Mrs Drakeford's drinking did cause her to behave inappropriately in a way that was of concern to her mother.
  24. The more specific evidence

  25. There was specific evidence as to Mrs Drakeford's behaviour in the period from Christmas Eve 2007 until her father's death on 7th February 2008 and then in the period from his death until the middle of June 2008. Based on the evidence, I find that Mrs Drakeford did behave in a way which deepened the estrangement between herself and her siblings and caused her mother very great concern and upset.
  26. On 16th June 2008, there was a telephone call between Mrs Drakeford and her mother. Mrs Drakeford accepted in her evidence that she said things to her mother in the course of that telephone call which were very hurtful and distressing to her mother and she says that she deeply regrets having said them. It will serve no purpose for me to recite in this judgment the contents of the conversation. I find that Mrs Cotton was very distressed by that conversation. She was more distressed than the family members had ever seen her before. She told her son Russell Cotton and her daughter Mrs Stain about what had been said. They were appalled on her behalf and they contacted Mrs Drakeford to make clear the strength of their views. At this point, there was therefore a very serious falling out between Mrs Drakeford on the one hand and her mother and her siblings on the other.
  27. Mrs Drakeford told me that there was a telephone conversation between herself and her mother the following day and in that conversation she was reconciled to her mother. Her mother in effect told her off but was prepared to put the preceding day's conversation behind her. That evidence does not fit with other evidence I received. In particular, it does not fit with the evidence, which I find to be reliable, that Mrs Cotton was determined on and after 16th June 2008 that Mrs Drakeford should not inherit anything on Mrs Cotton's death. Mrs Drakeford was not invited to the interment of her father's ashes in July 2008 and she did not attend her mother's funeral. I do not accept Mrs Drakeford's evidence that there was a reconciliation at any time between herself and her mother.
  28. After their father's death, Russell Cotton and Mrs Stain were very attentive to their mother and Mrs Drakeford was not. Mrs Stain had always been close to her mother and in the period from February to August 2008 in particular, Mrs Cotton depended very heavily on Mrs Stain. Mrs Cotton described Mrs Stain as "her rock".
  29. Against the background of the distressing conversation on 16th June 2008, Mrs Cotton made various statements to Mrs Stain, which she then repeated to other members of the family. It is critically important for me to make accurate findings as to what those statements were. I accept that Mrs Cotton had finally hardened her heart against Mrs Drakeford and decided that she did not want Mrs Drakeford to benefit from Mrs Cotton's money nor from the house at 19 Berkswell Road. I also accept that, a little after the middle of June 2008, Mrs Cotton wanted Russell Cotton in particular to seek legal advice about revising her will and about the possibility that the trust of the house could be altered to deprive Mrs Drakeford of an interest under that trust. However, although some preliminary legal comment was obtained from a solicitor, Mrs Cotton did not in the end receive legal advice and did not take any steps to revise her will. At her death, her will of 16th May 1997 remained her last will and testament. I find that up to the time of her death, Mrs Cotton wished to arrange matters so that Mrs Drakeford would not take a benefit in relation to the house nor in relation to the money in the building society accounts. However, if matters stopped there, given that Mrs Cotton did not in the event make a new will, it would follow that Mrs Drakeford would be entitled to say that the money in the accounts formed part of Mrs Cotton's estate and was to be distributed in accordance with her last effective will made many years earlier, even though that result would be contrary to what Mrs Cotton really wanted in the period up to her death.
  30. Mrs Stain, supported in this by her brother, says that matters did not stop where I have described them in the last paragraph. It is said that Mrs Cotton did not just have an intention to revise her will, which intention was never given effect, but Mrs Cotton made statements which had an immediate effect in relation to the beneficial ownership of the money in the building society accounts. As I have described above, Mrs Stain's case is that the statements made had the effect of making an immediate gift to her of the money or at the lowest vesting in Mrs Stain a beneficial interest in that money so that full legal and beneficial ownership of the money passed to Mrs Stain, by survivorship, on Mrs Cotton's death.
  31. I was given detailed evidence, by Mrs Stain, Russell Cotton and by others, as to the statements made by Mrs Cotton. However, given the nature of the dispute, the element of self interest on Mrs Stain's part and the considerable bitterness shown by Russell Cotton to Mrs Drakeford and the absence of Mrs Cotton, I ought to consider all of this evidence with care. It is well established that a court should scrutinise with care allegations of oral arrangements said to have been made by a person who is now deceased: see Holder v Holder [1966] 2 All ER 116 at 125 (Cross J) and [1968] Ch 353 at 390-391 (Harman LJ). I ought to consider various accounts of the facts which have been given by the relevant witnesses in the period since August 2008 and not just the accounts of the facts given in oral evidence at the trial. I also need to consider objective facts as to Mrs Cotton's behaviour between the middle of June 2008 and her death on 7th August 2008 to assess how well those facts fit with the other evidence.
  32. On 20th November 2008, Mrs Drakeford made enquiries of a solicitor at Kundert & Co in Coventry. That firm had dealt with the wills and the settlement in 1997. The solicitor was able to tell Mrs Drakeford about the terms of her mother's will and the terms of the settlement.
  33. Mrs Drakeford then consulted another firm of solicitors, Alsters Kelley of Coventry. They wrote to Kundert & Co on the assumption that they were acting for Russell Cotton and Mrs Stain. It became clear that Kundert & Co were not acting in this way. By 17th December 2009, Russell Cotton and Mrs Stain had instructed Townshends LLP, solicitors, to act for them. They wrote to Alsters Kelley in response to a letter which I was not shown. They referred to what they described as the Cotton assets. This description included the house and the assets in Mrs Cotton's estate. As to the latter, they referred to Mrs Cotton's bank accounts containing approximately 300, to household goods and three items of jewellery. They said that there were insufficient funds in the estate to pay funeral expenses and that their clients had paid for those expenses. In fact, the funeral expenses were paid out of the current building society account. The letter made no mention of the two building society accounts.
  34. On 15th February 2010, the firm of Straw & Pearce, acting for Mrs Drakeford wrote to Townsends expressing Mrs Drakeford's surprise at the amount stated (i.e approximately 300) in Mrs Cotton's bank accounts. They asked for bank statements for a period of 12 months in respect of all accounts held by Mrs Cotton at her death. Townshends replied to this letter on 1st April 2010. They referred to the lottery winnings of 107,000 and itemised payments of 98,500 said to have been made by Ernest and Mary Cotton. These figures must have come from their clients. The suggestion was that most of the lottery winnings had been spent. Under the heading "Bank Accounts", the solicitors stated that Mrs Cotton held less than 400 in a Post Office card account at the time of her death and that their clients did not have any statements. It was said that the sum involved was withdrawn to be used towards funeral expenses so that a sum was owing by the estate to their clients. The letter did not refer in any way to the two building society accounts.
  35. By May 2010, Mrs Drakeford had obviously become aware of the possibility that her parents might have had accounts at the Coventry Building Society. She contacted that building society and received two letters from them, dated 10th and 24th May 2010. The letter of 10th May 2010 informed her of the fact of the two accounts and the balances in them at around the date of her mother's death. The letter explained that following her father's death, the accounts were put in the name of her mother "and another party". It also stated that following her mother's death the accounts were in the sole name of "the surviving member". That person was not named.
  36. On 18th May 2010, Mrs Drakeford's solicitors sent the building society's letter of 10th May 2010 to Townshends, saying that the accounts had been put in the joint names of Mrs Cotton and another "purely for signatory purposes". On 18th May 2010, Mrs Drakeford's solicitors also wrote to the building society. It appears from that letter that Mrs Drakeford had somehow become aware of account number 67240412 and the fact that it had been in the name of Mrs Cotton and Mrs Stain. The solicitors asked the building society to shed light on the circumstances in which the account was put in joint names. By their reply of 24th May 2010, the building society said they were unable to help with that request.
  37. On 8th July 2010, Townshends replied to the letter to them of 18th May 2010. They wrote:
  38. "The Accounts were in the joint names of Mrs M Cotton and Ms M Stain. The money was given as a lifetime gift to Ms Stain, shortly after Mr Cotton's death and was held in joint names on the advice of an Accountant. Your letter from the Coventry Building Society dated 10th May 2010 correctly confirms that shortly after Mr Cotton's death, the Society's records were updated in accordance with Mrs Cotton's instructions and the accounts amended into joint names. There is no evidence that the transfer was purely for signatory purposes. We are instructed that Mrs Cotton made clear to all parties concerned that she did not wish your client to benefit in anyway from her assets, because of your client's behaviour at the time of Mr Cotton's death.
    In any event, joint assets pass by survivorship to the surviving joint owner and are not part of Mrs Cotton's Estate. Therefore, there is no entitlement to anyone, other than Ms Stain, of the Coventry Building Society funds."
  39. At the trial, Ms Stain and Russell Cotton described matters in a way which was different from, or at any rate, not stated in the letter of 8th July 2010. It was accepted that the suggestion that the accounts were put in joint names on the advice of an accountant was not really accurate. If an accountant was asked anything about this, the question put to him related to whether there could be a problem of any kind for Mrs Stain being named in a joint account with her mother. The letter had wrongly given the impression that there had been some formal advice and deliberate intention behind transferring the account into joint names. The letter also gave the wrong time frame for the alleged lifetime gift. It was accepted at the trial that the alleged lifetime gift was not shortly after Mr Cotton's death (although the transfer into joint names had been then). The letter did not mention the events of June 2008 and did not refer to any statement of intentions at that later time. The letter stated that there was no evidence that the transfer into joint names was purely "for signatory purposes" but it was accepted at the trial that that was indeed the purpose. Further, although the evidence at the trial did refer to Mrs Cotton being upset about Mrs Drakeford's behaviour at the time of her father's death, the evidence at the trial was that the catalyst for what was said to be a lifetime gift to Mrs Stain was the telephone conversation of 16th June 2008.
  40. The present proceedings were brought on 20th April 2011 and a Defence was served a little later (the pleading is undated). The Defence was settled by counsel. Paragraph 4 of the Defence averred:
  41. "On or around 16th June 2008, following an abusive telephone call from the Claimant, Mrs Cotton told the Second Defendant that she wished the Second Defendant to have the funds in the joint accounts on Mrs Cotton's demise. Mrs Cotton made it clear to the Second Defendant that she was gifting the funds in the said accounts to the Second Defendant. Mrs Cotton did this because the Second Defendant was her principal carer and she wanted to reward her for her care. Further, Mrs Cotton wanted to ensure that the Claimant would not be entitled to any of the funds in the said joint accounts after her death. Mrs Cotton told the Second Defendant that the moneys in the accounts were hers (that is, the Second Defendant's) for her to do with as she wished. Mrs Cotton emphasised on several occasions that she did not want the Claimant to have any of the said moneys." [Emphasis added]
  42. Paragraph 6 of the Defence averred:
  43. "Accordingly, on the death of Mrs Cotton in August 2008, the second Defendant was solely entitled to the balance of funds in the said account by survivorship." [Emphasis added]
  44. There is, or may be, an inconsistency between the various statements made in paragraph 4 of the Defence. That paragraph refers to Mrs Cotton's wish that Mrs Stain should have the money in the accounts on Mrs Cotton's death but it goes on to refer to Mrs Cotton saying that the money in the accounts "was hers" which might suggest that the money was immediately (i.e. before Mrs Cotton's death) to belong to Mrs Stain. Paragraph 6 of the Defence refers to Mrs Stain being entitled to the money by survivorship. It is not clear whether the reference to "survivorship" related to the legal title or to the beneficial title, or to both. If the reference included the beneficial title, that would presuppose that until Mrs Cotton's death, Mrs Stain did not have full beneficial ownership of the money.
  45. Of course, it is possible that the way in which the Defence was expressed was due to counsel's failure to plead what she had been told by her clients but the reference to the money passing on death and the reference to survivorship makes me cautious about accepting the evidence which I was given at the trial, to which I will refer below, that it was clear that Mrs Cotton wished to make an immediate lifetime gift of the entire beneficial ownership of the money in the accounts.
  46. In May 2011, the Defendants were acting in person and they signed two statements which they sent to the Claimant's solicitors. In Mrs Stain's statement, she referred to the fact that the accounts had been put into joint names after her father's death. She said that her mother had said to her, even before June 2008, that the money was for Mrs Stain to enjoy and that her mother did not want anything. Her mother did not want Mrs Drakeford to have any of the money. She said that on 17th June 2008, following the telephone call between her mother and Mrs Drakeford, her mother "gave the money in the bank account to me". The statement explained that her mother intended that the money would from that point belong to Mrs Stain. Her mother also did not want Mrs Drakeford to benefit from the house, which was the subject of the settlement. In August 2008, Mrs Stain was about to go on a holiday to Spain and she and her mother agreed that when Mrs Stain returned from holiday on 14th August 2008, they would take steps to change Mrs Cotton's will. Mrs Stain then said that the money in the bank account was "sorted" as it then belonged to her. She added: "unfortunately my mother died before anything further could be done". Russell Cotton's statement was in much the same terms as that of Mrs Stain. The statements were sent under cover of a letter which referred to a gift of the money on 16th June 2008 and then said:
  47. "The money from that date became Mrs Stain's to do with as she wished, and Mrs Stain claims survivorship rights to the account. Mr Cotton was fully aware that the money was gifted to Mrs Stain, and makes no claim to it."

    That last statement might be said to contain an inconsistency between an outright gift as at 16th June 2008 and a claim to survivorship on the death of Mrs Cotton (unless the reference to survivorship was a reference to the legal title only). Under the first way of describing the matter, Mrs Stain is the sole beneficial owner from 16th June 2008 whereas under the second way of describing the matter, Mrs Stain has a beneficial interest before Mrs Cotton's death and becomes the sole beneficial owner on Mrs Cotton's death.

  48. Mrs Stain's witness statement for the trial was in essentially the same terms as her statement of May 2011. When cross-examined, she said that the accounts were put in joint names in February 2008 for her to enable to help her mother take care of her finances. At that point, the money in the accounts belonged to her mother and not to her. She said that on 16th June 2008, her mother tried to push the pass book into her hand saying: "Take it. Take it." The passbook related to the current account. She said that the money was there "for us both". The reason for making a gift of the money to Mrs Stain was so that Mrs Drakeford would not have it. Mrs Stain did not connect the gift with the terms of the will. She said that she connected it with the terms of the trust. Her mother said that she wanted to change her will when Mrs Stain returned from holiday. This suggestion was made a couple of weeks after 16th June 2008. Her mother asked Russell Cotton to make enquiries of a solicitor about changing her will and changing the trust of the house. Mrs Stain said that paragraph 4 of the Defence which referred to Mrs Stain having the money "on Mrs Cotton's demise" was wrong. When re-examined, Mrs Stain said that her mother wanted to change her will so that Mrs Drakeford "would not benefit from any part of it".
  49. Russell Cotton's witness statement for the trial is not entirely the same as his statement of May 2001. In his statement of May 2011, when describing the position between February and June 2008, he had said that his mother told him that the money "was going to Michelle" whereas in his witness statement he said that he was told that the money "belonged to Michelle". When describing the events of 16th and 17th June 2008, he said that his mother had told him that the money now belonged to Michelle and that it was a gift to her. He then added that his mother was so upset that she wished to change her will and he recounted how it was left that his mother would change her will when Mrs Stain returned from holiday. He also said that his mother said that the money in the bank account was "sorted" and that it belonged to Mrs Stain. When cross-examined, he agreed that the accounts were put into joint names in February 2008 "for convenience". He said that in June 2008, his mother told him to persuade Mrs Stain to take the money out of the accounts. He told his mother not to worry "it is sorted". He said he rang the solicitor at Kundert & Co in early July 2008 and was told that the trust would be difficult to change but that the will would be easy to change. He was asked why his mother was prepared to wait until Mrs Stain returned from holiday to change her will. He explained that there did not seem to be any rush, even though his mother was 75. He described her as being in reasonable health even though there was evidence that she had been in hospital after February 2008 and had difficulty walking. When re-examined he said that his mother wanted to change her will so that Mrs Drakeford would not benefit. He was asked if he considered it was necessary to change the will and he said: "No". As to his mother's living expenses, he referred to his mother's pension and that he and Mrs Stain would ensure that his mother did not want for anything.
  50. Russell Cotton's wife also gave evidence. In her witness statement, she said that Mrs Cotton told her that she had given all of the money in the joint accounts to Mrs Stain in part in recognition of what Mrs Stain had done for her but mainly because she did not want Mrs Drakeford to have anything that was Mrs Cotton's or any of her money. When cross-examined, she said that Mrs Cotton had told her that she did not want Mrs Drakeford to have the money in the joint account and that Mrs Stain was to have the money and to do with it as she wished. She then referred to Mrs Cotton wanting to change her will and said that this followed from her not wanting Mrs Drakeford to have the money.
  51. Mrs Stain's husband also gave evidence. In his witness statement he said that in June 2008, Mrs Cotton told him that she wanted nothing more to do with Mrs Drakeford and that she did not want Mrs Drakeford to benefit from anything she had. He did not refer in his witness statement to the money being given to Mrs Stain. When cross-examined, he added the information that Mrs Cotton had told him that she had given all the money to Mrs Stain and that she did not want Mrs Drakeford to have anything. He said that the gift of the money was in June 2008 and Mrs Cotton was not referring to a future wish.
  52. In the hearsay statement made by Mrs (Mary) Cotton's sister, Mrs MacLennan, it was stated that Mrs Cotton had told her sister that she had told Mrs Stain that whatever money Mrs Cotton had was now Mrs Stain's. Mrs Cotton had told Mrs Stain to take the money and that it was a gift to her.
  53. I heard the evidence of Mrs Stain and Russell Cotton on the first day of the trial. At the beginning of the second day of the trial, counsel for the Defendant applied for permission to amend paragraph 4 of the Defence (which I have quoted above) to remove the words "on Mrs Cotton's demise". The application was not opposed and I granted permission to amend as asked.
  54. The four possible results

  55. The accounts in question created the relationship of creditor (the account holders) and debtor (the building society). In legal terms, it is not accurate to say that the accounts holders owned "the money in the accounts". It is legally more accurate to say that the account holders had the benefit of a chose in action, namely the benefit of the debt owed by the building society. However, in ordinary speech it is common to refer to an account holder owning the money in the account. As I will have to make findings as to the expressions used by Mrs Cotton in this case, and as to the effect of those expressions, it will be more appropriate to describe matters in accordance with the usage in ordinary speech rather than by referring to the ownership of a chose in action.
  56. By the end of the trial, it was agreed that in the period from 7th February 2008 to the middle of June 2008 (if not thereafter) the money in the accounts was beneficially owned by Mrs Cotton alone. It was agreed that the fact that the accounts were in joint names from 14th February 2008 did not result in both joint account holders having a beneficial interest in the money in the accounts. It is clearly established that it is possible for a second account holder to be added to an account so as to make it more convenient for the account to be administered for the benefit of the other account holder, who remains the sole beneficial owner of the money: see Marshal v Crutwell (1875) LR 20 Eq 328. Although the skeleton arguments provided by counsel had addressed questions as to the presumption of a resulting trust or the presumption of advancement by a mother in favour of a daughter, in view of the common ground which emerged as to the effect of the accounts being placed in joint names on 14th February 2008 it is not necessary to consider those matters further. The dispute therefore related to the beneficial ownership of the money from the middle of June 2008 onwards.
  57. In the course of counsel's closing submissions, four possible results of the above events were identified and addressed. The first was that the statements made in June 2008 resulted in Mrs Stain becoming at that point the sole beneficial owner of the money in the accounts. This was the result contended for by the Defendants. The second possible result identified was that the statements resulted in Mrs Cotton and Mrs Stain becoming at that point joint beneficial owners of the money in the accounts. Neither the Defendants nor the Claimant contended for this outcome. The third possible result was that that from that point, Mrs Cotton retained a beneficial interest in the money in the accounts but Mrs Stain also acquired at that point a beneficial interest in the money and so that when Mrs Cotton later died, Mrs Stain became the sole beneficial owner of the money. The Defendants contended for this third possible result in the alternative to asserting the first outcome. The fourth possible result was that the statements in June 2008 expressed Mrs Cotton's wish that Mrs Drakeford should not inherit the money on Mrs Cotton's death, that Mrs Cotton wished to revise her earlier will and in her intended new will would provide for Mrs Stain to inherit all of the money in the accounts. This was the result contended for by the Claimant. It was accepted that if I found for this fourth possible result, then in the absence of a revised will, the money formed part of the estate of Mrs Cotton and her estate was to be distributed in accordance with her will of 16th May 1997. Neither side contended that the statements made in and after the middle of June 2008 created a donatio mortis causa.
  58. The first possible result

  59. As to the first possible result, namely, that in the middle of June 2008, Mrs Stain became the sole beneficial owner of the money in the accounts, I first need to make my findings as to what precisely was said by Mrs Cotton at around that time to Mrs Stain and to others. The oral evidence given by the Defendants and by others on their behalf, if I accepted it, does support the Defendants' case that Mrs Cotton used words which were apt to express an intended immediate gift of beneficial ownership of the money in the accounts. As earlier explained, I have to take that oral evidence together with earlier statements made by or on behalf of the Defendants and also with the events which took place in the period from the middle of June 2008 until Mrs Cotton's death on 7th August 2008, in so far as those events may throw light on what Mrs Cotton must have said at that time.
  60. In my judgment, the Defendants have not been completely consistent in the way they have described from time to time the statements made by Mrs Cotton in and after June 2008 so that I feel that I cannot take at face value all of the evidence given by them and on their behalf. Further, the first possible result which is now contended for by the Defendants does not fit with matters which appear to be established. I refer to the way in which the accounts were operated after the middle of June 2008. In relation to the current account, Mrs Cotton continued to make payments into that account. Further, she continued to make withdrawals from that account for her own benefit. Mrs Stain knew of both those matters as she accompanied her mother to the building society branch for her to operate the current account. If the first possible result were the correct one, then this behaviour involved Mrs Cotton paying sums into an account which she did not own and withdrawing money which belonged to her daughter and not to her. As regards the deposit account, neither Mrs Cotton nor Mrs Stain took any positive action in relation to that account but the net monthly interest earned on the deposit account was transferred into the current account. That would suggest that the two accounts should be treated in the same way. If the money in the current account was owned beneficially by Mrs Cotton, then it would be strange if the money in the deposit account was owned by Mrs Stain alone, yet the interest on Mrs Stain's money was being paid to Mrs Cotton. Further, although Mrs Cotton and Mrs Stain went together to the building society branch office on several occasions between the middle of June 2008 and 7th August 2008, they did not at any time try to transfer the accounts into the sole name of Mrs Stain.
  61. What I consider has happened here is as follows. Mrs Stain and Russell Cotton are quite clear that it was their mother's settled last wish that Mrs Drakeford should not inherit any part of Mrs Cotton's estate. A sure way of avoiding that result would have been for Mrs Cotton to make an immediate lifetime gift of the money in the accounts to Mrs Stain. What Mrs Stain and Russell Cotton have done in their own minds is to firm up Mrs Cotton's statements of intention in 2008 so that they have become a statement of an intention to make an immediate lifetime gift even though it seems to me to be unlikely that Mrs Cotton intended to make an immediate lifetime gift as distinct from having some other intention, in accordance with either the third or the fourth possible results referred to above. I do not hold that Mrs Stain and Russell Cotton have deliberately set out to mislead the court. Instead, the bitterness which they feel towards Mrs Drakeford and their conviction that their mother did not want Mrs Drakeford to inherit any part of her estate has led them to persuade themselves that their mother's statements went further than they actually did go.
