Macdonald & Anor v Frost, Court of Appeal - Chancery Division, October 05, 2009, [2009] EWHC 2276 (Ch)
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Macdonald & Anor v Frost, Court of Appeal - Chancery Division, October 05, 2009, [2009] EWHC 2276 (Ch)
Neutral Citation Number [2009] EWHC 2276 (Ch)
Case No: BM3 40093IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBIRMINGHAM DISTRICT REGISTRYBirmingham Civil Justice CentreDate: 5th October 2009GERALDINE ANDREWS QC(sitting as a Judge of the High Court)- - - - - - - - - - - - - -Between :- - - - - - - - - - - - - -- - - - - - - - - - - - - -Barbara Rich (instructed by Blake Lapthorn Tarlo Lyons) for the Claimants Clifford Darton (instructed by CMHT Commercial) for the DefendantHearing dates: 27th, 28th, 29th April and 1st May 2009- - - - - - - - - - - - - -JUDGMENTMiss Geraldine Andrews QC:INTRODUCTION1. This is a claim by Professor Averil Macdonald and Ms Deborah Bannigan, who are the daughters of the late Joseph Henry Frost, to an equitable interest in their late father's estate on the basis of an alleged proprietary estoppel. For convenience and simplicity, and without intending any disrespect, I shall follow the practice that is often adopted in cases of this nature of referring to the claimants (Averil and Deborah) their father (Joe) and other members of the family by their first names or by the names by which they were usually known.2. Averil's and Deborah's claim is founded on what they say was a clear and unequivocal promise or assurance by their parents, Joe and his first wife Clara Eleanor Frost (Clare), that Joe and Clare would organize their affairs so that ``whatever happened, the estate of the survivor of them'' would pass to their daughters in equal shares. Their case is that in reliance on this assurance, which was first made in 1986 and which they say was repeated by Joe on a number of subsequent occasions in the years before his death, Averil and Deborah agreed to make payments of £100 per month to their parents (and to the surviving parent) as a contribution towards living expenses. There is no dispute that Averil and Deborah did make those regular fixed payments, without reference to the state of their own personal finances, until Joe passed away on 23rd May 2006 at the age of 83. Averil set up a standing order to pay £25 per week directly into Joe's bank account. Deborah paid the council tax and utility bills, which together came to about £100 per month, as and when they fell due, until there came a point during the course of 2000 when she, too, set up a standing order, in her case a monthly standing order for £100 to be paid into Joe's bank account.3. The reason why the matter has come before the Court is that Joe is said to have reneged on the promise. Clare Frost died in June 1995. On 4th November 2002 Joe remarried. At around the same time he made a Will leaving his estate to his new wife, Marion, if she survived him for more than 28 days. The Will provided that if Marion predeceased him or failed to survive for that period, Joe's estate would pass in equal shares to Joe's grandchildren and step-grandchildren: Averil and Deborah would receive nothing. On 31st December 2004 Joe made his final Will, which was in identical terms to the 2002 Will save that Pandora, Deborah's younger child, who was born after the 2002 Will was made, was added as a substitutionary beneficiary. Again, Averil and Deborah were to receive nothing. 4. There is no question before the Court as to the validity of that Will and the evidence suggests that, though he was physically frail, Joe remained mentally alert to the end. Indeed, as I shall go on to explain, there appears to be little doubt that, at around the time of his remarriage, Joe had made up his mind that he was not going to leave any part of his estate to Averil or Deborah even if Marion predeceased him, and that remained his intention up to the date of his death, some 3½ years later. The main issue that I have to decide is whether Joe's estate was bound by a proprietary estoppel precluding him from disposing of the estate in the manner in which he wished. 5. As one might expect, that estate chiefly comprises the house in which Joe and Marion lived, 3 Harborough Drive, Aldridge (``the House''). Aldridge is a small town on the outskirts of Birmingham, known to its residents as ``the village''. Joe was born in Aldridge and, apart from his military service during the Second World War, spent his life there. The House was built on land acquired by Joe and Clare in 1970, opposite a property then known as 44 Birmingham Road, Aldridge, where the couple were running a grocery business (``the Shop''). After moving into the House, Joe and Clare lived there for the remainder of their lives. 6. The House has recently been valued at £200,000. Marion, who is now aged 86 and in such poor health that she was unable to attend the trial to give evidence, lives there still, though it seems unlikely that she will be able to cope with living there for much longer. Averil and Deborah have made it clear from the onset of these proceedings that they have no intention of depriving Marion of a roof over her head and something on which to l...See the full content of this document
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