Analysis
The appellant (Mrs Quigley) appealed to Henderson J from an adjudication by HM Land Registry that the joint tenancy of her father (Mr Pilkington) and the respondent (Mrs Masterson) had not been severed prior to Mr Pilkington’s death on 20 March 2009.
Mr Pilkington and Mrs Masterson lived together between 1978 and 2001 but never married. They bought 173 North Street, Coventry (North Street) as joint tenants on 24 August 1992. Their relationship ended in 2001 and Mrs Masterson left North Street. In 2002, Mr Pilkington’s solicitor attempted to sever the joint tenancy. There was no appeal from the deputy adjudicator’s finding that the attempts to sever were unsuccessful.
Mr Pilkington’s health declined and by 2004 he had moderately severe dementia and was unable to manage his financial affairs or make a lasting power of attorney. Mrs Quigley applied to the Court of Protection on 20 April 2008 for permission to sell North Street. Mrs Quigley and Mrs Masterson could not agree who should be appointed Mr Pilkington’s deputy. Mrs Masterson made an application to the Court of Protection on 5 January 2009 to sell North Street. A contested hearing took place on 3 February 2009. The court ordered that Mrs Masterson should have conduct of the sale of North Street and Mrs Quigley should be appointed deputy for Mr Pilkington’s property and affairs save for the sale of North Street. A more detailed order was made on 13 March 2009. Before any action could be taken to sell North Street, Mr Pilkington died on 20 March 2009.
A restriction on the register had been entered in 2003 by Mr Pilkington’s solicitors on the basis that the joint tenancy had been severed. Mrs Masterson applied to the Land Registry in August 2009 to have it removed on the basis that no valid notice had been given and accordingly North Street had passed to her by survivorship. Mrs Quigley objected and the matter was referred to the adjudicator. The deputy adjudicator found that no valid notice of severance had been served. Mrs Quigley argued that there had been a common understanding in the Court of Protection proceedings that each party had a 50% interest in North Street. The deputy adjudicator held that no course of dealing or common intention could be spelt out from those proceedings because Mr Pilkington did not have capacity and Mrs Quigley had no authority to speak for Mr Pilkington until her appointment as his deputy.
On appeal, Mrs Quigley argued by analogy with proprietary estoppel and the law of misrepresentation that in circumstances where it had been made abundantly clear before her appointment that she considered the joint tenancy severed, her silence following her appointment was an adoption by her on Mr Pilkington’s behalf of an unconditional intention to sever. It would have been necessary for her to state the contrary to negate the consensus in favour of severance.
Henderson J invited further submissions on the question whether Mrs Masterson’s own application to the Court of Protection on 5 January 2009 could have been effective to sever the joint tenancy.
Held (allowing the appeal)
- (1) Before her appointment as deputy, Mrs Quigley had no authority to act for Mr Pilkington. There was no way in which Mrs Quigley’s words or actions before her appointment could be attributed to Mr Pilkington. Furthermore, Mrs Quigley had a statutory duty post-appointment to make decisions in her father’s best interests having regard to all the relevant circumstances. To fulfil this duty, it would have been necessary for Mrs Quigley to consider the whole matter afresh. There was no room for automatic attribution to her in her new capacity as deputy of views she had previously expressed in her personal capacity (para [28]).
- (2) Mrs Masterson’s application to the Court of Protection of 5 January 2009, when read together with her acknowledgment of service dated 11 May 2008 and her witness statement dated 19 September 2008, showed an intention by Mrs Masterson to place North Street on the market for sale so that the proceeds could be divided equally. The application should qualify as a notice of severance of the joint tenancy (para [32]-[33]). That notice could be treated as having been ‘given’ to Mrs Quigley once the Court of Protection had decided on 3 February 2009 that Mrs Quigley should be Mr Pilkington’s deputy (para [35]).
- (3) If necessary, Mrs Masterson’s witness statement of 19 September 2008, which stated that she and Mr Pilkington each owned 50% of the house, could be treated as a notice of severance (para [38]).
Continue reading "Quigley v Masterson [2011] EWHC 2529 (Ch)"