Ball & Ors v Ball & Ors, Court of Appeal - Chancery Division, August 02, 2017, [2017] EWHC 1750 (Ch)

Issuing Organization:Chancery Division
Actores:Ball & Ors v Ball & Ors
Resolution Date:August 02, 2017
 
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Neutral Citation Number: [2017] EWHC 1750 (Ch)

Case No: A30BS617

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Date: 2 August 2017

Before :

HHJ PAUL MATTHEWS

(sitting as a Judge of the High Court)

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Between :

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Barry Havenhand (instructed through Direct Access) for the Claimants

The Third, Fourth, Fifth, Sixth and Eighth Defendants appeared in person

The First, Second, Seventh and Ninth Defendants did not appear and were not represented

Hearing dates: 18-19 July 2017

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21

HHJ Paul Matthews :

Introductory

  1. This is my judgment on a claim arising out of an unfortunate family dispute about a will. The will is that of Barbara Olive Ball, and it was made on 27 May 1992, when she was 57 years old. She was born on 14 April 1935 and died on 8 November 2013, aged 78 years. The testatrix was married to James Sayles Ball, who was born in 1934 and died in about 2004. They had 11 children, including the three claimants and eight of the nine defendants. The ninth defendant is a grandson of the testatrix, the son of the Third Claimant. The first two defendants are the named executors of the will. As such executors, they assert a neutral part in the litigation, though it is fair to say that they have expressed their own personal views as well. But they did not attend or play any part in the trial. Although they made witness statements at an earlier stage, they did not give evidence at trial. Two other defendants, the seventh and the ninth, have not defended the claim, and apparently agree to be bound by any order the court makes or by any agreement that the other parties come to. The substantive defendants are therefore the third to the sixth and the eighth.

  2. I will deal with the facts in more detail later, but in very brief summary the case is this. The origins of the split in the family go back to 1991, when the three claimants reported their father to the police for sexually abusing them when they were younger. When the testatrix came to make a will in May 1992 she excluded the claimants from benefit, in essence dividing her estate between her eight remaining children and one of her grandsons. Their father, her husband, was prosecuted in respect of the allegations of sexual abuse, and in fact pleaded guilty at the Crown Court to indecent assault upon the second claimant, and incest and indecent assault upon the third claimant. The Crown Prosecution Service however did not proceed with charges of buggery and indecent assault upon the first claimant, and so no plea was entered to those. There was no formal evidence before me as to the sentence passed in respect of the offences to which the husband of the testatrix pleaded guilty, but I am told that it was a suspended prison sentence. The testatrix lived more than 20 years more, but never changed her will.

  3. The present legal procedure raises a number of legal issues. Lawyers will know this, but, for the benefit of the parties involved, I wish to emphasise that the court's role is solely to adjudicate on the legal rights of the parties, that is, according to the rules of law. It is not to settle scores between warring members of the same family, or to decide who (if anyone) has the moral high ground. Indeed, anyone who thought that will be disappointed. I say nothing about such things in this judgment, because it is none of my business.

    Procedure

  4. After the testatrix died in November 2013, the first claimant lodged a caveat in January 2014, and the fourth defendant entered a warning in June 2014. A few days later the first claimant entered in appearance, challenging the validity of the will on the grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. It appears that in August 2014 there was a summons in the Family Division of the High Court addressed to the First Claimant to show cause why his caveat should not be discontinued, and probate should not be granted to the executors. I do not know what happened to that.

  5. The claim form, of which the copy in the bundle is undated, together with the particulars of claim, dated 5 November 2014, launched a probate claim seeking a determination as to the validity of the will. But the particulars of claim go further than the claim form, and make an alternative claim for reasonable provision under the Inheritance (Provision for Family and Dependents) Act 1975. No point was taken on this by the defendants. An order was subsequently made by District Judge Watkins on 2 July 2015, giving directions to trial. There was a further order on 27 October 2016 by the same judge giving further directions. I held a pre-trial review on 16 June 2017 (adjourned from 9 June 2017).

