Macintyre & Anor v Oliver & Ors, Court of Appeal - Chancery Division, November 15, 2018, [2018] EWHC 3094 (Ch)

Resolution Date:November 15, 2018
Issuing Organization:Chancery Division
Actores:Macintyre & Anor v Oliver & Ors
 
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Neutral Citation Number: [2018] EWHC 3094 (Ch)

Case No: HC-2017-002053

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Rolls Building

London, WC2A 2LL

Date: 15/11/2018

Before :

MASTER SHUMAN

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Between :

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Justin Holmes (instructed by Knocker & Foskett) for the Claimants

Josh Lewison (instructed by Bircham Dyson Bell LLP) for the Fourth Defendant

Hearing dates: 29 March 2018

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Judgment ApprovedMASTER SHUMAN :

  1. This is a claim by Part 8 claim form issued on 19 July 2017 for guidance from the court on the true construction of the will trusts created by Violet Hamblen-Thomas (``Violet'') and her husband Charles Hamblen-Thomas (``Charles'') and on the identification of the beneficiaries. They had one son, Edwin Hamblen-Thomas (``Edwin''), who was known as Tom.

  2. The first claimant relies on a witness statement dated 19 July 2017.

  3. The position in relation to the defendants is as follows:

    (i) The 1st and 2nd defendant is Victoria Baron Oliver nee Wallis (``Victoria''). She has been joined separately in a representative and personal capacity. Victoria has filed an undated acknowledgment of service saying that she will abide by the court's decision. In addition she has filed a witness statement dated 30 January 2018. Victoria lives in the Republic of South Africa and was the goddaughter of Violet. Her mother, Enid Simpson (``Enid''), had been great friends with Violet throughout their lives.

    (ii) The 3rd defendant has played no part in the proceedings, which is inexplicable given that they contacted the claimant's solicitors, Knocker & Foskett (``KF''), by telephone on 20 December 2016. A certificate of service dated 15 August 2017 has been filed by KF confirming that the proceedings were served on the Trust headquarters on 16 August 2017.

    (iii) The 4th defendant has filed an acknowledgment of service dated 20 October 2017 and seeks a direction that it is the proper recipient of the legacy to St Bartholomew's hospital. Fiona Bickley, Director of Corporate Services of Barts Charity, has filed a witness statement dated 19 October 2017.

    (iv) The 5th defendant has filed an acknowledgement of service dated 29 August 2017 although failed to tick section A, B, C, or D. Reverand Corne, a Clerk in Holy Orders and the Rector of the Benefice of Broughton with Bassington and Houghton and Motissfont within which is situated the parish of Mottisfont, has filed a witness statement dated 11 September 2017. He refers to a letter from KF dated 25 August 2017 in which they confirmed that they would seek an order that any sums due to the church under Charles's will should be paid to ``the Church of the Parish of Mottisfont''.

    (v) The 6th defendant has filed an acknowledgement of service dated 18 August 2017 confirming that it does not contest the claim.

    (vi) The 7th defendant had played no part in the proceedings. A certificate of service dated 15 August 2017 has been filed by KF confirming that the proceedings were served at the 7th defendant's usual residence. On 29 March 2018 Ms Helen Pines-Richman, direct access counsel, attended court seeking an adjournment of the disposal hearing. No evidence was filed in respect of the application for an adjournment and no explanation given as to why the 7th defendant had only elected to engage in the proceedings on the day of the disposal hearing. Counsel was unable to articulate the basis of any adjournment. I refused that application and counsel withdrew. The 7th defendant remained in court for the hearing.

  4. I have had the benefit of very helpful detailed skeleton arguments supplemented by oral submissions from Mr Holmes and Mr Lewison.

    THE WILLS AND FACTUAL MATRIX

  5. Violet executed a will dated 16 December 1968 (``Violet's will''). By clause 1 she appointed Charles, Joseph Pearson Ede and Arthur Herbert Perks to be the executors and trustees. In broad terms Violet's will provided as follows:

    Clause 2 gave all of her jewellery and clothing to Enid ``but should she predecease me then I GIVE the same to her daughter'', Victoria.

    Clause 3 gave Charles a life interest in her freehold property known as Mottisfont House and if it was sold in her lifetime a life interest in the net proceeds of sale.

    Clause 4 declared that her trustees shall hold her estate upon trust to hold the income on protective trusts for her son Edwin during his life and after his death upon trust for all or any of his children who attain the age of 21 years.

