White v Matthys & ors [2014] EWHC 648 (Ch)

Analysis

Joseph Robson (the deceased) had two sons, the fourth and fifth defendants. When he retired in 1992, the deceased sold his residential property and moved to Spain. He did not own any property in the UK thereafter.

By a will dated 30 March 1995, the deceased left his Spanish estate to the fourth defendant absolutely. By a will dated 29 November 2006 (the 2006 will), the deceased appointed the claimant as his executor and left his residuary estate outside Spain to the British National Party (the BNP). The deceased died on 21 March 2010 leaving a net English estate of approximately £366,000. The Spanish estate was worth approximately £1,200.

On 23 July 2010, the fourth and fifth defendants’ solicitors corresponded with the claimant’s solicitors, contending that, because the deceased was not registered on the electoral register in the five years before his death and was therefore not a permissible donor for the purposes of the Political Parties Elections and Referendums Act 2000 (the 2000 Act), the deceased’s residuary gift to the BNP failed and devolved to them according to the intestacy rules.

On 12 September 2011 three bequest trustees of the BNP executed a deed of variation (the deed of variation), which sought to vary the 2006 will by settling the residuary estate on the trustees of the Joseph Robson will settlement (the settlement) – this had been established for the purpose of receiving this residuary legacy and the initial trustees were Nicholas Griffin, chairman of the BNP, the second defendant and the third defendant respectively. Subsequently, by a deed of appointment and retirement the first defendant replaced Mr Griffin as a trustee of the settlement.

In the circumstances, the claimant sought the court’s directions, pursuant to the Civil Procedure Rules 1998 r64.2(a), as to how the estate of Joseph Robson should be distributed.

Held – directing the claimant to distribute the deceased’s residuary estate to the third and fourth defendants on intestacy:

1. 1) To qualify as a ‘permissible donor’ for the purposes of s54 of the 2000 Act, the deceased had to have been on an electoral register at any time within the period of five years ending with the date of his death. The court found that the deceased was not a permissible donor on the balance of probabilities: he was not registered at his former residential address at the relevant time and, since he had owned no other property in the UK after 1992 and did not return to live there, the possibility that he was registered at a different address was, at best, unlikely.
2. 2) Contrary to s54(1)(a) of the 2000 Act, the BNP accepted and received a donation by entering into the deed of variation:
3. (a) The testamentary disposition made to the BNP under the 2006 will constituted a gift of property in the form of a chose in action, namely a right to have the estate duly administered. Accordingly, there was a ‘donation’ as defined by s50 of the 2000 Act.
4. (b) In executing the deed of variation and thereby transferring or assigning the chose in action to the trustees of the settlement, the bequest trustees, for and on behalf of the BNP, unequivocally assumed ownership rights and therefore ‘accepted’ the donation for the purposes of s54 of the 2000 Act.
5. (c) When a donation is accepted by a positive act assuming ownership it must have been received at the latest by the time of acceptance. Accordingly, the court found the gift under the 2006 will to have been ‘received’ by the BNP at the time when the deed of variation was executed.
6. 3) The BNP could not have enforced their chose in action to have the deceased’s estate administered for its benefit as this would have involved giving effect to a donation made by an impermissible donor in breach of s54 of the 2000 Act. Accordingly, it was inappropriate to direct that the deceased’s residuary estate be distributed to the first to third defendants in order that the Electoral Commission might bring forfeiture proceedings under s58 of the 2000 Act.
7. 4) In the circumstances, the court directed the claimant to distribute the deceased’s residuary estate to the fourth and fifth defendants pursuant to the intestacy rules.

JUDGMENT RICHARD SHELDON QC: Introduction [1] In this Part 8 claim, the claimant seeks directions pursuant to CPR r64.2(a) as to how the estate of Joseph Robson (the deceased) should be distributed. The claim raises issues as to the proper construction and effect of the Political Parties Elections and Referendums Act 2000 (the 2000 Act). …

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