  62. Accordingly, I reject the Defendants' contention that Mrs Cotton made statements in or after the middle of June 2008 to the effect that she was making an immediate gift of the money in the accounts. I therefore reject the first outcome contended for by the Defendants.
  63. Before leaving the first possible result, I need to refer to another way in which counsel for the Defendants put the case in support of the first possibility. Counsel referred to a passage in Lewin on Trusts, 18th ed., at para. 9-86, where it is said that even where a joint account is opened in circumstances where the second account holder is initially not to have a beneficial interest in the money in the account but is added for reasons of convenience only, nonetheless where the intentions of the account holders later change, and where the second account holder is later involved for reasons which are not for convenience only, then it can come about that the second account holder can be held to have a beneficial interest in the account. Lewin does not cite any authority for this proposition in para. 9-86 itself but cross refers to para. 1-14 where a number of authorities are cited in footnote 97. It seems to me that the passage in Lewin is based on what was said by Megarry J in In re Figgis [1969] 1 Ch 123 at 145F-146A. What was described in that passage was a case where a joint account had been operated for a lengthy period. It was held that even where the account had been put into joint names for reasons of convenience and so that the second account holder was not intended to have a beneficial interest in money paid into the account in the early stages, where the reasons of convenience did not apply at a much later time and where the original money in the account had been spent, it would be open to a court to find that money paid into the account at the later time, when the reasons of convenience no longer applied, could be owned beneficially by both account holders. I do not consider that those comments have any application on the facts of this case. The period from 7th February 2008 to 7th August 2008 was a comparatively short period. Mrs Stain was a joint account holder between 7th February 2008 and the middle of June 2008 for reasons of convenience only. All of the money in the deposit account at Mrs Cotton's death had been paid in before the middle of June 2008, and indeed before 7th February 2008. There were some changes in the amount in the current account between the middle of July 2008 and 7th August 2008. The balance in the current account in the middle of June 2008 was 3137.96 and the balance on 7th August 2008 was 2842.72. Only comparatively modest sums were paid into the joint account in the period from the middle of June 2008 to 7th August 2008 and in that period the withdrawals exceeded the deposits. In any event, if I am right in holding that Mrs Cotton's statements in the middle of June 2008 did not amount to an immediate gift of the money in the accounts to Mrs Stain, then I do not think that they had the effect of creating an immediate gift to Mrs Stain of the modest sums paid into the current account between the middle of June 2008 and 7th August 2008.
  64. In relation to the first possible result, I raised with counsel in the course of argument whether the position would be affected by section 53(1)(c) of the Law of Property Act 1925. In view of the fact that I have rejected the first possible result on the facts of the case, I will not consider that sub-section at this point in the judgment. I will return to it when I have considered the third possible result below.
  65. The second possible result

  66. The second possible result identified above was that the money in the accounts was beneficially owned jointly by Mrs Cotton and Mrs Stain. Neither side to the present dispute contended for this possibility. I only mention it because it may be that, on a true analysis, the third possible result, at least in some circumstances, involves a modified form of joint beneficial ownership which is subject to certain rights and obligations which would not normally apply in a straightforward case of joint beneficial ownership.
  67. The third possible result

  68. The third possible result is that, from the middle of June 2008, both Mrs Cotton and Mrs Stain had a beneficial interest of some sort (not necessarily a joint or an identical beneficial interest) in the money in the accounts and that on the death of Mrs Cotton her beneficial interest ended (and did not fall into her estate) and so that Mrs Stain's beneficial interest was enlarged (by survivorship or something akin to survivorship) into sole beneficial ownership.
  69. This third possible result involves a position which it is not at all easy to analyse or describe. Nonetheless it is established by a number of authorities that it is possible to have a joint account with the following attributes. The legal title to the account is in joint names. One of the account holders is entitled to draw on the account and the money so drawn is his sole property. The other account holder is not entitled to draw on the account. On the death of one account holder, the money in the account belongs to the other by survivorship. This is so even where the one who dies is the one who was earlier allowed to withdraw from the account and the one who survives was not earlier entitled to withdraw from the account. From the time that the relevant arrangement is made, there is a beneficial interest vested in the account holder who is not entitled to draw on the account but who may in due course take by survivorship. That beneficial interest vests when the relevant arrangement is made and it is not a case of a testamentary disposition on the death of the other account holder.
  70. A joint account held on these terms with these consequences was considered in a number of cases of which the more notable are Re Reid (1921) 50 Ont L R 595, Russell v Scott [1936] 55 CLR 440, Young v Sealey [1949] Ch 278, In re Figgis [1969] 1 Ch 123, Lynch v Burke (1995) 5 Irish Tax Reports 271 (overruling Owens v Greene [1932] IR 225) and Aroso v Coutts & Co [2001] WTLR 797.
  71. The decision of the High Court of Australia in Russell v Scott [1936] 55 CLR 440 deserves close attention in this regard. An elderly lady and her nephew opened a joint bank account. The nephew assisted his aunt in matters of business. The aunt paid into the account; the nephew did not. The account was used to meet the financial needs of the aunt. When the account was opened, the aunt told the nephew and others that any balance remaining in the account at her death would belong to the nephew and it was found as a fact that the aunt intended her nephew to take beneficially whatever balance stood to the credit of her account at her death. Upon the aunt's death, the nephew claimed the balance of the account. It was held that the presumption of a resulting trust in favour of the aunt and her estate was rebutted. The nephew's legal right of survivorship to the balance of the account prevailed and was not the subject of any resulting trust. The trial judge held that the balance in the joint account did not pass to the nephew because the benefit which the aunt intended him to have was testamentary in its nature and this testamentary gift was not made in accordance with the legislation as to wills in New South Wales. This decision was reversed by the High Court, which comprised Starke, Dixon, Evatt and McTiernan JJ.
  72. Starke J held that the gift to the nephew was not a testamentary gift. The opening of the account in joint names gave the nephew an immediate joint legal title and he acquired sole legal title on the aunt's death by survivorship. The question therefore related to the equitable title. The presumption of a resulting trust in favour of the aunt was rebutted on the evidence. Although the aunt was to enjoy the money in the account in her lifetime, her intention that her nephew should take beneficially on her death rebutted the presumption of a resulting trust in favour of the aunt or her estate.
