Benos, R. v [2019] EWCA Crim 1093
[1]together with Lesley Karen Roberts and Robin Lee Wilson. Mr Purvis continued to live at the property until his death on 11 April 2014. In accordance with the terms of his will, also dated 8 February 1991, the same executors were appointed and the same beneficiaries were entitled to share the whole residual estate, including his half of St Vincent Street.[2]purported to vary the disposition made in the respective will as follows: "That the dispositions made by the Will shall be varied and the Will shall be read and construed as if the Testator had directed his/her share in [St Vincent Street] shall be given to Gavin Benos of 39 Seton Avenue ... absolutely on condition that he discharges the outstanding Halifax mortgage":[3]and the account number of that mortgage was then given. The deeds were silent as to what would happen in the event that the mortgage was not discharged. As at the date of the deeds, the mortgage was in the region of £14,500. The value of the property was thought to be about £72,000. The equity in the property was therefore about £57,500.After the death of Mr Purvis, the mortgage payments continued to be paid, apparently by
[4]Deborah Kay Wilson; although it was unclear from where the money originated.[5]the local authority as the landlord. He collected the rent.[6]The same day, St Vincent Street was searched and a second cannabis farm discovered. This was spread over two downstairs bedrooms. The rear room was equipped with lights, ventilation and plant grow material with about 30 plants. The front bedroom had a commercial grow tent with lamps and a ventilation system and a further 20 less established plants. The estimated yield from the plants at St Vincent Street was two and a[7]half kilograms of skunk cannabis with a street value of nearly £13,000.[8]timetable for confiscation proceedings was fixed.[9]was any interest he had in St Vincent Street.[10]land in England and Wales are to any legal estate or equitable interest or power".[11]an equitable interest in St Vincent Street in the circumstances we have described.[12]the purposes of the confiscation proceedings. It seems that this second ground for concluding that the Appellant was the beneficial owner of St Vincent Street was the main focus of the argument before the judge. In any event, having found that the Appellant had that equitable interest, the judge made an order in the full amount of the agreed benefit[13]received, namely £43,344.01.[14]equitable interest in St Vincent Street at all.[15]Mr Cross submitted that the clause following made that disposition subject to a condition precedent that the building society mortgage was discharged. But it is well-established that something that is expressed as a "condition" of a transfer of real property may not in substance be intended to be a condition precedent. It often simply reflects that the property once transferred will be subject to some form of charge or other burden. For example, in Re Kirk Deceased (1882) 21 Ch D 431 an express condition in respect of the transfer of a property that the devisee should relinquish a debt due to him by the testator was found to be on its true construction not a condition precedent for the transfer but was intended rather to devise the property subject to a charge for the debt. Similarly, in Re Cowley (1885) 53 LT 494, there was a condition that the devisee pay certain sums of money, which was again construed not as a condition precedent which in default caused[16]forfeiture but as a charge on the property.[17]and insofar as they are pursued and suffer any loss as a result.[18]the date of the deeds had the equitable interest in the property.[19]no words of transfer.[20]estate had been settled and the estate closed, they acted to transfer the rights in the estate that the beneficiaries had insofar as St Vincent Street was concerned. That was not as a matter of law an interest in St Vincent Street itself – for example, the debts of the estate, including liability for any tax, may have been such that the property would have to be sold and the proceeds distributed – but section 142 did not prevent the executors and beneficiaries getting together to redirect the interests that the beneficiaries had at that time[21]to the Appellant. In the deeds to which we have referred, that is what they did.[22]can be made on the basis of that charge of circumstances.[23]about the merits of any such claim.[24]appeal is consequently dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk