Macdonald & Anor v Frost [2009] EWHC 2276 (Ch)

[2009] EWHC 2276 (Ch)

Case No BM3 40093

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Civil Justice Centre

Date 5 th October 2009

GERALDINE ANDREWS QC

(sitting as a Judge of the High Court)

Between

(1) AVERIL MACDONALDClaimants

(2) DEBORAH BANNIGAN

Barbara Rich (instructed by Blake Lapthorn Tarlo Lyons) for Claimants

Clifford Darton (instructed by CMHT Commercial) for Defendant

Hearing Hearing dates: 27 th, 28 th, 29 th April and 1 st May 2009

JUDGMENT

Miss Geraldine Andrews QC:

INTRODUCTION

[1]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 live. They accept that even if they succeed in their claim, the Court would have to take into account the need to make some provision for Marion. £200,000 would plainly be insufficient for private nursing accommodation and care, so the Court has been invited to make a declaration that the House (and its proceeds of sale) is held on trust, in such shares as are found to be appropriate to achieve the minimum necessary to do justice, with a power in the trustees to advance capital as and when required to meet Marion’s needs; the residue to go to Averil and Deborah when Marion passes away. On the other hand, even if I were to find that there was no proprietary estoppel, Mr Darton on behalf of the Defendant acknowledged that Averil and Deborah may have a claim against Joe’s estate in restitution. They have each expended £100 per month for approximately 20 years. Although these sums seem relatively small when viewed in isolation, over the years the expenditure adds up to £48,000 without taking into account the present value of the money expended, or adding interest.

[7]In the light of the above, it is disappointing that the parties to this litigation have been unable to reach a compromise. Although both sides were at pains to assure me that there was never any ill-feeling between Averil and Deborah on the one hand and Marion on the other, I gained a very strong impression on listening to the evidence that I was not, by any means, told the whole story. The fact that neither of Joe’s daughters was invited to his wedding to Marion, that at around the same time Joe appears to have cut them both out of his Will, that he had not changed his mind about that when he made his final Will two years later, that Deborah did not attend Joe’s funeral but chose to remember him with her own private ceremony at home, and that on more than one occasion Averil had to resort to using the “PALS” service at the hospital to which Joe was admitted as a means of finding out how her father was and getting messages to him, are examples of indications of far greater family tensions than anyone was prepared to admit. However, it is not the function of the Court to speculate, but to decide the case on the evidence that was put before it, and that is what I shall do. PROPRIETARY ESTOPPEL

[8]The application of the doctrine of proprietary estoppel in a context such as the present has been the subject of very recent consideration by the House of Lords in Thorner v Majors

[2009] UKHL 18

(“Thorner”). Despite suggestion in some respected academic quarters that the doctrine had been severely curtailed or even extinguished by the decision of the House of Lords in Cobbe v Yeoman’s Row Management Ltd

[2008] 1 WLR 1752

, its existence and availability as an equitable remedy were confirmed in the more recent case, and Thorner is now to be taken as the leading modern authority.

[9]Although there is still no comprehensive and uncontroversial definition of proprietary estoppel, there are essentially three elements: a representation or assurance made to the claimant pertaining to an interest in identified property; reasonable reliance on it by the claimant; and detriment to the claimant in consequence of that reliance. The claimant has to show that it would be unconscionable for the person who made the assurance or representation to go back on his word, and deprive the claimant of the proprietary interest he had been led to expect. In Thorner, the House of Lords had to decide two issues; first, what must be the character or quality of the assurance, and secondly, what consequences flow if the land to which the assurance relates is inadequately identified or changes its situation or extent during the period between the giving of the assurance and its repudiation.

[10]The main problem facing the claimant in Thorner was that he had to establish the necessary assurance by inviting the court to draw an inference from the statements and behaviour of the testator, a man of few words who never stated in terms that he intended the claimant to inherit the farm that was said to be the subject of the proprietary estoppel. Lord Walker, at paragraph 56, said this:

“I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context.”

Lord Neuberger, who agreed, sounded the following note of caution in paragraph 85:

“it would be quite wrong to be unrealistically rigorous when applying the “clear and unambiguous” test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually. Again this point is underlined by the authorities, namely those cases I have referred to in para 78 above, which support the proposition that, at least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.”

Lord Neuberger, who agreed, sounded the following note of caution in paragraph 85:

[11]A further essential aspect is that the assurance must relate to identified property (usually land) owned, or perhaps about to be owned, by the testator. That element was emphasized by Lord Walker in Thorner at paragraph 61, in which he explained that this was one of the main distinguishing features between proprietary and promissory estoppel. Lord Neuberger agreed with that view, but added in paragraph 98 that “it would represent a regrettable and substantial emasculation of the beneficial principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly defined in every case.” Thus the identification of the property must be sufficient to give the promise the clear and unequivocal character required to found this species of estoppel, but it need not be defined with precision.

[12]In Thorner the promise related to “the farm” and the House of Lords had no difficulty in finding that this was a sufficient identification of the land for the purposes of the doctrine of proprietary estoppel. The claimant was entitled to inherit the land and buildings that comprised the farm as at the date of the testator’s death (even though they were not exactly the same as when the promise was made) because that is when the equity crystallised. They held that changes in the character or extent of the property in question were relevant to the relief which equity will provide, but do not exclude such a remedy when there is still an identifiable property (per Lord Hoffmann at paragraph 9). As Lord Neuberger said in paragraph 95 “the property the subject of the equity could be conceptually identified from the moment the equity came into existence, but its precise extent fell to be determined when the equity crystallised, namely on Peter’s death”. However, in paragraph 102, he went on to acknowledge that there may be cases where the facts justify a different conclusion, either because the promise had a different meaning at the time it was made, or because intervening events justify giving it a different effect – or even no effect. Lord Walker, likewise, drew a distinction in paragraph 63 between the situation in Thorner and the cases of Layton v Martin

[1986] 2 FLR 227

, where the deceased made an unspecific promise of “financial security” and Re Basham

[1986] 1 WLR 1498

, where the promise related to the deceased’s estate.

[13]Re Basham probably marks the widest boundary of the application of the doctrine of proprietary estoppel thus far in this jurisdiction (and, so far as I have been able to ascertain, in any other common law jurisdiction). The claimant in that case was the deceased’s stepdaughter, who had looked after him for many years. She had moved into a cottage owned by the deceased but purchased with money provided largely by the claimant’s mother. When a boundary dispute arose with a neighbour she had taken legal advice from her own solicitors, since the deceased had told her that the advice was for her benefit because the house was hers. Various other assurances were given to her over the years. When the deceased died intestate, the claim was not confined to the cottage, but extended to the residue of his estate (which included money). The trial judge, Edward Nugee Q.C., rejected the defendant’s argument that a claim cannot be based on proprietary estoppel where the expectation is that A will inherit B’s residuary estate. It is clear from his reasoning that the judge regarded the application of the doctrine of proprietary estoppel, in the context where the belief engendered is that the claimant will be given a right in the future, as a species of remedial constructive trust (see page 1504 letter A). He said, at page 1510D-E “it is clear that in other cases of constructive trust, such as those arising from mutual Wills, the trust can bind the whole of B’s estate.” He added that he saw no reason in principle or authority why the doctrine of proprietary estoppel should not apply so as to raise an equity against B in favour of A extending to the whole of B’s estate.

[14]There is a view, whose most enthusiastic protagonist is Lord Scott of Foscote, that cases where the relevant representation has related to inheritance prospects are easier to understand as constructive trust cases. Lord Scott has made it clear that he would prefer to keep proprietary estoppel and constructive trust as distinct and separate remedies, to confine proprietary estoppel to cases where the representation, whether express or implied, on which the claimant has acted is unconditional, and to address the cases such as Thorner or the present case where the representations are of future benefits, and subject to qualification on account of unforeseen future events, via the principles of remedial constructive trusts. He expressed this view most recently in Thorner at paragraph 20. Lord Scott pointed out in clear terms the difficulties of applying the principles of proprietary estoppel to inheritance cases. After the representation is made and acted upon, the circumstances of the representor, or his or her relationship with the representee, or both, may change and bring about a change of intentions on the part of the representor. For example, in that case, the owner of the farm may have had to sell it to provide for his care in his old age. Even though that might appear to be a very good reason for changing his mind, and the claimant was unlikely to have objected, nevertheless, if there was a proprietary estoppel, strictly speaking the owner would have been reneging on his promise to leave that property to the claimant when he sold it to make provision for himself.

[15]Despite his reservations about the use of proprietary estoppel in this context, Lord Scott nevertheless expressed “broad agreement” with the reasons given by Lord Walker and Lord Neuberger for allowing the appeal, as he considered that on its facts Thorner was a paradigm case for the application of a remedial constructive trust. It follows from Lord Scott’s analysis that it is wrong in principle to confuse the two distinct equitable remedies of proprietary estoppel and constructive trust, and to regard the former as a species of the latter, and that is one aspect of the reasoning in Re Basham that must now be open to doubt.

[16]Lord Scott’s approach, though it may have much to commend it, has yet to command widespread support, and this area of the law (or rather, equity) remains a fertile ground for academic debate. In Thorner the majority did not adopt Lord Scott’s analysis. They decided the case on the basis of the application of principles of proprietary estoppel. The House of Lords was invited to express the view that Re Basham was wrongly decided. Lord Walker declined that invitation, on the basis that it was unnecessary to deal with the point, since Thorner was not a case about a residuary estate and the promise related to an identifiable property, the farm. He did point out, however, that Mr Nugee Q.C. relied largely on authorities about mutual Wills, which he said “are arguably a special case”. In his earlier judgment in the similar case of Gillett v Holt

[2001] Ch 210

at 226, Robert Walker LJ (as he then was) referred to the fact that Re Basham was arguably at odds with the earlier decision of Scott J (as he then was) in Layton v Martin (cited in paragraph 12 above) which was not cited in Re Basham and possibly had not been reported at the time when the case was tried. Yet he also observed that the decision in Re Basham had been cited in two subsequent cases in the Court of Appeal without criticism, including Wayling v Jones

(1993) 69 P &CR 170

where the assurance was “it’ll all be yours one day”. However the Court of Appeal did not expressly approve Re Basham in either of those cases, and in Wayling v Jones the parties to the litigation had agreed that proprietary estoppel could apply in those circumstances.

[17]In the present case, in which the claim was confined to proprietary estoppel, the point does arise squarely for determination because it was the evidence of both Averil and Deborah that the assurances given to them from time to time related to the estate of the surviving parent. Both of them said that they understood this to mean the House, because it was the only asset of any value that their parents had at the time of the original assurances in 1986 and it was the asset that they and their parents were seeking to keep in the family. In the event, the House was the only asset of value left on Joe’s death. However, the fact that this turned out to be the case twenty years after the time when, on the Claimants’ case, the original “assurance” was given to them cannot have any bearing on whether the assurance, if it was given, was of the requisite nature to give rise to a proprietary estoppel.

[18]In 1992 Clare inherited around £45,000 from two elderly aunts. On the evidence before me, that money was spent before Joe died, but the fact of that unexpected inheritance serves to highlight the difficulties that could arise in applying the concept of proprietary estoppel to assurances given about the future estate of the promisor(s), whose contents and character are liable to change over the years. Likewise, at the time of the alleged assurance the couple had a handful of premium bonds that had been given to them when they were still running the Shop by a well-known frozen food producer, as a reward for a promotion on frozen peas. Suppose that one of those bonds had subsequently come up with the £1 million prize - could it seriously be suggested that an assurance given and acted upon years earlier about “the estate of the survivor” extended to that money, or what was left of it on the death of the survivor, or to assets purchased with it? In my view, it would be very difficult to stretch the principles of equity that far, or to defend the proposition that the couple were fettered from making some different testamentary disposition of the unforeseen windfall because of an assurance they had given at a time when they had no idea it would come to them.

[19]In Thorner Lord Walker (with whom the rest of their Lordships, including Lord Scott, agreed) made it clear in paragraph 61 that a proprietary estoppel can only apply to identified property. The Court has to be astute to avoid a blurring of the boundaries between promissory and proprietary estoppel. The answer to the question whether the property has been sufficiently identified by the person making the promise is a key factor in determining whether the promise or assurance was sufficiently clear and unequivocal to give rise to an estoppel of the latter kind. In the light of the decision in Thorner (and indeed the observations in Gillett v Holt to which I have also referred) I consider that Re Basham is a decision that now has to be treated with the utmost caution. It certainly cannot be regarded as laying down any general principle to the effect that assurances given about inheriting a residuary estate will always be sufficient to give rise to a proprietary estoppel. If and insofar as the decision indicates that the property in question does not need to be identified, it is inconsistent with Thorner.

[20]However, although the reasoning in Re Basham is difficult to reconcile with the requirement reiterated in Thorner that the property should be sufficiently identified, it is important to bear in mind Lord Neuberger’s warnings about approaching cases of this nature practically and sensibly. The assurances must be evaluated in the specific context in which they are given, bearing in mind that members of a family are less likely to be precise and legalistic when discussing such matters than people in a commercial relationship, such as the parties in Cobbe v Yeoman’s Row. On that approach, it is not impossible to conceive of a situation in which representations by A to B about “my estate” could be interpreted legitimately as referring to specific identified property because of the context in which they were made, though in many cases, possibly the majority, such representations or assurances are likely to be regarded as too vague and imprecise to satisfy the test. The precise phraseology used by the person giving the assurance is far less important than what a reasonable person in that specific context would have understood by it.

[21]In this case, the crucial question I have to decide is whether there was an assurance or series of assurances that was sufficiently clear and unequivocal to give rise to a proprietary estoppel, bearing in mind the guidance in Thorner. No-one on the Defendant’s side was present on any of the occasions when Joe is said to have given the relevant assurances to his daughters. However I have to consider and evaluate the evidence of Averil and Deborah against the background of any relevant contemporaneous documents, the behaviour of all the main protagonists, and the underlying probabilities.

THE BACKGROUND TO THE CLAIM

[22]Joe was a prominent and well-respected member of the local community in Aldridge. According to Deborah, he was even introduced to outsiders as the “Mayor of Aldridge” – a title that was tongue-in-cheek, as no such post exists, but one that illustrates the position that he held within that close-knit community. Even Clare, who came from Great Barr, which is only about 5 miles away, was regarded as an outsider by the locals and referred to for many years simply as “Joe’s wife”.

[23]After he was demobilised, Joe worked at the Co-operative Stores with Marion’s first husband, a Mr Keates. Joe and Clare socialised with the Keates family when they were younger, but after Joe left to start up his own business they saw each other less frequently. Averil was born in October 1957 and Deborah in July 1961. In 1962, Joe and Clare purchased the Shop, then known as 44 Birmingham Road, which had accommodation upstairs in which the family lived until Joe and Clare bought the plot of land opposite and built the House that became the family home.

[24]Unfortunately, in the same year as the couple purchased the Shop, and while Deborah was still a baby, Clare had a nervous breakdown. Thereafter, her mental health was always fragile, and in the early 1990s she developed chronic agoraphobia and, paradoxically, claustrophobia. She increasingly preferred to stay at home, whereas Joe (who by all accounts was very much “a man’s man”) developed an active social life centred on the largely masculine environments of the local Conservative Club and the Royal British Legion. In recent years he also became very active in the local history society. Clare, who was an excellent needlewoman, made soft toys to sell to raise funds for local worthy causes. It appears that the couple were typical of their generation: they had suffered the privations of the War and they knew the value of thrift. They never had a lot of money to spare and worked hard for what they had, and these were values that were passed on to their two daughters. Although Averil and Deborah were never spoiled, they were brought up in a loving family environment.

[25]In 1974 Joe sold the grocery business, but retained the premises at 44 Birmingham Road and let them to the purchaser of the business. He then went to work for Walsall Borough Council. The career patterns of his and Clare’s two daughters are markedly different, though both can be regarded as high achievers, and the evidence is that Joe was justifiably proud of them. In 1975 Averil reached the age of 18 and left home to go to University. Although she returned home during the holidays, she did not return to live permanently in Aldridge. She paid her parents a sum towards her bed and board when she was home, and financed her University studies herself. Averil has subsequently pursued a successful academic career and now holds the position of Professor of Science Communication at Reading University. She is also a trustee of the Science Museum. Deborah did not follow her sister to University, but left school at 16, initially considering a career in nursing. Her first job was as a clerical assistant in the works surgery of W T Avery & Co, but subsequently she became a clerical assistant in the audit section of Walsall Borough Council. She subsequently obtained a CIPFA qualification in 1986 and an MBA by distance learning in 1996, and now holds the position of Chief Executive of Swanswell charitable trust.

[26]In 1979, at the age of 18, Deborah married her first husband, Patrick Byrne, and moved to her first matrimonial home, in Walsall Wood Road in Aldridge, on the other side of the “village” from her parents. She remained in very close contact with Joe and Clare, travelling to work at Walsall Borough Council with her father and spending frequent evenings at the House (including staying overnight when her husband was working night-shifts). Joe gave her assistance with obtaining a mortgage through the Council, and both parents helped the young couple to set up home. Clare helped to renovate some furniture, and provided soft furnishings; Joe, who was a good handyman, helped out with some of the work that needed to be done on the house itself, as did some of Patrick’s many relatives.

[27]In the same year, Joe was hospitalised with angina and advised to make changes to his lifestyle to reduce the risk of further heart disease. He had to take medication for angina for the rest of his life. In 1985 Joe took early retirement from Walsall Council. He and Clare became reliant upon his modest pension, and the rental income from the Shop. It appears that it was the income from the Shop that enabled them to continue to afford to live in the House. Unfortunately, there came a time not long into Joe’s retirement when the tenant of the Shop defaulted on the rental payments, and in the summer of 1986 Joe took proceedings for possession of the premises. Joe and Clare were understandably concerned about the prospective reduction of their household income following their tenant’s default.

[28]By this time, Deborah and Patrick had moved to another house in Aldridge, a three bedroomed semi-detached property in a pleasanter part of the town nearer to Joe and Clare, which they had purchased in the early 1980s for £21,000. Averil, meanwhile, had married her first husband, George Macdonald, in March 1986. She did not have a lavish wedding ceremony and paid for it herself. Averil’s recollection was that her parents had indicated prior to the wedding that they wished to make her a gift of some money to help her to set up home, but that the precise amount was not made clear to her until after discussions took place between Joe, Clare and their two daughters in the autumn of 1986. By the time of her marriage Averil had already made an offer on a property in Knowle, which cost around £55,000. Her evidence was that her expectation of receiving a gift from her parents caused her to take out a larger mortgage than she otherwise would have done. However, both daughters knew enough to appreciate that Joe and Clare’s frugal savings would not have been enough to enable them to make any substantial gift to Averil.

[29]Averil and George did not move into their new home until August 1986. After Averil moved to Knowle she made a habit of joining her parents for dinner on Saturday evenings. Deborah also visited on those occasions. It was at around this time that Joe and Clare first started to discuss with their daughters what might be done to alleviate the difficult situation which the couple were then experiencing. It was clear that the loss of the income stream from rent of the Shop was causing them to suffer financially. They did not want to move from the House, but were understandably worried that they might have to sell it because they could no longer afford to live there. Joe was particularly concerned that they were already depleting their meagre savings to supplement the income from his pension, and he wanted to have the security of some spare capital to pay for any care that the couple might need in their old age. On the face of it, Joe and Clare only had two options; to let the Shop to another tenant as a going concern, or to sell the Shop (and even possibly the House) and live off the net income produced from the proceeds of sale after taxation. Neither option was particularly palatable.

[30]Renting the Shop to another tenant did not appear to be a viable proposition. Old-fashioned corner shops were already suffering badly from competition from supermarkets, a factor that may have contributed to the default of the previous tenant. A similar (but slightly larger) corner shop was open just down the road, and the main source of trade in the Shop appeared to be the local schoolchildren. Joe was understandably concerned that he might not be able to attract a tenant, and even if he did, there was a real prospect that this tenant might also default. Both Averil and Deborah also said that the previous tenant had let the property fall into disrepair, and that this was a further reason why it would not have been attractive to a new lessee, but it seems to me from all that I heard about him that Joe would not have allowed the property to fall into such a state of disrepair that it would dissuade a new tenant from taking on the lease. He lived opposite the Shop, and despite his health problems he was quite capable of carrying out minor works of property maintenance, decoration and repair, as he did to help out Deborah and Patrick from time to time. If keeping up appearances mattered to Joe, as by all accounts they did, there was no way that he would have allowed the state of his property to cause anyone to make adverse comments about it.

[31]Joe did not want to sell the Shop to a commercial concern because he and Clare would have had no control over the hours that it remained open or over any resulting noise or other anti-social behaviour that would have directly affected them if they continued to live opposite. Of course, the Shop could have been converted back into a dwelling-house (as, in the event, it was) and could have been marketed as such, with any relevant changes in planning permission. That seemed to be the obvious solution. Deborah’s evidence was that her father did not wish to go down that route, because he had racist views and objected to the possibility of an Asian family moving in opposite. Deborah was the only witness who referred to Joe as having such views, and she did so for the first time in the witness box. Although I accept that Deborah may have seen much more of her father than her sister did, particularly in their early adult lives, I am not persuaded that this would have given Deborah any greater insight into his views on such matters. It is remarkable that none of his friends and neighbours who gave evidence was aware that he held such views, if indeed he did. I am prepared, however, to accept that Joe was loath to let the Shop pass into the hands of a stranger and that he shared the local distrust of “outsiders” of any kind. It may well be that Joe expressed his concerns to Deborah in terms that would nowadays be recognized as unacceptable, but that someone of Joe’s background and generation would not have appreciated, let alone intended, to be discriminatory.

[32]Joe and Clare discussed the situation with Averil and Deborah in the course of several Saturday evening meals. What happened after these discussions took place was as follows:a. Deborah sold her previous house for £26,000, and purchased the Shop for £20,000;

b. the £20,000 was paid to Averil. On 5th December 1986 Joe’s then solicitor, David Drury, forwarded to Averil four cheques which the covering letter stated were gifts he had agreed to make out of the proceeds of sale of the shop. These comprised a gift on her marriage of £5,000, exempt gifts for £3,000 and £3,250 for the tax years 1986 and 1987 respectively, and a plain gift for £8,750. This accords with Averil’s evidence that her father had taken tax advice about how the payments should be characterised.

c. Averil used £12,000 of the money to reduce her mortgage.

d. Deborah and Averil each started to make payments of £100 per month to their parents and continued that arrangement regardless of their personal circumstances, until Joe died.

e. Joe made a new Will on 6th January 1987. Its terms remain unknown. Clare did not change her Will.