  73. Dixon and Evatt JJ delivered a joint judgment. They pointed out that the position at common law was clear so that the relevant question related to the position in equity. At page 451 they said:
  74. "The right at law to the balance standing at the credit of the account on the death of the aunt was thus vested in the nephew. The claim that it forms part of her estate must depend upon equity. It must depend upon the existence of an equitable obligation making him a trustee for the estate. What makes him a trustee of the legal right which survives to him? It is true a presumption that he is a trustee is raised by the fact of his aunt's supplying the money that gave the legal right a value. As the relationship between them was not such as to raise a presumption of advancement, prima facie there is a resulting trust. But that is a mere question of onus of proof. The presumption of resulting trust does no more than call for proof of an intention to confer beneficial ownership; and in the present case satisfactory proof is forthcoming that one purpose of the transaction was to confer upon the nephew the beneficial ownership of the sum standing at the credit of the account when the aunt died. As a legal right exists in him to this sum of money, what equity is there defeating her intention that he should enjoy the legal right beneficially? Both upon principle and upon English authority we answer, none. English authority is confined, so far as we can discover, to cases of husband and wife. But there is much authority to the effect that where a joint bank account is opened by husband and wife with the intention that the survivor shall take beneficially the balance at credit on the death of one of them that intention prevails, and, on the death of the husband, the wife takes the balance beneficially, although the deceased husband supplied all the money paid in and during his life the account was used exclusively for his own purposes."
  75. Dixon and Evatt JJ then considered a number of authorities and continued at pages 453-454:
  76. "The fact that these cases arose between husband and wife affects only the burden of proof. In a case where there is no presumption of advancement, satisfactory affirmative proof of an intention to confer a beneficial interest supplies the place of the presumption. Once it appears, as it does in the present case, that a definite intention existed that the balance at the credit of the bank account should belong to the survivor, these cases become, in our opinion, indistinguishable.
    In principle there is no reason why, when at law a chose in action accrues to the survivor of two persons in whom it was jointly vested, equity should fix the survivor with a resulting trust in favour of the personal representatives of the deceased who furnished the value it possesses, if the joint chose in action was so vested by the deceased with the purpose of imparting beneficial ownership to the survivor on his death. The reason which is assigned for such a resulting trust rests at bottom upon the notion that the deceased, by intending to reserve the right in her lifetime of applying all or any of the money in the account for her own purposes and by continuing in fact to enjoy the use of that money, retained the full beneficial ownership of the property which in law vested in herself and her nephew jointly in consequence of the account standing in the names of both of them."
  77. Finally, at pages 454-455, Dixon and Evatt JJ considered, and rejected, the argument that the gift to the nephew was a testamentary gift, in these terms:
  78. "For it is said that the deceased's intention that her nephew on surviving her should take the amount of the bank account is a testamentary wish to which effect could be given only by a duly executed will. This must mean that, while retaining full beneficial property in a corpus, she intended that on her death some other person should succeed to her property in that corpus or to some interest therein to which he was not before entitled either absolutely or contingently, and to which the law gave him no title to succeed. It is only in this sense that an intention to benefit can be said to be testamentary. Law and equity supply many means by which the enjoyment of property may be made to pass on death. Succession post mortem is not the same as testamentary succession. But what can be accomplished only by a will is the voluntary transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased. This was not true of the chose in action created by opening and maintaining the joint bank account. At law, of course, it was joint property which would accrue to the survivor. In equity, the deceased was entitled in her lifetime so to deal with the contractual rights conferred by the chose in action as to destroy all its value, namely, by withdrawing all the money at credit. But the elastic or flexible conceptions of equitable proprietary rights or interests do not require that, because this is so, the joint owner of the chose in action should in respect of the legal right vested in him be treated as a trustee to the entire extent of every possible kind of beneficial interest or enjoyment. Doubtless a trustee he was during her life time, but the resulting trust upon which he held did not extend further than the donor intended; it did not exhaust the entire legal interest in every contingency. In the contingency of his surviving the donor and of the account then containing money, his legal interest was allowed to take effect unfettered by a trust. In respect of his jus accrescendi his conscience could not be bound. For the resulting trust would be inconsistent with the true intention of that person upon whose presumed purpose it must depend."
  79. McTiernan J held that the nephew was a trustee during the life time of his aunt. His legal interest was subject to a trust in her favour but that trust did not exhaust the interest taken by him as joint legal owner of the chose in action. A resulting trust did not arise because of the intention of the aunt that the nephew should be entitled to the account on her death.
  80. Young v Sealey [1949] Ch 278 concerned facts similar to those of Russell v Scott, although that case was not cited. The principal issue was whether the gift by one joint account holder to the other in such circumstances was a testamentary gift. Romer J was inclined to the view that the gift was a testamentary gift which failed because it did not comply with the Wills Act 1837 even though such a conclusion would have defeated the donor's intentions. Nonetheless, since a number of earlier English authorities had proceeded on the basis that such a gift could be valid and since the Supreme Court of Ontario in Re Reid had upheld such a gift as a valid lifetime gift, he held that gift in the case before him should be upheld unless and until an appellate court in this jurisdiction decided otherwise.
  81. The authorities were reviewed by Megarry J in In re Figgis [1969] 1 Ch 123. The principal issue in that case was whether the joint account was put in joint names for convenience so that there was a resulting trust for the account holder whose money had been paid into the account. It was held that the account had not been opened for convenience. There was a further point as to the nature of the gift made by the person paying into the joint account. This arose in relation to a particular provision in that person's will which referred to "gifts made by me in my lifetime" and it was held that this phrase extended to gifts in the ordinary sense of the word and not to "amorphous rights in a joint account". At page 149, Megarry J was somewhat tentative as to the correct analysis of the situation.
