Todd v Parsons & ors [2020] WTLR 305

Analysis

T died in 2009, aged 96 years, leaving two adult children, her son, who was the claimant (C), and her daughter, who was the third defendant (D3). By a will document dated 25 September 2008, T appointed the first defendant (D1) and the second defendant (D2) as her executors. D1 was the daughter of D3 and T’s only grandchild. D2 was the solicitor who drafted the will document. Both remained neutral in the proceedings.

In June 2017, C brought a claim for probate in solemn form of the will document and for an order removing D1 and D2 as executors and appointing an independent personal representative. By counterclaim, D3 (a) challenged the validity of the will document as a will on the grounds of lack of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny and (b) sought a declaration that T’s property, known as West Winds, was held on trust for her or alternatively for a family trust known as the A Trust by way of constructive trust or proprietary estoppel.

T, her sister V, and D3 and her husband (H) (they referred to themselves together as the commune) financed (by selling their own properties) the purchase and development of a property known as Lynch Farm, which consisted of a farmhouse and a number of outhouses, for homes for each of T, V, and D3 and H. There was an informal arrangement amongst them that the individual properties would not be sold or given to anyone outside the members of the commune. V contributed 16.71% of the costs, T contributed 33.49% and D3 and H contributed 49.8%. In reliance on the informal arrangement, D3 and H made the contribution, organised and supervised contractors and did a substantial amount of work personally on the project, which took some six years to complete.

Lynch Farm was conveyed to D3, H, T and V as joint tenants. The following events then occurred:

1. a) D3, H, T and V entered into a declaration of trust, provisionally declaring that the beneficial interest in Lynch Farm was to be held on trust as to 50% for D3 and H, 30% for T and 20% for V.
2. b) A deed of partition was then entered into, terminating the beneficial tenancy in common of the whole property, with a division into three separate parts: the Farmhouse was to be held absolutely by D3 and H, Dove Cottage by V and West Winds by T.
3. c) V died, leaving her estate to T for life, with remainder over to D3 absolutely. The devolution of her estate was then varied so that T gave up her life interest and Dove Cottage was divided between D3 and D1.
4. d) The A Trust was then established, essentially for the benefit of D1. D3 assigned her half share of Dove Cottage to the A Trust. D3 and H executed a declaration of trust, declaring that they held the Farmhouse for themselves and the trustees of the A Trust in equal one third shares.

T then took financial advice, stating that she was concerned that her existing will was unfair to C, because she wished to leave West Winds to D3, but its value had increased in comparison to the remainder of her estate.

In 2008, T was admitted into hospital. The judge found that at the time she had some confusion episodes but that her personality did not change. She took a Folstein mini-mental state examination (MMSE) test, designed to check mental capacity, scoring 28 out of a maximum of 30. T asked each of D3 and C to arrange for her to make a new will. C arranged for D2 to visit T. D2 was a very experienced will maker and, after interviewing T alone, he concluded that, although she was bedbound, hard of hearing and did not see very well, there were no ‘red flags’ so far as her capacity was concerned and she was capable of giving clear instructions for a will. The judge found that T was aware of what her estate comprised, that C and D3, and to a lesser extent, D1, were the persons with moral claims on her property and that she knew that she had promised to leave West Winds to D3’s side of the family. He was satisfied that the instructions for the will were those of T alone.

T instructed D2 that C should have 70% of her estate, D3 should have 25% and D1 should have 5% and the residuary gift in the will document that T duly executed reflected this. There was no specific mention of West Winds. Four days after the execution of the will document, D2 wrote to T’s GP to ask if she had capacity to make a will and the doctor replied that he considered T’s mental capacity to be such as to enable her to give valid instructions for a will.

Held:

As to the proprietary estoppel claim:

1. As to the proprietary estoppel claim:
   1. 1) The informal arrangement between T, V, D3 and H, when they bought Lynch Farm and divided it into three properties, that the individual properties should not be sold or given away outside the members of the ‘commune’ was a sufficiently clear promise to form the subject of a proprietary estoppel equity.
   2. 2) D3 relied on a promise by T to leave West Winds to her by entering into the ‘ commune’ arrangement in the first place, selling her own home and applying the proceeds and other monies in the purchase and redevelopment of Lynch Farm, as well as giving up her time and engaging in much physical effort, project management and otherwise to achieve that redevelopment.
   3. 3) A proprietary estoppel equity did arise in favour of D3.
   4. 4) The remedy in this case was to make good D3’s expectation created by T’s promise and a declaration was made that West Winds was held by T’s estate upon trust for D3 or her nominee.
2. As to the validity of the will document:
   1. 1) On testamentary capacity:
      1. a. Having regard to the expert evidence, the fact that the deceased was suffering from an arterial disease of the brain and her age (95 years old) were not very significant.
      2. b. At the time of making the will document T had sufficient capacity to understand the extent of the property of which she was disposing in a general sense and its value.
      3. c. Although the ‘golden rule’ was not complied with, it was not a touchstone of validity where the will document, whose terms were not, on their face, inexplicable or irrational, was prepared by an experienced and independent solicitor following a meeting with T, during which it was read through and explained to her and D2 formed the view that she was capable of understanding it (Re Key Deceased [2010] 1 WLR 2020).
   2. 2) On want of knowledge and approval, the judge was satisfied that T knew and approved of the contents of the will document when she executed it.
   3. 3) On undue influence, D3 had the burden to prove that C exercised influence over T, either by coercion or by fraud, and did not discharge that burden.
   4. 4) On the claim of fraudulent calumny, the judge found that, not only did C not poison T’s mind against D3, who would otherwise have been a natural beneficiary of T’s bounty, by casting dishonest aspersions on her character, any causative effect would have been taken away by the interposition of D2 as her solicitor.

Accordingly, the will document was valid as a will and the claim for a grant of probate in solemn form succeeded.

As to the claim for the removal of D1 and D2 as executors, C and D3 were on opposite sides of the case and, as D1 and D2 gave evidence on opposite sides, it was in the best interests of the estate to have someone independent to administer it.

JUDGMENT HHJ PAUL MATTHEWS : Introduction [1] This is my judgment on the trial of a claim and counterclaim concerning the estate of the late Minnie Eileen Todd, who died on 6 April 2009, aged 96 years. She left two adult children, the claimant and the third defendant. By a will dated 25 September 2008, …

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