[33]Deborah and Patrick moved into the Shop, which acquired the new address of 2A Harborough Drive. Patrick jokingly remarked to Deborah’s friend Margaret Yeo at the time that Deborah was spending so much time with her parents that she would move in with them if she could, and that purchasing the property was the next best thing. Over time, the Shop was converted into what Deborah’s friend, Gillian Turner described as a “very desirable residence”. The surplus £6,000 from the sale of the previous property was put towards this work and the young couple also took out a mortgage to help finance it. They had a new kitchen and bathroom put in, and had the house rewired and the walls replastered. Deborah said that there was also some structural work done to the foundations. Professionals were engaged to carry out the major works, but Joe continued to help out with minor jobs around the house.

[34]Deborah’s marriage to Patrick ended in 1988, only two years later. On their divorce, Deborah took over the equity in the property, as well as taking over full responsibility for the repayment of the mortgage taken out to provide finance for the building works. Patrick took the family car, valued at £5,000. At that stage, Deborah’s salary was only around £15,000 but she enhanced her income by taking in lodgers. However by the early 1990s Deborah’s financial fortunes had taken a significant turn for the better. For example, she was able to afford to make a loan of £10,000 to Margaret Yeo to enable Margaret to put down a deposit on a house, which she repaid in September 1991.

[35]From around 1992 onwards, Clare became increasingly confined to the House in consequence of her agoraphobia. At around the same time, as I have already mentioned, her financial situation was improved by the inheritance of around £45,000 from two elderly aunts. Joe and Clare purchased some new furniture and carpeting, but the bulk of the money was placed in the Building Society and the interest was used to supplement their income. Despite this change in their parents’ fortunes, of which they were of course aware, Averil and Deborah each continued to make their regular instalment payments and the amounts remained unchanged.

[36]Averil and George had two daughters, Phoebe (born in 1992) and Thea (born in 1994.) When Thea was born, Averil was not working and the family was looking to move to the south of England, where house prices were higher. In the event, they moved to Wokingham in Berkshire. Joe and Clare agreed to give Averil £4,000, on the understanding that this would be treated as an advance on her share of their estate. According to Averil, the idea came from Clare. Deborah, who was told of the advance and agreed to Averil having the money, said that she was offered a similar amount at the time, but declined, as she did not need it, though she was told that if she ever did need the money she should ask. In 1994 Deborah moved from Aldridge to Knowle to live with a man called Roger Peach. She kept the Shop (now, of course, a desirable dwelling house) and let it to tenants.

[37]Clare died suddenly of a heart attack on 11th June 1995. At the time of her death the remaining capital from the legacy that Clare had received in 1992 remained in the building society on deposit. Under Clare’s Will, made on 3rd May 1971, her entire estate, comprising that capital and her share of the House, passed to her widower, Joe. Her estate was valued for probate purposes at £145,000. Joe gave Deborah £200 which she used to buy a watch. Joe started to drink heavily in the immediate aftermath of his bereavement, often alone but sometimes in the company of Roger, with whom he got on very well. However, he also renewed his acquaintance with Marion, who by now was herself a widow, when Marion attended Clare’s funeral. Joe’s friendship with Marion blossomed, and she became a frequent visitor to the House.

[38]Deborah married Roger in 1996. The couple entered into a pre-nuptial agreement under which they each agreed to forego any claim to each other’s existing properties. In the same year Deborah sold the converted Shop for £110,000. Mrs Evelyn Busby, a long-standing neighbour and former customer of Joe and Clare’s, told the court that Deborah’s decision to sell the property greatly saddened Joe, as he had hoped to keep it in the family and believed that the arrangement he had made with Deborah in 1986 would have achieved this.

[39]Towards the end of 1996 the relationship between Joe and Marion became serious, and in 1997 Marion gave up her rented council accommodation and moved in with Joe. In the three years following Clare’s death Averil and Deborah took Joe on holiday with them; in 1997 they took Marion as well as Joe. Deborah paid their council tax bill in full, even though it had increased when Marion moved in with Joe. Presumably Joe would have had a discount on his council tax for single occupancy after Clare died.

[40]Deborah and Roger did not have a long or happy marriage, and they separated on a number of occasions. For a short time Deborah moved to Wokingham, where Averil and George were still living, then she came back to the Midlands to live in the centre of Birmingham in an apartment near the Canal. She and Roger parted for good in 1998 and were divorced in 1999. Deborah and Joe had a serious disagreement over Joe’s continued association with Roger after the divorce. The split between Deborah and Roger had been deeply acrimonious, and Deborah did not wish her father to continue to see him, particularly after she discovered that Roger had invited Joe to accompany him to a lap-dancing club. Joe, who appears to have resented his daughter trying to interfere with his choice of friends, disregarded her wishes. According to Deborah, Joe reneged on a promise he had made her not to see Roger any more, and she was very hurt by this when she discovered from Marion that they were still socialising. The disagreement, which led to an estrangement between Joe and Deborah, did not stop Deborah from continuing to meet the couple’s council tax and utility bills.

[41]Meanwhile, Averil’s marriage to George had also broken up. In 1998 she moved in with the man who was to become her present husband, Professor Alun Vaughan of Southampton University. They were married in 2000. In 1998, Averil was working part-time, as her children were still young. She was worried about her pension arrangements, as her employers at that time did not allow part-time workers to join the pension scheme. Averil said that Joe reassured her at that time that the half share of the estate which would come to her on his death would be enough for her to replace a pension and purchase an annuity.

[42]Averil continued to live in the South of England (she and Alun now live in Winchester) and because of their various commitments and the distance between their home and Aldridge, visits to Joe and Marion were necessarily less frequent than either Averil or Joe would have wished. They appear to have been confined to special occasions such as Father’s Day or birthdays. Joe was sad that he did not see as much of Phoebe and Thea as he would have liked, though George (who maintained a cordial relationship with Averil’s family) would take them to see Joe during the school holidays en route to visit his sister in Lancaster.

[43]Unfortunately, as he became older Joe also became increasingly deaf, and consequently it was difficult to converse with him on the telephone, particularly as his hearing aid produced feedback. This meant that when either of Joe’s daughters rang, they usually spoke to Marion and had to rely on her to pass on their news and good wishes to Joe. Inevitably this was not the same as speaking to Joe directly.

[44]In January 1999, Joe undertook a financial review with a Birmingham Midshires financial adviser. During the course of that year Joe made two Wills: on 18th February and 10th September. There is no evidence of the terms of the February Will. Before making the September Will, Joe discussed his testamentary intentions, including his wish to make some provision after his death for Marion, with Averil, and independently with Deborah. Joe suggested that he might leave Marion a pecuniary legacy of around £10,000 and give her the right to continue to live in the House for the rest of her life. Averil thought this was not unreasonable and agreed – on her evidence, because Joe reassured her that she and Deborah would still inherit his estate in equal shares. Averil believed that the September 1999 Will would have reflected Joe’s intentions as expressed in those discussions with her.

[45]Deborah confirmed that this was a fair inference to draw. Her evidence was that she actually read that Will in draft form, and was concerned about the quality of the drafting. In particular she said that it made no provision for her sister and herself to gain possession of the House if Marion no longer lived there, and it did not make it clear who was responsible for its maintenance and upkeep while Marion was living in it. She pointed out some of the concerns she had about the drafting to Joe. Deborah, too, said that Joe assured her at around this time that she and Averil would inherit his estate on his death, and she gave him and Marion an assurance in return that she would do her best to enable Marion to continue to live in the House if Joe predeceased Marion. The September 1999 Will was revoked and destroyed, and there was no evidence of its terms on execution. However it seems probable that it was executed in the terms that Joe discussed with his daughters at the time and Deborah saw in draft.

[46]It is not clear precisely when the rift between Deborah and Joe over Roger that led to their estrangement began, though it appears to have been after their discussions prior to the execution of the September 1999 Will. According to Deborah, she and Joe were reconciled in 2000, but the matter plainly still rankles with Deborah even now: her evidence was that it was her knowledge that Roger would be present at Joe’s funeral that caused her to stay away from it.

[47]In 2000 Deborah moved to Rugby, where she continues to live, with her present partner Christopher Bannigan, whose surname she has taken. Rugby is about an hour’s car journey from Aldridge. After Deborah moved in with Christopher in 2000, the couple made substantial changes to their lifestyle, involving the sacrifice of earnings, and moving to a smaller property. Deborah became the family breadwinner when Christopher gave up his job to become a full-time carer for their elder daughter Florence, who was born in 2002. These changes meant that Deborah’s financial fortunes changed again for the worse. Joe told Deborah after the birth of Florence that he had changed his Will to provide that her share of his estate would pass to Florence in the event that Deborah predeceased him. If Joe did make such a change at that time, it would have been by way of codicil to the September 1999 Will, since Joe’s solicitors had no record of any new Will being executed by Joe in early 2002.

[48]On 4th November 2002 Joe and Marion married. Averil and Deborah were not invited to the wedding. Joe rang Averil personally to tell her that he had got married and said that the couple had decided to keep things simple, with no family or friends present. However, she and Deborah later discovered when they saw the wedding photographs that both Marion’s sons had attended. At around the time of the wedding, Joe told one of his friends and neighbours, Robert Minton (who lived opposite, at No.2 Harborough Drive) that his daughters did not want him to get married. In my judgment, despite their denials, that is probably a true evaluation of their feelings. However much they may have liked and welcomed Marion as a companion for their father, they would have been well aware that as his wife her legal status would change, and they must have been concerned about the possible impact that this would have had on their inheritance prospects. Gillian Turner recollected the sisters having a discussion in her presence on the subject of their inheritance at around this time. If, however diplomatically, they raised their concerns about this with Joe when he indicated to them that he was considering getting married again, this may well have proved to be the final straw so far as Joe was concerned. At that point, he had little contact with either of them.

[49]On 17th December 2002, Joe made a Will leaving his entire estate to Marion, and providing for a substitutionary gift in the event that she predeceased him to his three grandchildren then living (Phoebe, Thea, and Florence), and two step-grandchildren. Marion executed a Will in exactly the same terms with her name and Joe’s transposed: reference to this is made in a letter from Joe’s solicitors David Drury & Co to the Claimants’ solicitors dated 13th December 2006. Accordingly Marion’s Will bypassed her own two sons in favour of her grandchildren and step-grandchildren if Joe died first – but Marion appears to have had little or nothing of her own to leave to her blood relations. The making of Joe’s Will was not discussed with either of Joe’s daughters, but Joe did discuss it with his stepson, Anthony Keates, whom he wished to act as his executor. Joe expressed the view to Anthony that his daughters had “had their share” and that they had had already been catered for. He said that the House was to go to Marion and that she could sell it if need be, but that what was left was to go to the grandchildren. I regarded Anthony as a frank, straightforward and reliable witness who was trying very hard to maintain neutrality in this unfortunate family dispute, and I accept his evidence without reservation, including his evidence about his conversations with Joe. That evidence was consistent with Joe’s behaviour at the time.

[50]Certainly from the time of his marriage to Marion and possibly even before then, Joe appears to have been in the habit of complaining that his daughters only visited him when they wanted something from him. That may have been an unfair view, particularly as in the last few years of his life, as he grew more frail and dependent on her care, Marion’s understandable protectiveness towards Joe often caused her to cancel planned visits, not only from Averil and Deborah but from her own son Anthony and his family, and from Joe’s former son-in-law George. It also seems apparent that on occasion Marion, probably because of her own age and failing health, felt unable to cope with visitors and used Joe’s health as an excuse to put them off, even if Joe himself would have been well enough to receive visitors and would have welcomed a visit. Joe may well have been unaware that Marion was actively dissuading visits from his family; Averil and Deborah were sensitive enough not to blame Marion when they spoke to Joe. Joe’s daughters also had genuine difficulties in visiting as often as Joe may have wished them to, but Joe may not have fully understood those difficulties, and to the extent that he did, he clearly felt that Averil and Deborah could and should have made more efforts to overcome them.

