Jeffery v Jeffery [2013] EWHC 1942 (Ch)

Analysis

This was a retrial. The original trial in November 2012 was conducted in the absence of the defendant Andrew Jeffrey.

Daphne Jeffrey died in February 2010, aged 76, having divorced her husband David ten days before her death. She had two children – Nicholas and Andrew. She made a will in 2007 appointing Nicholas and Christopher Eyre (a friend left nothing in the will) as her executors and leaving her estate between Nicholas and Andrew’s three children. Prior to that she had made wills in 1982, 2002 and 2004. In 2008 she gifted two properties to Nicholas.

David and Daphne set up an insurance broking business in the 1960s and in 2000 Andrew took over the business. In July 2001 her GP referred to a therapist to treat stress and anxiety. She took antidepressants from 1985 until her death.

Daphne was a trustee alongside her brother of a trust her father had created on his death. She was also a trustee alongside Nicholas and Andrew of an inter vivos trust her mother created in 1995. It was alleged that her brother had misappropriated trust monies from both trusts and there was litigation which was compromised with her brother paying £140,000.

The first time Daphne excluded Andrew was in the 2004 will. In 2001 Andrew had claimed that his mother had stolen money from the business.

In 2006 Andrew was alleged to have accepted money for insurance that he had not then placed and he was charged with fraud. He was subsequently acquitted but ultimately banned from working in the insurance industry.

In 2007 Daphne made a will with a solicitor, Mr Cox. She had previously instructed him. Nicholas was present at the meeting. Mr Cox did not test her mental capacity. Mr Cox then went through the draft will with Daphne over the telephone. Nicholas provided the letter of wishes to Mr Cox.

Mrs Owens the barrister who acted for Daphne in relation to the divorce (and who had previously worked for seven years with elderly people) was very clear that her client had mental capacity and last saw her ten days before her death.

Andrew claimed:

1. (i) his mother misappropriated trust monies;
2. (ii) his mother lacked capacity to make any of the wills due to the medication she was taking;
3. (iii) his mother did not know or approve the contents of the 2007 will;
4. (iv) the 2007 will was affected by undue influence by Nicholas – who forced her to make the will so he would not reveal evidence of her failings as a trustee of her parents’ trusts;
5. (v) the 2007 will was affected by the fraud of his mother in relation to other matters; and
6. (vi) therefore she died intestate.

Andrew also alleged that the executors were unfit to act and should be removed.

Held (striking out the claim):

1. (1) Right up to her death Daphne knew precisely what she was doing in relation to money and indeed she was a manipulative person. Nicholas held no sway over his mother – she never sought or accepted advice from him.
2. (2) Mrs Owens’ evidence showed she retained mental capacity long after the 2007 will was made. She took benzodiazepines from the mid-1980 and she was probably addicted to them, but there is no evidence that they had a significant adverse effect on her mental state or her behaviour.
3. (3) Any criticism of Mr Cox is unfair and inappropriate – there was no reason to be suspicious about her health, it was proper to take instructions with Nicholas being present and then going through the draft with her on her own. The provision of the letter of wishes by Nicholas was an administrative task at the behest of his mother. There is no evidence of lack of knowledge and approval.
4. (4) When the 2004 will was made she excluded Andrew of her own free will and violation after he had accused her of theft. The 2007 will was a reiteration of the 2004 will and by then Andrew had been arrested, which would have confirmed her wish to exclude him.
5. (5) There are no special circumstances that make it necessary to replace the executors and there is no need not to give effect to her freely expressed wish as to who should be her executors.
6. (6) This was a simple case which Andrew made appear complex. She never lacked capacity even if she experienced mild depression and occasional anxiety.

JUDGMENT MR JUSTICE VOS Introduction [1] This is my judgment on the retrial of the action. The original trial was conducted before me on 5 November 2012 in the absence of the defendant Mr Andrew Paul Jeffery (Andrew or the defendant) in circumstances that I shall deal with in due course. I gave an oral …

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