  6. The first and second defendants, as executors, have had the benefit of representation by solicitors since the outset. However, they have remained neutral, and have played no substantive part in the litigation. The claimants originally also were represented by solicitors, but that ceased some time ago. For the purposes of the trial, they have engaged counsel by direct access, Mr Barry Havenhand. The 3rd to 6th and eighth defendants are unrepresented, although I have exceptionally permitted Mr Christopher Roebuck, husband of the fourth defendant, to speak for them at the trial and to ask questions on their behalf, with a view to shortening the proceedings. I record here that I consider that it did. I should also say that at the start of the trial I received a medical certificate, giving minimal information beyond saying that the fourth defendant was in hospital as an in-patient, and so unable to attend the trial. As other defendants gave similar evidence that which the fourth defendant was expected to give, and as there was no witness summons issued in this case, her absence has made no difference.

  7. At the trial, the claimants advanced their claim under three heads: lack of capacity, undue influence, and the claim under the 1975 Act. Although want of knowledge and approval was mentioned in the statements of case, it was not relied on to any serious extent at the trial, and Mr Havenhand did not press it in his closing submissions. Oral evidence was given by both sides on the first day of the trial. No evidence was given on this day in relation to the financial circumstances of any party, although this would obviously be relevant for the purposes of the 1975 Act claim. After both parties had concluded their evidence, and as already noted, I called attention to this absence. At the start of the second day, Mr Havenhand applied for permission to recall the claimants in order to give evidence of their financial position. After hearing Mr Roebuck I decided, for reasons which I then gave, that I would allow both the claimants, and any defendants who wished, to be recalled for this limited purpose. In the event, all the defendants did so.

    The witnesses

  8. At the trial, I heard from the following witnesses: the three claimants and the third, fifth, sixth and eighth defendants. There were significant disputes of fact, and I must therefore give my own assessment of the witnesses. I should however preface this by saying that, whereas each of the claimants made a separate witness statement, the defendants made a single joint witness statement. Their evidence was that they all met in person, with the exception of the Eighth Defendant, who lives in Scotland and joined the meeting via Skype, and drafted their statement together. That does not easily explain why the statement is signed and dated 8 December 2015 by the Eighth Defendant, but two days later, 10 December 2015, for the other defendants. The joint statement is unsatisfactory for other reasons, too, such as the failure to distinguish which defendant was the source of which piece of information. I note in passing that the style of the drafting much resembles that of the Facebook post made by the Fifth Defendant on pages 42-43 of the bundle, but I have not seen any example of social media posts by other defendants, and it may of course be just a coincidence.

  9. The first witness to give oral evidence was Mr Nigel Ball, the first claimant. He came across as a straightforward witness, but with limited understanding and a short attention span. He was not able to concentrate very well on the questions put to him, and frequently changed his answers as they were explained to him. Whilst I am sure he was trying to assist the court, I am not able to place much reliance on what he said, where it is not corroborated from an independent source.

  10. Next there was the second claimant, Debrah Churchward. She was very clear, calm, but controlling. For this reason, I am afraid that I did not feel confident about believing everything she said. Again, I would not be prepared to accept her evidence on an important issue where uncorroborated by other, independent evidence.

  11. The third witness was the third claimant, Barbara Briers. Although she began confidently, it quickly became obvious that she had great difficulty remembering anything with any precision. As she herself said, it was such a long time ago. Her evidence accordingly was useful to me only in a background way. I could not place reliance upon it on its own.

  12. The third defendant, Sharon Ferry, gave evidence in a rather disconnected way, clearly reluctant to agree anything put to her on behalf of the claimants, even when it was obviously right. She shied away from any hard questions which might expose differences within her ``camp''. She frequently took refuge in not remembering and not knowing, although I did not always have the sense that in fact she did not remember or did not know.

  13. The fifth defendant, Michelle Ball, gave evidence in a very quick and dramatic, even domineering way, coupled with a ready wit, and sometimes tinged with sarcasm. She was...

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