[51]Certainly from the time that she moved in with Alun, and probably even from the time when Averil first moved down to the South of England, her visits to see her father and Marion were confined to special occasions for the reasons already described. Averil very fairly conceded that her relationship with her father changed, but said that it did not deteriorate. Deborah said that after her move to Rugby, even despite the difficulties of looking after one and then two small children, she still made the effort to visit Joe and Marion at least once a month, taking care not to call on the same occasions when Averil and her family were visiting, though she did not visit if one of the children was ill. However, Joe and Marion’s neighbours had the impression that Deborah’s visits were less frequent than that, and the evidence of her partner, Christopher, is that from around the time of Florence’s birth in 2002 Deborah had some difficulty in arranging to visit her father and that it was proving difficult for her to maintain a close level of contact with him.

[52]Christopher, who rarely accompanied Deborah on these visits, recollected one occasion when he and Deborah turned up unexpectedly and met Joe and Marion on the front drive of the House just as they were about to go out. Joe was pleased to see them, but he scolded Deborah as though she were a little girl for her lack of contact and visits. Deborah took this telling-off meekly, and did not try to furnish any explanation or excuse. It speaks volumes about the strength of Joe’s personality and about the nature of their relationship that he was able to produce that kind of reaction in Deborah, who did not appear to me to be lacking in backbone. I can understand why she may not have wanted to sow the seeds of discord by saying anything that might have been regarded as a criticism of Marion, but a tacit acceptance of her father’s criticism of her, without offering any excuse, (which would have fostered his impression that she was neglecting him rather than allaying his concerns) is a rather different matter. It suggests to me that Deborah was acknowledging that Joe had the right to be cross with her. Christopher was plainly taken by surprise by Deborah’s reaction, which is no doubt why he recollected the incident so clearly.

[53]Although there are, on the face of it, reasonable explanations for the infrequency of his daughters’ visits which have nothing to do with any cooling off of the relationship between them and Joe, or any lack of concern on their part for his welfare, Joe nevertheless felt neglected by them and was upset enough to make remarks such as “they have had enough off me” or “they only visit me when they want something from me” to various friends and neighbours. It is apparent that Joe had already formed that view by the time he married Marion, since Averil was an infrequent visitor and his relationship with Deborah had already come under considerable strain (indeed, as I have already mentioned, there had been a period following her divorce from Roger when Joe did not see her at all). By then, Joe’s life was revolving around Marion, and his daughters had become peripheral to it. In my judgment, these sentiments had as much an influence on the terms of his penultimate and final Wills as his expressed desire to make proper provision for Marion after his death. Apart from the incident recalled by Christopher, however, Joe does not appear to have raised the matter with his daughters themselves.

[54]In 2004, Deborah’s second daughter Pandora was born. Deborah’s evidence was that Joe asked her to write down Pandora’s full name so that he could amend his Will to include her as a beneficiary alongside Florence in the event that Deborah were to predecease him. After the birth of Pandora, Deborah was experiencing some financial difficulties. When Christopher gave up his job, she had assumed the responsibility for Christopher’s financial obligations as well as her own, including his maintenance payments to his former wife and their children. Now she had to rely on state maternity pay. Deborah asked Joe for an advance of £4,000 on the basis that this was the same amount that he and Clare had given to Averil in 1994, bearing in mind that she had been told at the time of that advance that if she ever needed the money she should ask for it. Joe refused, ostensibly on the basis that he and Marion needed the money, whilst assuring Deborah, she said, that her position and Averil’s would be balanced out by making an adjustment to their inheritance on his death for the advance to Averil.

[55]Towards the end of December 2004, Joe was involved in a minor boundary dispute when his former next-door neighbours sold their house. Deborah said that Joe was so upset by this that he increased his consumption of alcohol, which appears to have been his chosen mechanism for dealing with stress. Deborah said Joe told her that he had to resolve the dispute in order to preserve the value of his estate, reiterating his earlier promise to herself and Averil that he would leave it to them in equal shares. The boundary dispute appears to have been resolved, but I heard no evidence about when that was. Co-incidentally the other neighbouring property, 5 Harborough Drive, was sold at around the same time. The couple who moved in to 5 Harborough Drive in January 2005, Mr and Mrs Keith Rollason (both of whom gave evidence) rapidly developed a good neighbourly relationship with Joe and Marion, and called round to see them around two or three times a week to keep an eye on them and to give them a helping hand with such chores as mowing the lawn and doing a few odd jobs around the home.

[56]On 31st December 2004 Joe made what transpired to be his last Will, leaving his entire estate to Marion and providing for a substitutionary gift in the event that she predeceased him to his four grandchildren and two step-grandchildren in equal shares. The letter from David Drury & Co of 13th December 2006, to which I have already referred, suggests that only Joe’s Will was amended on this occasion, to take account of the birth of Pandora. I have no evidence as to the current provisions of Marion’s Will, which are strictly speaking irrelevant to anything I have to decide. If it has remained in the same form as the Will that she executed in 2002, all the grandchildren and step-grandchildren except Pandora would inherit Marion’s estate, including anything left over from her inheritance from Joe. However there is nothing to stop Marion from changing her Will, and for all I know she may have done so.

[57]At some point Deborah asked her father if she could reduce the amounts she was paying, or stop paying one of the utility bills, since the utility bills and council tax were now costing her more than £100 per month. It appears that this request met with a frosty reception from Joe. This incident appears to have taken place in the early part of 2005, since it fits with the evidence of Mr Rollason that he called to see Joe and Marion one day and found them in the midst of a discussion about Deborah, into which Mr Rollason found himself, to his embarrassment, being drawn. Mr Rollason had called on Joe to see if there was anything he could do for him and Marion, and was invited into the living room. Joe and Marion were discussing something, and Joe was obviously upset. Marion said that Deborah could not afford to pay Joe some money that she owed him, and Mr Rollason asked why. Joe blamed it on what he termed her “extravagant lifestyle”. He remarked that “they have had enough off me”, a remark he made to Mr Rollason about his daughters on several occasions in the course of their short acquaintance.

[58]Although Joe’s health had already started to deteriorate in 2004, when he had a series of minor strokes, a major decline followed the first in a series of falls at home in May 2005 which required Joe to be admitted to hospital. Neither Deborah nor Averil were told about this fall at the time. Anthony described it as a turning point. The burden of looking after Joe after his discharge from hospital fell on Marion’s shoulders, and it took an increasing toll on her own health. After the fall, Joe needed assistance in dressing and his mobility was very limited. Anthony described how his mother had to take Joe to the toilet. Marion even had to carry Joe upstairs because he wanted to sleep there. On at least one occasion later that year she was unable to manage to support him, and he fell and banged his head on the bed. Marion’s own infirmity, and the fact that she was unable to leave Joe alone for any lengthy period, meant that she had to take taxis in order to go to and from the shops.

[59]When Joe was admitted to hospital again in June 2005, this time after suffering a chest infection, Averil only found out about it through her ex-husband George, who had been contacted by Marion. Averil immediately contacted Deborah by e-mail; Deborah said in her e-mail response that Christopher had rung Marion that morning and she had told him about Joe. Deborah also said that she had been off work for a week - also with a chest infection - and was not expecting to get better for another week. That explains why Deborah did not go to visit Joe in hospital on that occasion. Averil got in touch with the Patient Advice and Liaison Service (“PALS”) officers at the hospital by e-mail and explained how difficult it was for her to visit because of the distance involved. She attached a note to pass on to her father, and asked how she could find out more about his medical condition. Thereafter she used the PALS service to communicate with Joe and to let him know that she would be coming to take him out for a meal on Fathers’ Day. Joe appeared to be cheerful, and the PALS officer reported back that he had been pleased to hear from Averil. By this time, it seems apparent that Averil did not feel she could rely on Marion to pass on her messages to her father or to let her know how he was faring.

[60]Joe was released from hospital in time for Fathers’ Day. When Averil and her family set off on the journey to Aldridge on Fathers’ Day Marion rang Averil’s mobile to try and cancel the visit, on the grounds that Joe was unwell, but they were already so close to Aldridge that they decided to drop in and see Joe, if only for a short time. In the event they stayed for a few hours and helped to weed the garden. Averil discussed with her father the possibility of purchasing an electric vehicle for him to use. Averil also visited her father on his birthday in September and on her own birthday in October 2005.

[61]Joe was admitted to hospital again in November 2005. Averil once again got in touch with the PALS officers. Her initial e-mail recorded that Marion was having “terrible trouble dealing with things” since her father’s condition had deteriorated and there was talk of his time in hospital being a way of giving Marion a break. Averil asked for advice on how to find a more satisfactory means of providing care for her father and for Marion. She said that Joe was reasonably well off (though he would not admit it) so could “easily afford” to pay for care of some sort. Alternatively, she said, “we could buy a more suitable house or bungalow if that would be a sensible way forward”, but she did not wish to waste money buying a new place only to find that a care home was the only suitable place for him. She added “both my sister and I are concerned but feel unable to help in any way as we both live so far away”. In a subsequent e-mail to the PALs officer, Averil enclosed a letter for Joe which urged him to think about moving somewhere smaller. Averil said in her covering e-mail that she was keen that Joe thought seriously about moving to a smaller house and asked the PALs officer to bring it up in conversation and see what Joe’s reaction was. She explained that she could not speak to Joe directly because he could not hear conversations on the phone. However, Joe had been discharged by the time the PALS officer went to see him, and it is unclear whether Joe ever received the letter.

[62]There is a dispute about whether Averil ever asked Joe for any more money after the advance of £4,000 in 1994. Averil denies that she did. However Joe undoubtedly told his good friend and long-standing neighbour Robert Minton that Averil had asked him for money to take her children through university. It is unlikely that Joe would tell a lie to Mr Minton about something like that; there was no reason for him to do so. Mr Minton was unable to recollect exactly when that conversation took place, though in their witness statements both he and his wife suggested it was in or around 2004. When he was asked about it in cross-examination, Mr Minton was positive in his recollection that Joe had spoken in terms that suggested to him that Joe had seen Averil in person shortly before he told Mr Minton about their conversation, and the request had been made to Joe directly, not via Marion. Mr Minton was mystified as to why Averil should have made such an approach to her father, given that both she and her former husband George appeared to be in good jobs. He said that Joe shared his mystification and was “disappointed” by the approach. It is also undisputed that Marion rang Deborah more than once in the Spring of 2006 and told her that Averil had asked her father for £36,000 to pay for her daughters’ university education. Averil’s evidence (with which Deborah agreed) was that Deborah revealed these conversations with Marion to Averil sometime shortly after they happened, and that Averil denied making any such request. She repeated that denial in her witness statements and in the witness box.

[63]In cross-examination Averil pointed out that even in 2006, her two daughters were still some years away from going to University, and said that she had been saving up over several years to pay for their tuition fees. This made it unlikely that she would have made such an approach to her father: somehow, therefore, Marion must have made a mistake and relayed what she perceived to be a request by Averil for money to Joe, who then spoke about the matter with Mr Minton. Averil said that in 2004, she had been attempting to increase the maintenance payments for the girls from their father George, and had involved the Child Support Agency; this had resulted in an agreement by George to set aside the money he would have paid to Averil, so that it could be used to pay for their university education. She recalled discussing these matters with Marion at the time, and surmised that this may have been a possible cause of confusion.