    Clause 5 ``In the event of my said son dying without leaving children as aforesaid my Trustees shall hold my estate (subject as aforesaid) on trust to pay thereout the sum of Two hundred and fifty pounds to the Ladies Guild of the Royal Medical Benevolent Fund and subject thereto shall hold the same on trust for the said Enid Simpson absolutely but should she predecease me then on trust for the said Victoria Wallis absolutely''

  6. Violet died on 22 June 1973. Probate was granted to the executors on 7 February 1974. It can be seen from Violet's will that she left her estate on 3 trusts:

    (a) Mottisfont House was to be held on trust for Charles for his life-time;

    (b) Subject to (a) her estate was held on protective trusts for Edwin for his life and after his death on trust for all or any of his children who should attain 21 years;

    (c) In the event of Edwin dying without leaving any children, £250 was to be paid to the Ladies Guild and the remainder to be held on trust for Enid absolutely and if she predeceased Violet to Victoria absolutely.

  7. Charles made a will on 6 September 1982 (``Charles' will''). By clause 1 he appointed the partners in the firm of Hepherd Winstanley and Pugh to be his executors and trustees. The material parts of his will are as follows:

    Under clause 2 his freehold property known as 41 Abbey Meads Romsey was held on trust to sell and divide the net proceeds of sale into two equal parts:

    ``(a) the first part to be given to the Special Trustees for St Bartolomew's and St Mark's Hospitals (a registered Charity) for them to establish a fund in the name of my late wife Violet Eulalie Hamblen-Thomas for the treatment at St Bartholomew's Hospital of children under the age of six years

    (b) the second part to be given to the Chest Heart and Stroke Association Tavistock House ... (a registered Charity) for the benefit of the Romsey Open Gate Stroke Club Romsey Hampshire''.

    Clause 5 the residue of his estate is then applied as follows:

    (i) to pay debts testamentary and funeral expenses

    (ii) to pay pecuniary legacies to the named people in (a) to (f), in some cases subject to conditions

    (iii) the remainder to provide an income for life for Edwin and on his death to be divided into three parts and paid as follows:

    (a) to be divided equally between the Romsey Cottage Hospital and the Blandford Hospital;

    (b) to the Church of the Parish of Mottisfont Hampshire;

    (c) ``The third part to be paid to the proper officer of St Bartholomew's Hospital so that it can be used for the benefit of the Maternity Ward first to continue the existing practice of distributing to each mother a verse card in memory of my late wife and secondly with any residue for the purchase of an item of general use in connection with the Children's Unit such item to be purchased in memory of my late wife''.

  8. Charles died on 5 April 1983. Probate was granted on 6 December 1983.

  9. Enid died on 4 September 1998.

  10. Violet and Charles' son, Edwin, died on 14 August 2014 leaving no children.

  11. The claimants are the trustees of Violet's will trusts and Charles' will trusts. They were appointed by deeds of appointment dated 6 July 2017.

    THE ISSUES

    The first issue - Violet's will: does the gift over to Victoria fail?

  12. Mr Holmes postulates that ``since the gift to Enid was merely contingent and had not vested in her prior to Edwin's death, it fails, and since Enid did not predecease Violet, the gift over to Victoria also fails.'' Victoria contends that as a matter of construction the gift to Enid in clause 5 of Violet's will does not fail. Mr Holmes has helpfully set out two alternative strands of analysis, if either is correct the gift to Enid or the gift over to Victoria did not fail.

  13. Did the gift to Enid, under the principle of early vesting, vest in her on Violet's death? In Bickersteth v Shanu [1936] AC 290 (PC) a testator by his will appointed the appellants to be his executors and trustees. He devised certain real property in Lagos to his son and a separate clause stated that ``These devises shall take effect upon my said son attaining the age of twenty-five years''. The testator died in 1918. The son on attaining 25 years brought an action against the appellants claiming an account as from the date of the testator's death of the rents of the properties devised to him. Lord Maugham at pages 297 to 298 set out the established rule for construing devises of real estate, ``they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness.'' Considering the whole of the will and the circumstances in which it was made and applying the rule the words ``shall take effect'' related to the devise taking effect in possession. It was not intended to impose a condition precedent on the devise and the son was entitled to the rents claimed.

  14. The presumption in favour of early vesting applies whether the gift is of real or personal property. Mr Holmes submits that on the true construction of Violet's will the gift to Enid did not vest on the death of Violet. He remarks that had there been any children of Edwin who had attained the age of 21 there would have been a vested gift of the remainder to them. Indeed, had there been any children under 21 years following the rule in Phipps v Ackers (1842) 9 Cl & Fin 583 the gift might have vested in them in any event. Certainly, the wording of...

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