  82. The authorities were again considered by Lawrence Collins J in Aroso v Coutts & Co [2001] WTLR 797. It was held on the facts that a joint account holder was entitled to take the monies in the joint account by survivorship and the presumption of a resulting trust was rebutted. If the intention of the account holder, who paid the monies into the account, had been that the other account holder should only take beneficially on the death of the first account holder, then the learned judge would have followed Russell v Scott and Young v Sealy in that event: see at page 813E-H.
  83. The third possible result avoids the major difficulty which I perceived in the way of the Defendants succeeding on the first possibility. The way in which the current account was operated from the middle of June 2008 to 7th August 2008 was inconsistent with the first outcome but is not inconsistent with the third outcome.
  84. Although it is possible, in equity, to create the kind of arrangement discussed in the cases referred to above, it does not necessarily follow that Mrs Cotton did in fact create this arrangement. An arrangement of this sort is a somewhat complex one. Although such an arrangement has been considered in an appreciable number of cases and although other courts have made findings that such an arrangement was indeed the type of arrangement intended by the parties in those cases, I still have to consider whether the language used by Mrs Cotton to describe her intentions can fairly be understood as describing such an arrangement or as describing some other result. It can be strongly argued, for example, that the substance of what Mrs Cotton wanted was to revise her will so that Mrs Drakeford would not inherit anything and so that all that Mrs Cotton was saying was that she wished to revise her will and, in the event, she did not do so before her death.
  85. In the end, I conclude that a fair reading of the evidence as to Mrs Cotton's statements, having removed from that evidence the degree of firming up of the evidence which I have already rejected, is to the effect that Mrs Cotton intended, and said that she intended, that on her death the money in the accounts would be owned beneficially as well as legally by Mrs Stain. In effect, the way in which the matter was pleaded in paragraph 4 of the Defence, before its amendment, was indeed what Mrs Cotton was describing.
  86. I am assisted in reaching that conclusion by considering the evidence as to the order in which Mrs Cotton referred to the money going to Mrs Stain and in which she referred to an intended revision to her will. Both Mrs Stain's and Russell Cotton's evidence was that the reference to Mrs Cotton revising her will came later than her statements that she was giving the money to Mrs Stain.
  87. Accordingly, I find that Mrs Cotton did form a settled intention in the middle of June 2008 and she expressed that intention by stating to Mrs Stain and to others that the money in the accounts would go to Mrs Stain and in that way would not be inherited by Mrs Drakeford. That statement of intention was not dependent upon Mrs Cotton revising her will. The idea of revising her will came later. I can see that a revision of her will so that Mrs Drakeford did not inherit anything would be very clear and determinative but that does not, in my judgment, mean that the earlier statements to Mrs Stain and others had no effect in the absence of a revision to her will.
  88. Based on those findings of fact, and subject to any question as to formalities which I will consider below, in my judgment, the case is covered by the principles identified in Russell v Scott. The legal title to the money in the joint accounts passed to Mrs Stain by survivorship and did not form part of the estate of Mrs Cotton. When Mrs Stain became the sole legal owner in this way, she did not hold the money on a resulting trust for the estate. The evidence which I have accepted as to Mrs Cotton's intentions shows that it was intended that Mrs Stain should take beneficially at that point. This did not involve a testamentary disposition but was the following through of the lifetime gift made by Mrs Cotton to Mrs Stain in the middle of June 2008.
  89. The earlier authorities such as Russell v Scott involved a consideration as to whether, and if so what, beneficial interests were created in the money in a joint account when the joint account was opened. As it is possible to declare orally a trust of personalty, those cases did not consider any question of any formalities which needed to be observed. The present case is different. Here, when the accounts were put into joint names, the joint account holders held the money in the accounts on trust for Mrs Cotton alone. In the middle of June 2008, the relevant intentions changed and it is was then intended that the money in the accounts would be held on trusts under which both Mrs Cotton and Mrs Stain would enjoy beneficial interests. In the course of the hearing I inquired of counsel whether the intended new beneficial interests involved a disposition of a subsisting equitable interest so that such a disposition had to be in writing in accordance with section 53(1)(c) of the Law of Property Act 1925.
  90. Counsel for the Defendants submitted that the Claimant had not pleaded section 53(1)(c) and therefore could not seek to rely upon it. Lewin on Trusts, 18th ed., at para. 3-10 states that reliance on section 53(1)(b) must be specifically pleaded but, so far as I can see, Lewin does not expressly deal with the position in relation to section 53(1)(c). In the event, I have considered the possible application of section 53(1)(c) and have decided that it does not invalidate the intended change in the beneficial interests effected in the middle of June 2008. Accordingly, I need not further consider this pleading point. The parties did not make detailed submissions on the possible operation of section 53(1)(c) and what follows is therefore my own understanding of how that sub-section operates.
  91. Section 53(1)(c) of the Law of Property Act 1925 provides:
  92. "(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will."
  93. Section 205 of the 1925 defines "disposition" so as to include a "conveyance" and "conveyance" is defined to include a release and every assurance of an interest in property.
  94. If property is held by A and B on trust for C and C wishes to transfer his equitable interest to D, then the transfer must be in writing in accordance with section 53(1)(c). If C wishes to direct his trustees to hold the property on trust for D, then such a direction is a "disposition" within the subsection and must comply with it: see Grey v IRC [1960] AC 1.
  95. The position in the present case is not like the example in the last paragraph. Here, before the middle of June 2008, the property was held by A and B on trust for A. (A was Mrs Cotton and B was Mrs Stain.) From the middle of June 2008, the intentions of A and B were that A and B would hold the property on trust for A and for B, with A and B having different beneficial interests in the property. The intended result could be achieved in a number of different ways and section 53(1)(c) would apply to some, but not all, of those ways. If A wished to transfer her entire beneficial interest to A and B, then such a transfer would fall within the sub-section. If A wished to direct the trustees to hold the property on trust for A and B, then that too would fall within the sub-section. However, if A wished to declare a sub-trust of her subsisting beneficial interest in favour of A and B, then that would not fall within the sub-section. If A and B wished to declare new trusts of the property in favour of A and B, then that too would not fall within the sub-section.
  96. The statements made by Mrs Cotton and accepted by Mrs Stain were of course expressed in informal language. They did not analyse their intentions in accordance with any one of the possible ways identified in the preceding paragraph. In my judgment, if it is possible to achieve the intended result as regards the beneficial interests by adopting one of the routes which I have identified, I do not see that I have to analyse the intentions of Mrs Cotton and Mrs Stain in one of the other ways which would not achieve the intended result, because of a failure to comply with section 53(1)(c). In my judgment, it is reasonably straightforward to hold in this case that Mrs Cotton and Mrs Stain, as trustees, agreed to hold the money in the accounts on trust for themselves. That was an informal declaration of trust which did not have to comply with section 53(1)(c). That declaration of trust meant that Mrs Cotton was not able to set up an outstanding beneficial interest in herself as that would be incompatible with the intended new beneficial interests.
  97. Accordingly, I find that the result of the statements made by Mrs Cotton in and after the middle of June 2008 was that the money in the accounts was held on trust for Mrs Cotton and Mrs Stain. On Mrs Cotton's death, the legal title to the money vested in Mrs Stain by survivorship. Mrs Stain was not subject to any outstanding equitable interest in favour of Mrs Cotton's estate.
  98. The fourth possible result

  99. My finding that the result of the statements made by Mrs Cotton in the middle of June 2008 is in accordance with the third possible result means that the matter is not dealt with, by default, in accordance with the fourth possibility.
  100. The trust in relation to the house

  101. The next matter relates to the operation of the trust of the house in the period after the death of Mrs Cotton. Russell Cotton and Mrs Stain, as two of the three trustees in whom the property was vested, dealt with the house and Mrs Drakeford did not deal with it. Russell Cotton and Mrs Stain appointed letting agents who also managed the property. The property was let consecutively under two separate tenancies. There is no dispute as to the amount of the income received from these lettings. There is no dispute that Russell Cotton and Mrs Stain, as trustees, are liable to account for the income from the property less any proper expenses which may be deducted. Section 31(1) of the Trustee Act 2000 allows them to deduct expenses properly incurred by them when acting on behalf of the trust.
  102. The dispute relates to what may be deducted as expenses properly incurred. Mrs Drakeford has challenged items which had been put forward as deductions in relation to time spent gardening and time spent on the maintenance of the property. It is now accepted that there was no expenditure which is deductible in relation to those items.
  103. The list of items of expenditure includes a large number of items where Russell Cotton and Mrs Stain say that the expenditure was by cash payment. The items in question include matters such as cleaning of the property and carpet cleaning. There is a substantial sum for a replacement boiler. It seems to be accepted that the Defendants procured these various works. If that is not accepted by Mrs Drakeford, then I find that the items of work described in the Defendants' schedule of expenditure were indeed carried out. It would have been better if the Defendants had obtained receipts for the cash expenditure but I am prepared to accept their evidence that they did indeed expend the sums identified in their schedule. I therefore find that these sums were expenses properly incurred by the Defendants.
  104. That leaves the question of deductions for mileage allowance. The list of expenditure contains a large number of items for mileage allowance over the period from September 2008 to December 2010. I understand that the claim is based upon an assertion that Russell Cotton made drive-by visits to the property. He did not give any evidence as to these visits nor as to the calculation of the allowances. He was not asked any questions in cross-examination about this topic. Mrs Stain was asked about it in cross-examination. She said that she did not make any drive-by visits. She added that Russell Cotton told her when he had been past the property and that she marked it on a calendar. I am very doubtful about that piece of evidence. The mileage allowance seems to be claimed for every week without any break. The figures which are put forward appear to be notional sums. One sum which regularly appears is 14.40 per week. The total claimed for mileage allowances is 1,865.60. I was told by counsel in the course of closing submissions that the figure of 14.40 was 32 miles multiplied by 0.45 per mile. I was not given evidence that the distance from Russell Cotton's home to the property was in fact 16 miles. I am not persuaded that he went to the property every week. I have no reason to think that he made a specific journey starting from his home and driving to the property and then driving home again. It may be that any visit to the property which did take place would have been at a time when he may have found himself in that area for other reasons. Further, I am not persuaded that he is entitled to be indemnified for anything other than the cost of the petrol consumed on such a visit. In the absence of any evidence on the point, I assume that all the costs involved in owning and running his car would have been incurred in any event. I am also not persuaded that it was necessary for one of the Defendants to go to the property every week, if that is what did happen. The Defendants had retained managing agents who charged for managing the property. It was said that the agents did not do a good job and that it was necessary for Russell Cotton to check up on things. Having made all those points, I think that I am able to make a very modest allowance for the petrol that may have been used on a small number of visits to the property that probably did take place. I will allow 100 in this respect.
  105. The jewellery

  106. The final issue between the parties relates to the jewellery owned by Mrs Cotton at her death. The Defendants have identified what they say was the jewellery which was owned by Mrs Cotton immediately before her death. Mrs Drakeford says that there ought to have been more jewellery and she has identified a number of items which she says are missing from the Defendants' list. I accept the Defendants' evidence that their list of the relevant jewellery is complete.
  107. The next question is as to what is to happen to the jewellery. Mrs Cotton's will made no specific provision in this respect. The best course of action is for the parties to agree what is to happen. For example, they could divide the items between themselves or sell any they did not wish to retain. Appropriate allowances could be made based on agreed values. If they are unable to agree in this way, then counsel for the Defendants did not quarrel with the suggestion that the jewellery would have to be sold so as to realise its true current market value. I will permit each one of the parties to bid for any item of jewellery so that such item will be sold to the highest bidder.
  108. The relief sought

  109. I have now decided the issues as to the money in the accounts, the net income from the trust property and the jewellery. The relief sought in the Particulars of Claim was for appropriate declaratory relief and for accounts and inquiries. I am prepared to make declarations to give effect to this judgment. There does not appear to be any need to direct an account or an inquiry. I have determined the issue as to the net income from the trust property. I have held that all of the relevant jewellery has now been identified. In the absence of agreement the jewellery will be sold and that will establish its value. I am not asked to give any directions as to how the estate is to be administered. Counsel should agree a minute of order to give effect to this judgment.


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