[64]However, that theory does not fit with the inherent probabilities, given the evidence of Robert Minton, which I accept as truthful, and the accepted fact that Marion contacted Deborah in the Spring of 2006 to tell her about Averil’s request and Deborah then rang up Averil. If Averil is right, either Joe and Marion were both very seriously mistaken, or Marion was making up stories about her to Joe and to Deborah. I do not believe that Marion was making mischief; even if Averil’s relationship with her stepmother was less amicable than she would have me believe, there was no reason for Marion to try and drive a wedge between Averil and Deborah, and it is a very odd story for Marion to have chosen to make up, particularly involving such a specific figure. Mr Minton had a firm recollection of the essential aspects of his conversation with Joe, and his impression from the conversation was that the approach had been made to Joe directly. That makes sense. If Averil wanted money from Joe, Marion was the last person to whom she would have spoken about it. She would have approached Joe. Joe would have been the source of Marion’s information unless she was present at the time of the request (which, given the nature of the conversation, seems unlikely). The probabilities are that Marion would have got in touch with Deborah to express her concern about the approach to Joe very shortly after it occurred and he told her about it. She would not have waited for two years. Whatever triggered Marion’s initial call to Deborah must have occurred shortly before the call itself, and therefore Mr Minton and Mrs Minton, (who was not a direct party to the conversation between her husband and Joe) must be mistaken about the incident taking place in 2004. It is highly unlikely that Marion would have so seriously misunderstood what Averil had been telling her about her dealings with George in 2004, as to complain in 2006 to Deborah about an alleged request by Averil to Joe for a large sum of money, and a specific figure at that. Averil did visit Joe on more than one occasion in the Spring of 2006.

[65]In my judgment the objective evidence and the inherent probabilities point firmly towards a conversation taking place between Joe and Averil on one of those occasions, in which the figure of £36,000 was mentioned in the context of a reference to the future cost of putting Averil’s daughters through university. Averil may have been telling the truth when she denied that she asked her father for money, but if so, it was the literal truth. The most likely explanation of what happened is that Averil tried to prompt Joe to make a substantial gift to his two older grandchildren, as a safeguard against the very real possibility that Marion would inherit the estate, or at least a substantial part of it. She probably dropped a very heavy hint to Joe, by raising the subject of the expense of higher education, the need for forward planning, and so forth, in the hope that Joe might offer to give the girls some financial assistance. No doubt the figure of £36,000 came into the conversation at some point. Perhaps this was because, together with the £4,000 already advanced in 1994 it represented a rough and ready calculation of what Averil believed to be her fair share of the remaining estate after taking account of what Marion might expect to receive. Joe understood exactly what Averil was driving at, but failed to take the bait. When Deborah found out about it, of course Averil denied it, because it would have looked as if she was trying to steal a march on her sister, even though she probably was not.

[66]That raises the question why Averil should have made such an approach to Joe at that time, if Averil truly believed that she was going to inherit half of Joe’s estate, come what may, and had no reason to suppose that Joe had changed his mind. If that was her belief, she had no need to approach Joe in this way, a point that she herself made. However the last Will made by Joe of which she was aware had been made back in September 1999, three years before Joe remarried - and that was the last occasion on which Averil had received any direct assurances from Joe as to his intentions regarding the disposition of the estate. Averil may not have known that a Will is automatically revoked on marriage, but she must have known in general terms that Marion’s status as Joe’s wife would have given her a claim to at least some share of his estate, probably at least half. The possibility that Joe may have made another Will must have occurred to Averil, not least because she was aware that Joe had said shortly after Florence was born in 2002 that he had changed his Will to add Florence as a beneficiary in case Deborah predeceased him. Averil was also no doubt concerned by the prospect of some or all of her parents’ estate being used up on Marion’s care if Marion had to go into a home or sheltered accommodation. Averil had no knowledge at the time that the fruits of the pecuniary legacies to her mother had all been used up and she probably believed that Joe had sufficient spare capital to make a substantial monetary gift. These are all very good reasons for making an approach to Joe of the type I have found Averil did make. I do not criticize Averil for what she did – she was only trying to safeguard the interests of her children – but the fact that she did it, and the fact she denied it, may be significant.

[67]Joe was admitted to hospital after yet another fall in the Spring of 2006. Marion went to stay with Anthony, who rang up Deborah to discuss the situation because he was very concerned that Marion could no longer cope and that something needed to be done. Anthony feared that Marion and Joe would both die imminently if their position was not addressed as a matter of urgency. Unfortunately, both Deborah and Christopher also became seriously ill at around that time, in Deborah’s case with bacterial pneumonia. Deborah became ill just before Easter and was forced to take eight weeks off work; Christopher was admitted twice to hospital and underwent a pleurectomy on 5th May. Deborah was therefore not in a position to help in making arrangements for better care for the elderly couple, through no fault of her own. It does appear that Social Services were helping out quite a lot by then, because Averil contacted them after Joe’s death to thank them for what they had done for her father. Nevertheless, Marion continued to be her husband’s primary carer. She did her very best to look after him despite her own failing health.

[68]Joe died on 23rd May 2006 after a final admission to hospital. Averil contacted the PALS officers and visited Joe on 17th May, but he was asleep and did not know that she was there. On the day of Joe’s death, which coincidentally was the day that she returned to work after her eight week absence, Deborah met Marion at the hospital and took her home afterwards. She also went next door to thank the Rollasons for their kindness to her father before returning to Rugby. Anthony arrived on the following day. He saw to the arrangements for the funeral and took care of legal matters for his mother. Averil and her daughters attended Joe’s funeral; Deborah did not attend. Her explanation, as I have already mentioned, was that she knew that her ex-husband Roger would be there and she wished to avoid any confrontation with him. However she did not contact Marion or Anthony, explain how she felt, and ask that Roger be asked not to attend. Instead she marked the occasion privately at home.

[69]After the funeral, Averil asked Anthony for permission to take home a few mementos of her mother from the House. Anthony suggested that perhaps Averil should wait until a later occasion, but Averil said that it was unlikely that she would return to the House again, and Anthony therefore agreed to her request. Averil removed some personal items belonging to Clare such as letters and photographs from the garage, and from the sideboard in the drawing room. At one point, Anthony gave her some help. Averil’s behaviour at the time appeared insensitive to some of the friends and neighbours who went back to the House after the funeral, but they were unaware of her conversation with Anthony and of the nature of the items she was taking. In the light of the distance that Averil had to travel to Aldridge from her home, and the fear that mementos of her late mother might well be lost or destroyed in the course of any clearing out of Joe’s belongings following the funeral, there was nothing unreasonable about Averil’s wish to take them with her. Yet it is understandable why guests who were not aware of what she was doing and why might have drawn the wrong conclusions, or thought it was bad form. If Averil had been less absorbed in her own grief for her parents, she might have appreciated that her actions were likely to upset Marion, and she might have made different arrangements with Anthony. However the insinuations that Averil may have removed anything pertaining to this case from the House, or that she was deliberately riding roughshod over Marion’s feelings are, in my view, completely unjustified.

[70]Probate of Joe’s estate was granted to Marion on 18th August 2006, with the net value of the estate sworn to be not in excess of £231,000. As I have already stated, the only asset of any real capital value is the House. Joe liked to foster an impression of relative affluence so far as his friends and neighbours were concerned and even, it would appear, to Marion. Despite this, the evidence suggests that his and Marion’s lifestyle was no more extravagant than his life with Clare had been, though they did go out more often. When Joe was still enjoying relatively good health, they enjoyed modest holidays, some of which were spent abroad, but there were no obvious extravagances. Nevertheless, by the time of Joe’s death there was nothing left of the money inherited by Clare. THE ALLEGED ASSURANCES

[71]The Claimants’ case is that the purchase of the Shop was at market value and not at a discount; that the payment to Averil of £20,000 was intended to put her on an equal footing with Deborah, and to equate with assistance of a non-financial nature that their parents had previously given to Deborah, and that these events were wholly unconnected with each other and with the agreement to pay Joe and Clare the £200 per month. They claim that that agreement was made solely on the basis of an express and repeated assurance by both Joe and Clare that they would organize matters in such a way that when they died, their estate would be left to their two daughters in equal shares. That assurance was repeated by Joe on a number of subsequent occasions to which I have already referred in the factual narrative above.

[72]I must evaluate Averil and Deborah’s evidence of the initial assurance given by their parents in 1986, and the subsequent assurances given by Joe, against all the objective evidence, including the way in which the main protagonists behaved at the time and thereafter. I must also take into account the inherent probabilities, before finally considering questions of credibility and the manner in which the evidence was given in the witness box. I bear in mind, whilst doing so, that the evidence of even the most honest witness may be coloured by his or her re-interpretation of history in the light of subsequent events and the passage of time, or even simply in consequence of wishful thinking.

[73]I must start by considering what happened in the autumn of 1986, since that is of critical importance. It is what triggered the monthly payments that are claimed to have been detrimental reliance on the various repeated assurances. There is no documentary record of the arrangement made between the Claimants and their parents (a not unusual situation in cases of this kind) and no evidence that Clare said anything about it to anyone before she died. I will deal with what Joe said about the matter to various people a little later in this judgment, after I have considered the inherent probabilities and the undisputed factual evidence. The inherent probabilities and the objective facts

[74]In 1986, both the parents and their daughters would have operated on the natural assumption that when Joe and Clare died, the estate of the survivor would pass to their daughters in equal shares, since Joe and Clare had always treated their two daughters equally, and there was nobody else who was likely to inherit. That assumption was so obvious that it did not need to be stated. It was therefore inherently unlikely that Joe or Clare would feel the need to give their daughters any specific assurance about it, or that Averil and Deborah would require their parents to give them such an assurance in order to prompt them to help their parents out financially.

[75]At the time of the discussions in 1986, anyone considering what Joe and Clare’s estate was likely to be, if nothing else changed, would naturally have regarded it as comprising the two properties, the Shop and the House, since they owned very little else, and those were the only items of substantial value that they possessed. If it was envisaged that one of those properties had to be sold, and the proceeds expended, then any reference to the “estate” of the surviving parent in the context of those discussions, or a reference to what the daughters would expect to inherit, would naturally and reasonably be understood as a reference to the remaining property. Thus any otherwise clear and unequivocal promise or assurance given about Joe and Clare’s “estate” or their daughters’ “inheritance” could reasonably be regarded, in this context, and at that particular time, as a specific reference to the House.

[76]Joe and Clare needed a means of supplementing their existing income to allow them to continue living in the House. One solution would be to sell the Shop, and try to live off the net income produced by investment of the proceeds of sale. If they did not relish the prospect of selling the Shop as a business concern they could have sold it for residential use. There was no evidence that Joe and Clare would have had to sell both the Shop and the House in 1986 in order to acquire enough money to live on. However, if they sold the Shop, it would have been difficult to find a reliable source of steady income in the long term – purchasing an annuity may not have been a viable option given Joe’s medical condition, for example. Although in the mid 1980s interest rates on deposits were fairly high, the tax deducted at source would have reduced the yield available to an investor, and savings rates can fluctuate considerably over time. Joe and Clare could and would not have gambled their capital in order to produce a higher income (as is demonstrated by the way in which the legacies to Clare were invested in 1992). Therefore, selling the Shop would not necessarily produce enough regular income to give Joe and Clare the assurance that they would be able to stay in the House for the rest of their lives. It would be a short-term solution.

