Analysis
On 27 May 2015 the deceased entered into four transactions: first, a long lease of her flat, in exercise of her right to buy; second, a legal charge over her leasehold interest in favour of the defendants; third, a declaration of trust that she held the leasehold interest on trust for herself and her granddaughter as beneficial joint tenants; fourth, a will leaving her residuary estate to her three sons in equal shares. The claimant sons initially claimed that the deceased lacked capacity to execute the will and declaration of trust, and pleaded lack of knowledge and approval and/or undue influence in the alternative. The plea of lack of capacity was abandoned on the third day of trial.
The issues for the court were:
- 1) Did the deceased know and approve the contents of the will?
- 2) Was the execution of the will procured by the actual undue influence of the defendants?
- 3) Was presumed undue influence established in relation to the execution of the declaration of trust?
Held:
- 1) The failure to challenge the deceased’s capacity to enter into the lease or the charge highlighted the central illogic in the claimants’ case. If she had capacity to purchase, borrow and grant a charge it was difficult to see sensibly how she could lack capacity to declare beneficial ownership or deal with the gifting of her residuary estate by will. In any event, the video evidence made it clear beyond peradventure that the deceased knew and understood perfectly what she was signing.
- 2) For the same reasons the plea of lack of knowledge and approval failed. The will carried out precisely what the claimant alleged was the deceased’s intention.
- 3) Undue influence was not proven in relation to the will, and key allegations were not put to the defendants in cross-examination. The plea of actual undue influence in relation to the will was hard to reconcile with a plea of presumed undue influence in relation to the declaration of trust, the two documents having been executed at the same time in the same circumstances. Although theoretically possible, the relationship of trust and confidence was not established on the facts, and the transaction was explicable in terms other than those of undue influence – Royal Bank of Scotland v Etridge (No. 2) applied. Settling the property on a beneficial joint tenancy did not dispose of the asset, nor did it put the deceased at risk of losing her home.
Claim dismissed.
JUDGMENT HHJ GERALD: [1] On 27th May 2015 Nazrene Nemazee, then aged 95, entered into four material transactions by signing, first, a long lease of 6 Glebe Close, Prince of Wales Terrace, Chiswick, London W4 2EZ which was in exercise by her of her right to buy her Council flat which she had occupied since …Continue reading "Nemazee v Nemazee [2020] WTLR 637"