[77]Selling the Shop would also mean that neither Deborah nor Averil could inherit it, as no doubt both Joe and Clare would have wished. There was a real chance in 1986 that whatever course Joe and Clare took to address their current financial difficulties, if they realised the value of one or both of their properties, the amount of their estate would be severely depleted by the time that the survivor died, especially if they had to dip into their capital. Accordingly if a scheme could be devised which kept the Shop within the family, provided a sufficient income stream for Joe and Clare to enable them to keep living in the House, was as tax efficient as possible, and gave each of their daughters an advance on their inheritance, it would be extremely attractive to all concerned.

[79]The payments commenced at around the same time as the Shop was sold to Deborah for £20,000 and the equivalent sum was paid over to Averil. It is highly improbable, given the background to the sale of the Shop that I have already described, that those events were wholly unconnected with each other, as both Averil and Deborah suggested they were. Joe and Clare could not have afforded to pay Averil £20,000 or anything like that amount from their own meagre savings, as Averil would have been well aware even if she was not privy to the exact details of their financial situation at the time. £20,000 was also an extravagantly generous gift if all it was intended to do was to mark the occasion of Averil’s marriage and make up for the fact that she, unlike Deborah, had had a low-key wedding which she had financed personally. To put that figure in perspective, Deborah’s evidence was that the House was worth about £18,500 to £19,000 at that time. Joe and Clare were not given to lavish gestures, and expected their daughters to work for what they achieved in the same way as they had done. Moreover, by giving Averil the whole of the sale proceeds of the Shop, her parents would be nowhere nearer solving the problem that the family was addressing, and that would have been obvious to all of them.

[80]I accept that the payment of £20,000 to Averil from the proceeds of sale of the Shop was designed to produce a situation where Deborah and Averil were treated equally, since that is the way in which Joe and Clare had always treated their daughters. However it is highly improbable that Joe and Clare would have put a value of £20,000 on the various services they had previously rendered to Deborah, such as providing her with regular meals when Patrick was away, helping her with odd jobs around the house and with the furnishings and fixtures, even taking into account their outlay on her wedding. These services were no more than any loving parents would have performed for their daughter, and no parents would try to place a monetary value on them.

[81]In my judgment it is no coincidence that the £20,000 given to Averil exactly corresponded with the price that Joe accepted for the Shop from Deborah. Joe must have fixed that price on the basis that he (and, to the extent that she was consulted about it, Clare) considered that the value that Deborah was getting out of the transfer of that property, possibly after also taking into account the money her parents had expended on her wedding, was the equivalent of the £20,000 that they then handed over to Averil. In other words, Joe took the market value of the Shop (or the market value plus the cost of Deborah’s wedding) to be £40,000 and discounted it by 50%. It may be that Averil was not involved in that aspect of the matter and did not particularly concern herself with how her parents reached the view that Deborah had received benefits that were the equivalent of £20,000, but Deborah must have known.

[82]No formal valuations of the Shop were carried out at the time when Deborah purchased it, though Deborah said that she and Joe made inquiries. In her third witness statement, Deborah produced some calculations based on current market values of 13 detached three bedroom houses in the same area of the West Midlands (converted into equivalent values in 1986) that were designed to establish that £20,000 was a fair market value for the Shop. Her own previous house, which was semi-detached, was sold for £26,000, but Deborah said it was in better condition. However, the comparators used by Deborah were not true comparators, since the Shop was considerably larger than a typical three bedroom detached property when one took into account the parts of it that had been used for the business. There was significant additional space on the ground floor. Deborah’s evidence was also premised on the Shop being in such a dilapidated state as to have depressed its market value by a significant amount. Whilst I am prepared to accept that some work needed to be done to convert the Shop into a dwelling house, and that Deborah did spend quite a lot of money on the property over a number of years after she acquired it, I have already made the finding that Joe would not have allowed it to become as run down as Deborah suggested. I do not consider that all the work carried out by Deborah was necessary to put the property into habitable or marketable condition.

[83]On Deborah’s own evidence, based on a website known as Zoopla, the current value of 2A Harborough Drive is £230,000, which equates to a value in 1986 of £44,000 assuming that the property was in good condition and already converted to a house. Thus £40,000 would not be outside the parameters of a reasonable asking price even in its unconverted state (and even without bringing the cost of Deborah’s wedding into the equation). The sale price of £20,000 is exactly half that amount. In any event it does not matter whether the value placed by Joe on the Shop was reasonable or not. What matters is that Joe considered that the benefit that Deborah was getting from her parents at that time, (solely or largely comprising the value of the Shop in excess of what she agreed to pay for it) was £20,000, as I find that he did. Joe and Clare were trying to achieve broadly the same result as if they had sold the Shop to a stranger and then divided the proceeds of sale between their daughters in equal shares, subject to possibly making an adjustment in Averil’s favour for the financial outlay on Deborah’s wedding.

[84]The idea that Joe equated the value of the Shop to Deborah, over and above what she paid him for it, with the £20,000 handed over to Averil, is consistent with what he said to various friends and neighbours at the time of the sale and thereafter. Mrs Busby, who has lived in Harborough Drive since 1961, indicated that Joe made no secret in the neighbourhood of the fact when he sold the Shop that he had “given the property to Debbie and given a similar amount to Averil”. Deborah herself recalled overhearing her father telling another neighbour, Alan Shaw, in September 1987 that he had “given” her the Shop, and subsequently complaining to Clare that this was untruthful because Joe knew full well that Deborah had paid him £20,000 for it. Deborah did not intervene to tell Mr Shaw the truth because she regarded this boast as part of an attempt by Joe to maintain a façade of relative affluence, so as to keep up his status in the Aldridge community. She said that she and Clare discussed the incident with Joe, who apologised and restated the arrangement they had made.

[85]These were not the only occasions on which Joe linked the transfer of the Shop to Deborah and the payment of the sale proceeds to Averil and described this as creating an equality of treatment between them. For example, many years later, when discussing his 2002 Will with Anthony, Joe said that he had sold the shop to Deborah at a greatly reduced value and that he had “virtually given” it to her. Joe was exaggerating when he said that he had “given” or “virtually given” the Shop to Deborah, but in my judgment he was telling the truth when he said he had transferred it to her at a heavily discounted price and given the equivalent in money to Averil so as to ensure that they were treated equally.

[86]By disposing of the Shop in this way, Joe and Clare were depriving themselves of one of their two main assets, but it was staying in the family because Deborah had acquired it. It is also highly likely that the parties to the family discussions regarded the receipt of the Shop and the £20,000 as an advance to the two daughters of half what they would have expected to inherit from their parents in due course. Deborah, in effect, bought out her sister’s share in that family asset for £20,000. This fits with Joe’s remarks to Anthony in 2002 that his daughters had “had their share” and that they had “already been catered for”, and it also explains the magnitude of the sums that were being given away by a retired couple who were in straitened financial circumstances. It also fits with Joe and Clare treating the £4,000 that they gave to Averil in 1994 as an advance on her inheritance – the idea probably occurred to Clare because she and Joe had already done something similar. If that is right, then the subject of Averil’s and Deborah’s expected inheritance must have come up in the family discussions in 1986, but what they could expect to receive in the future must have been at most a secondary consideration to what they were getting then and there.

[87]The next question is whether the disposal of the Shop and the balancing payment to Averil were connected with the agreement by Deborah and Averil that they would each pay £100 per month to their parents. Looking at the inherent probabilities there had to be a connection, because by disposing of the Shop in the way they did, Joe and Clare were depriving themselves of the only potential source of additional income they had, short of selling the House itself and moving somewhere smaller, which they did not want to do. Indeed, given that the Shop was the more valuable of Joe and Clare’s two capital assets, it made no sense to have disposed of it for £20,000 to anyone, even Deborah. Even in 1986 an investment of only £20,000 is unlikely to have provided Joe and Clare with a net income of £200 per month. Selling the Shop for £20,000 would therefore probably have defeated the purpose of disposing of it in the first place unless there was something more involved, all the more so if the whole of that £20,000 was then to be given to Averil. Joe and Clare could only afford to treat their daughters equally if they gave Averil all the money from the sale, but if they gave Averil all the money they would actually be worse off than where they were when they still had the Shop – unless they got something back from their daughters in return.

[88]It follows, therefore, that the arrangement made by Deborah and Averil to pay their parents £100 per month each must have been an essential and integral part of the arrangement by which Deborah and Averil came to receive the Shop and £20,000 respectively. There was no evidence as to where the figure of £100 came from; whether it bore any relation to the previous rental income that had dried up, whether it was what Joe and Clare worked out they actually needed, or whether it was surplus to their immediate requirements. Deborah’s share catered for Joe and Clare’s electricity, gas, water, and council tax bills, and Averil’s contribution may well have been worked out simply on the basis that it should be exactly the same amount as Deborah was to pay, maintaining equality between them. Whatever the basis for calculating the payments, they had to be a substitute for the income that their parents might otherwise have derived from the proceeds of sale of the Shop on the open market. I am not persuaded that the Shop was an unattractive proposition to a purchaser (particularly to someone like a developer) even though I am prepared to accept that Joe would not have wished to sell it to such a person unless he had no other choice. If the Shop was estimated by Joe to be worth around £40,000, the £2,400 per annum received from Deborah and Averil works out at a return of 6%, which is quite a reasonable rate, particularly if it was not declared as unearned income for tax purposes.

[89]Deborah’s evidence was that it was her idea that she would buy the Shop to help her parents out, because it was something of a millstone round their necks, and that she did not really want to move from her current home. The problem with that is that Deborah would have known that her purchase of the Shop was not going to help her parents out at all if they were going to use the proceeds of sale (or even a significant part of them) to make a gift to Averil. Whosever idea it was, the sale of the Shop to Deborah only made sense if something or someone also produced a reliable income stream for Joe and Clare.

[90]What Joe and Clare were doing was akin to purchasing a fixed rate annuity from their daughters for £40,000 in money or money’s worth. Averil described the 1986 arrangement in her oral evidence as an early form of equity release scheme, and although it was her evidence that the equity being released was the equity in the House and not in the Shop, the concept fits equally well with the early release of the value of the Shop in equal shares to her and Deborah. It was unlikely that anyone who was party to the family discussions would have expected either parent to survive for another 20 years, given the state of their health and the fact that Joe had already been forced to take early retirement because of his angina. I am sure that neither Deborah nor Averil envisaged that they would end up paying out more than the £20,000 they had each received, let alone that the instalments would be paid for as long as another 20 years, but that was the risk that they took. From their perspective having to expend the relatively small amount of £100 per month for a few years was a small price to pay for getting £20,000 or the equivalent in money’s worth now.

[91]Taking all these matters into consideration, on the face of it there was no particular reason for Averil and Deborah’s parents to have made any specific promise or assurance to them that they would receive the balance of their inheritance (namely, at that stage, an equal share in the value of the House) if they continued to make the regular payments during the remainder of their parents’ lifetimes. There was no link between their future inheritance prospects and the income required in order to solve their parents’ immediate financial problems, and no need to create such a link. The £200 per month was a straight substitute for the income that otherwise had to be derived one way or another from the Shop; staying in the House remained a constant. Averil and Deborah had no reason to suppose that their parents would not leave them what remained of their estate. The advance of half the value of the estate to them would in itself reinforce their legitimate expectations regarding the balance. Accordingly they did not need to be given any specific assurance about their future inheritance prospects to prompt them each to agree to pay the £100 per month. Indeed it makes little sense for Joe and Clare to have made the isolated promise, in this context, “if you provide us with an income we will make sure we leave you the House”.

[92]A consideration of what would happen to the House when their parents died is also unlikely to have played any significant part in Averil and Deborah’s decision to pay the £100 each per month. They were already getting a good deal out of the proposed arrangement, because(a) they were receiving £20,000 each in money or money’s worth

(b) they were getting it now rather than in several years’ time, free of any inheritance tax that might otherwise have been levied on it, and

(c) if things were not resolved in this way there was a very real prospect they might not have got any of the value of the Shop at all on their parents’ deaths. Averil was able to reduce the mortgage on her home in Knowle to the figure that enabled her to claim the full amount of available tax relief, and she had additional capital of £8,000 to use as she saw fit, as well as the use of her own resources that she would otherwise have expended on repaying the larger mortgage. Deborah had a property that, once it was converted, had the potential to become a very desirable residence (and later, brought her in an income before she sold it at a substantial profit); it was also as close to her parents’ home as she could possibly have wished.

[93]I accept that disposing of the Shop, and everything else that flowed from that disposal, including the agreement to pay the £200 per month, was designed to enable Joe and Clare to keep the House, because they had built it, it had sentimental value, they had lived in Aldridge all their married life and did not want to move, and it probably would not have been easy for Clare, with her fragile mental state, to have got used to living elsewhere. Deborah described the House as her mother’s “safe space”. Averil’s evidence was “they told us they were concerned to have a regular reliable income so that they could stay in 3 Harborough Drive for the rest of their lives.” However, it does not necessarily follow from this objective that Averil and Deborah were given a specific assurance that they would inherit the House in order to persuade them to agree to provide a substitute for the income stream from the Shop so as to enable Joe and Clare to stay in the family home. It probably would not have mattered to Averil or Deborah whether they inherited equal shares in that property or in some other property when their surviving parent died. So keeping the House for Joe and Clare for the foreseeable future did not necessarily equate to preserving that property so that in due course their daughters would inherit it. Indeed, Averil said she expressly envisaged that a time might have come when her parents would have to sell the House and move somewhere smaller. Moreover the fixed amounts to be paid to Joe and Clare did not take into account the prospect that in future the cost of living might rise to an extent where even £200 per month would not suffice to enable them to continue to live in the House.

[94]Although there was no need for Joe and Clare to have given their daughters an assurance about their future inheritance in order to prompt them to agree to the instalment payments, and the separate bargain relating to the House described by Averil and Deborah makes little or no sense in this context, the link that I have found between the arrangements concerning the division of the realised value of the Shop, and the monthly payments in substitution for the income that would otherwise have come from the Shop, is not necessarily inconsistent with the payments also being linked with assurances by Joe and Clare regarding the balance of Deborah and Averil’s anticipated inheritance. Parents in Joe and Clare’s position could well have made a proposal to their children along the following lines:

“You know our estate will be shared between you equally when we die. We will let you have half of it (the value of the Shop) now, and the rest (the House) when the survivor of the two of us dies, so long as you provide us with a monthly income that will enable us to live there for the rest of our lives, because by giving you the Shop we will have deprived ourselves of the only source of additional income we have, and the only chance of preserving the House for you.”

That is not an implausible proposal for Joe and Clare to have made in this context, and had there been some evidence to support it, I might have been disposed to accept that that is what happened. However, that is not the bargain that Averil and Deborah said their parents made with them, and it is not open to me to find that it was, in the absence of any supporting evidence and in the face of what Averil and Deborah maintained in the witness box.

[95]The Claimants’ case, and their evidence, was that the payments were made solely in response to assurances that were given about their future inheritance, and had nothing to do with the sale of the Shop or the payment of the £20,000 to Averil. The objective evidence and the inherent probabilities do not support that case. If there must be a choice between the instalments being paid in return for the realisation of the value of the Shop and its division between Averil and Deborah, or the instalments being paid in return for a promise that in due course Averil and Deborah would inherit the House, the objective evidence and inherent probabilities point very clearly towards the former, not the latter. What Joe said to others about the arrangement

[96]The next thing to consider is how Joe treated the ongoing arrangement with his daughters from 1986 onwards, and what he said to other people about it, particularly to Marion and her son Anthony. Joe was a private person, who was unlikely to have discussed his financial affairs with anyone outside the family. If he did mention such matters, it was never in any detail, but only in broad and general terms. Nor is he likely to have revealed to any outsider the fact that he was financially dependent on his daughters, rather than vice versa. I bear in mind Joe’s wish to keep up appearances within the small Aldridge community and therefore treat what he said to friends and neighbours with an appropriate degree of caution. Joe made a new Will in January 1987. Its terms are unknown. It may have contained a provision that Averil and Deborah would inherit his estate in equal shares if Clare predeceased him, as Averil suggested, but that is pure speculation. In the circumstances, that would have been a sensible and logical course for Joe to take, whether or not he had made any earlier promises to his daughters about it. Clare obviously did not do the same, since her Will remained unchanged. The change of Will by Joe, therefore, is not compelling evidence that any promise or assurance had been given by both parents.

[97]Marion appears to have been completely unaware that the purpose of the monthly payments by Averil and Deborah was to supplement the family income and to cover the couple’s utility bills and council tax so that they could continue to afford to live in the House. She left all financial matters in the hands of Joe, and got the impression that his savings were more than sufficient to provide for their needs. It is possible that she was right about that, at least in the early stages of her relationship with Joe, given the size of Clare’s inheritance from her aunts. Marion’s evidence, in her witness statement, is that Joe told her that the instalment payments into his account were repayments of the interest element only of loans he had made to Deborah and Averil. Therefore, when she went to see her solicitors David Drury & Co. after Joe’s death, that was the account she gave them, and she instructed them that she did not wish the repayments to continue. Although Marion’s evidence could not be tested in cross-examination, it is consistent with the attendance note of a preliminary pre-probate meeting she had with Ruth Horsfield of David Drury & Co, and the letter written to Marion by Ms Horsfield following that meeting. It is clear from the letter that the specific context of the discussion about gifts and loans was an attempt to complete an accurate IHT account. The attendance note records that:

“Mr Frost’s children owe him money as he had loaned monies to them but there is nothing in writing and Mrs Frost does not wish to pursue for monies owing. Mr Frost had made gifts to his children but Mrs Frost does not know the dates and accurate amounts but confirms that the gifts and loans do not come over and above the inheritance tax threshold.”

[98]Marion’s evidence is also consistent with what Joe said when he asked Anthony to act as his executor, at around the time of his marriage to Marion. Anthony asked Joe to show him the documents pertaining to his finances, as he had never undertaken the role of executor before and he was slightly uncomfortable about it. Joe produced a notebook (which unfortunately is now missing) in which he had recorded various payments made to and from his daughters, and also his bank statements. Mr Rollason recalled Marion becoming distressed when she could not find the notebook after Joe’s death. However Anthony recalled Marion and Joe telling him that Joe had burned a lot of his papers in the garden before he died, which is one possible explanation of what happened to it. Anthony specifically asked Joe what the sums being paid by Deborah and Averil were, and Joe said that they were repayments of loans. When Anthony asked him for more details, Joe became upset; he said that he would never get paid back the full sum and that when he was dead “that would be it”. Anthony did not press the matter further.

[99]I am satisfied that Joe did not make any loans to Deborah and Averil. The fact that all the payments to Averil comprising the £20,000 were denoted specifically as “gifts” is not conclusive evidence of their nature, since that was plainly done for legitimate tax reasons. However there was never any question of Deborah or Averil having to pay back the £20,000 in money or money’s worth that they each received under the arrangement with their parents. Joe’s characterisation of the instalments as repayments of loans (or the interest element on loans) is consistent with a wish to disguise their true nature even from Marion and Anthony. Even though, with the benefit of the remains of Clare’s inheritance, Joe was reasonably well off when he married Marion, and he probably no longer relied on the instalments to make ends meet at that time, he may have been too proud to explain how they had come about or what their real nature was. He may also have felt that they were a private arrangement between himself and his daughters and that not even Marion should know about it. Moreover, Joe may have decided to put the “loan” label on them for tax reasons. It seems that he may well not have declared them as unearned income (this suggestion came as no surprise to Averil when it was put to her in cross-examination), in which case he may have feared the consequences of revealing their true nature to Anthony, in particular.

[100]A further possibility is that Joe wanted to keep the arrangement he had made with his daughters a secret from Marion and Anthony, so as to avoid any potential upset it might cause, though if the arrangement was of the nature contended by the Claimants, and Anthony was going to be his executor, Joe must have been aware that it would come to his attention soon enough after his death. Human nature being what it is, Joe may well have taken the view that this was not his problem. I find this less plausible, because Joe plainly intended by that stage to cut his daughters out and leave everything to Marion. He must have thought that Marion’s position would be secure, in which case, he would not have assumed that any prior arrangements he had made with Deborah and Averil would upset Marion or cause any difficulties for her, whether he revealed them to Anthony in 2002 or they came to light in the future.

[101]If, however, the instalments were the agreed income return on the early use and enjoyment of a capital advance on his daughters’ inheritance, Joe may well have used the word “loan” to describe that arrangement simply as layman’s shorthand. He knew that he would not get the capital back on his death and that the instalment payments would also cease at that time, which is exactly what he told Anthony. Consequently Joe’s characterisation of the instalments as “loan repayments”, whilst inaccurate, fits better with an arrangement pertaining to the Shop alone, than it does with a promise to leave his daughters something in the future. So too does Joe’s insistence, at a time when he had already disinherited her, (though she did not know it) that Deborah should adhere to the terms of the arrangement even when she was struggling to find the money to pay him. If Joe knew at that time that he had already gone back on his word, and that Deborah was paying him the money in the expectation of receiving a share of the House, an insistence that Deborah kept her word would be the height of hypocrisy, as well as a mean trick to have played on his daughter. If, on the other hand, Joe felt that he and Clare had already done what they had promised to do for the girls in return for the monthly payments, and there was no obligation on him to leave them the balance of the estate, regardless of the fact that that may have been his intention at one time, his insistence that Deborah should keep up the payments would be entirely natural. It is also more consistent with the picture of Joe’s character that emerged from every witness in the case, other than Deborah.

[102]I now turn to consider a potentially significant piece of evidence about a conversation with Joe in 2002 that emerged during the cross-examination of Roger Peach, whom I did not regard, in general, as a reliable witness. He displayed a somewhat cavalier attitude towards the requirement that a witness statement should be an accurate reflection of what the witness can speak to from his own personal experience. There was no clear delineation between what he himself could attest to, and hearsay. To give but one example of many, in paragraph 14 of his witness statement he stated:

“I am aware of several occasions when the Claimants requested money from [Joe]. Sometimes these requests for money were treated as gifts other times loans and the repayments were made by instalments”

. In cross-examination, however, he admitted that he was never present on any occasion when money was requested or handed over. He said he recollected Deborah telling him of one occasion when she had asked her father for money, but was unable to specify when that was, or what the amount was, or even whether Joe had given it to her. When pressed about paragraph 14, he said that Joe had told him this “in very general terms.” In cross-examination it emerged that much of Roger’s evidence was based on the extrapolation of information that he recollected from “long and rambling” conversations with Joe over a period of several years.

[103]It also seemed clear to me that, regrettably, Roger was not impartial, though he professed to be. He put a gloss on his evidence that was invariably unhelpful to Deborah and Averil, usually by adopting hyperbolic expressions – for example he stated in paragraph 4 of his witness statement that he was informed that the Shop (which was erroneously referred to throughout his statement as 1 Harborough Road) had been sold to Deborah at a “fraction of its value”. In paragraph 17 he referred to Joe confiding that his daughters had “all but abandoned him” and in paragraph 25 he referred to Averil “removing pictures off the wall, taking ornaments and rifling through the sideboard” after the funeral and said that onlookers were “appalled” (in cross-examination he modified this to “quite horrified”). Ultimately he did concede that he may have exaggerated certain aspects of his evidence. His evidence in general sought to emphasize how little Joe’s daughters appeared to have cared for him in the later years of his life and to play up any tensions in the relationship between Joe and Deborah. In the course of cross-examination he volunteered that he had told Joe that he and Deborah had broken up because she had a split personality and that he could not live with her, and that Joe had responded “nor could I”. At that point, Deborah’s avowed reluctance to attend her father’s funeral because Roger would be there became far more understandable than it was at the time when she gave her evidence. In her witness statement Margaret Yeo painted a picture of Roger as something of a troublemaker, and I concluded that when he gave his evidence his main objective was to cause trouble for the Claimants. In consequence, although much of Roger’s evidence was consistent with what other, more reliable witnesses told the Court about Joe’s expressed views about his daughters and Marion in the later years of his life, and I do not consider that he was being deliberately untruthful, I place very little weight on most of what he said.

[104]However, that does not mean that everything Roger said was so unreliable that I should ignore it. On the contrary, evidence helpful to the Claimants coming from such a witness might be regarded as especially significant. In the course of cross-examination, and in answer to the suggestion that he could not be sure that Joe would have told him of the arrangement he had made with his daughters in 1986, Roger volunteered this:

“We did have a discussion after he’d written his Will to leave Marion the property about the possibility that someone could challenge that if there had been a previous promise. It was around the time of the marriage. When he said he had excluded Averil and Deborah from his Will we discussed what would happen. I raised a concern with him. The gist was that there could be a challenge to what he had done, I said I had seen other people challenge Wills on grounds of previous Wills.”

Roger said Joe’s response was that it had all been done through a solicitor, that he was of sound mind and that all was in order. He had said nothing about any previous promise he had made to his daughters. In answer to further questions from counsel, Roger said that he did not think he had used the word “promise” when speaking to Joe, but that it was a word he was using now to give the gist of the nature of his concerns.

[105]That particular piece of evidence had the ring of truth about it, not least because it was clear to me at the time that Roger had no appreciation of its potential significance – in any event, not until after Miss Rich made it clear to him by her subsequent questions, when Roger rapidly started to backtrack. On the face of it, his evidence suggests that there may have been some concern expressed about promises previously made to Joe’s daughters. However, it is important to bear in mind that this discussion took place when Joe had altered his testamentary dispositions from the terms of the 1999 Will, which probably did leave Joe’s estate, or the bulk of it, to his daughters, with Marion getting a life interest in the House, and a pecuniary legacy of £10,000. Roger may well have been aware of the provisions of the 1999 Will, at least in general terms.

[106]On the other hand Roger did not know the full story about the 1986 arrangements, whatever they were, even though Joe had told him in general terms about the realisation of the value of the Shop and the equal division of that value between Deborah and Averil. There was no evidence that Deborah told Roger anything about the £100 per month she was paying to her father or why she was paying it; indeed she did not volunteer any information about that subject to her current partner Christopher until they started to experience financial constraints in 2004, four years after they had started living together, and even then what she told him was vague. If Roger was told anything at all by Joe about the instalments being paid by Averil and Deborah (which I doubt) he would have been told that they were loan repayments. Moreover the person raising the concerns about previous Wills or promises was not Joe, but Roger, who plainly did not wish his ex-wife to get a penny from her father and wanted to make sure there were no loopholes. On balance, therefore, I conclude that this piece of evidence from Roger does not take the Claimants’ case any further. What Averil and Deborah said to others about the arrangement with their parents

[107]Neither Averil’s husband Alun nor Deborah’s partner Christopher had any clear understanding of the terms of the arrangement made between Joe, Clare, Averil and Deborah in 1986. If the arrangement had been described to them in the terms that are now contended for by the Claimants, at a time prior to any dispute over Joe’s disposition of his property, that could have been important corroborative evidence.

[108]Alun’s evidence was that he gathered from conversations with his wife over a period of around 10 years that the payments she made were intended to help her father financially on the understanding that, as daughters, she and Deborah would one day inherit his estate. It was clear that he knew nothing of the precise details of the discussions in 1986 or of any subsequent assurances given to Averil.

[109]Christopher’s evidence in his witness statement was that when he and Deborah were going through the period of financial constraint after the birth of their second child in around 2004 to which I have already referred, Deborah told him that her father had made inadequate pension provision during his life and that she and Averil had agreed to pay their parents £100 per month, and in return their parents had agreed that on their deaths the estate would pass to them in equal shares. However in cross-examination, Christopher very frankly told the court that he would find it nearly impossible to recollect that conversation with Deborah in full. He was aware of a “longstanding arrangement” with Deborah’s father and mother, and he knew that Deborah kept up the payments to them. When asked whether he was aware that the arrangement was made at the time of the sale of the Shop, he said that he was not aware of making that connection at the time. Whilst Christopher’s recollection provides some support for Deborah’s case, it is not particularly strong support. The evidence of Averil and Deborah

[110]That brings me to the evidence of the Claimants themselves. Both are able, articulate and intelligent women with considerable strength of character. I have no doubt that they expected to receive at least some share of Joe’s estate on his death, although I suspect that the terms of his last Will came as more of a shock to Deborah than it did to Averil.

[111]Averil gave her evidence in a measured, straightforward and careful manner that made a favourable impression. I consider that Averil was stating what she now believed to be the truth, but that hindsight and an element of wishful thinking had put a gloss on her recollection, especially of events that took place as long ago as 1986. Regrettably, her unwillingness to accept the link between the sale of the Shop, the £20,000 she received in December 1986 and the monthly instalments she paid to her parents, and her evidence that there was no conversation with Joe about the cost of her two daughters being put through University when the objective evidence indicates that something must have been said on that topic, made it impossible for me to take all her evidence at face value, though this was attributable to faulty recollection rather than deliberate untruthfulness. I cannot accept that in 1986 Averil believed she was being given a future share in her parents’ house in return for providing them with an income. However I do accept much of what she told the Court, insofar as it was consistent with the inherent probabilities and with Joe’s behaviour at the relevant times.

[112]It is noteworthy that the last of Joe’s relevant conversations with Averil about what she could expect to inherit from him took place in 1999, sometime before Joe executed the September Will that gave Marion a lifetime interest in the House and a pecuniary legacy. Up until then it is highly likely that Joe did intend to leave his estate, including the residue of Clare’s inheritance, and the House, to his daughters in equal shares, and that he would have said so to them, particularly if he wished to reassure them about the potential impact on their inheritance of Marion having moved in with him in 1997. That is consistent with Averil’s evidence of the conversation with Joe in 1998 about her lack of a pension, and their conversation prior to the making of the September 1999 Will. It also seems likely that in one or both of the 1999 Wills executed after seeing the Building Society financial adviser, Joe made some provision for his grandchildren (at that time, Averil’s two daughters) to inherit in the event that Averil predeceased him. That is also consistent with Joe’s conversation with Deborah about adding Florence as a beneficiary shortly after she was born in 2002, which Joe or, more likely, Deborah reported to Averil.

[113]In my judgment, in 1998 and again in 1999 Joe did lead Averil to understand that he was going to leave her a half share in his estate, which by then was considerably more than just the House, though, given the background, what he promised could have been reasonably understood by Averil to relate specifically to the House. What Joe said in 1998, and again in 1999, was an express articulation of what the parties expected to happen at the time of the arrangements made in 1986 and the advance of £4,000 to Averil in 1994. However, on each of those occasions the assurance was no more than a statement of Joe’s present testamentary intentions, and was capable of being changed in future, particularly if circumstances changed. Joe said what he did in 1999 because he was concerned that Marion was vulnerable if he made no express provision for her at a time when she had no legal status in his household despite having given up her own accommodation to move in with him two years previously. No doubt he was also trying to reconcile his daughters to the prospect of Marion taking their mother’s place.

[114]At the time, as his September 1999 will provided, Joe fully intended his daughters to inherit the House in equal shares, and to give Marion the right to remain in the House for the rest of her life, together with a pecuniary legacy out of his remaining capital so that she had a sufficient income on which to live (thereby tacitly acknowledging that the instalment payments would cease on his death). He presented this to Averil as a fair proposal, as indeed it was. However there was no detrimental reliance on those assurances sufficient to give rise to a proprietary estoppel. The assurances in 1998 and 1999 were not connected with the instalment payments to Joe, which by then had been going on for many years already. The monthly payments began and continued in the expectation that the survivor of Joe and Clare would leave Averil and Deborah each a half share of the House in due course, but that was not the reason for them; they were an agreed substitute for the income from the Shop, given in return for the early realisation of a half share of Joe and Clare’s existing assets and its division between Averil and Deborah. There was no connection between those payments and the anticipated inheritance of the House. Averil would not have stopped making them if Joe had not said what he did (nor, for that matter, would Deborah).

[115]It seems likely that Joe’s express and clear assurances on those occasions in 1998 and 1999 (together with the agreement reached with both her parents in 1994 that the £4,000 be treated as an advance on her inheritance) caused Averil either to convince herself that similar assurances had been given in 1986, or to elevate general statements made by her parents about her likely future inheritance in the context of what she could still recall of the family discussions in 1986, to a status of clear and unequivocal assurances that they did not warrant.

[116]Three years later, having seen little of either daughter in recent years, and probably in the wake of their objections to his proposed remarriage, Joe changed his mind. He did not continue the arrangement in his September 1999 Will upon his marriage to Marion, though his daughters no doubt hoped and expected that he would. Joe plainly felt that his daughters no longer cared about him when he changed his Will on the occasion of his marriage to Marion. At that stage, Joe had made his mind up that his priority was to make provision for Marion, and that if Marion died first he was going to bypass his daughters in favour of the grandchildren. He obviously felt by then that giving Marion the right to live in the House and a capital sum on which to live was not enough to secure her position as his widow. Without Marion’s care, Joe may well have had to sell the House and move into sheltered accommodation. Notwithstanding the benefit he had derived from their supplements to his income over the years, Joe was entitled to decide that his daughters had had enough from him, and that Marion’s needs took priority.

[117]After Joe’s marriage to Marion, and especially towards the end of Joe’s life, Averil became suspicious that Marion was trying to create more distance between Joe and his daughters. She was hampered to some extent from taking steps to counteract any influence that Marion had over Joe, though the problems in contacting him by telephone or in person did not preclude her from writing to him. Averil may have drawn some comfort from the fact that whenever he had made significant changes to his Will in the past, Joe had always had a discussion with her and her sister beforehand (as he did in 1999) but she was nevertheless sufficiently concerned about Marion to try to prompt Joe to make a substantial gift directly to her two daughters, no doubt figuring that in that way at least part of the family assets would be passed down to Joe and Clare’s blood relatives if Joe did decide to bypass her.

[118]I also find it significant that in her exchanges with the PALS officers, Averil viewed the prospective sale of the House itself with equanimity, even suggesting that “we” (presumably meaning she and Deborah) could easily purchase alternative accommodation for Joe and Marion if they did not have to go into residential care. This behaviour is not consistent with a continuing belief that, provided the instalments continued to be paid each month, Averil was entitled to a half share of the House on Joe’s death. No doubt Averil still hoped to inherit a significant share of Joe’s estate, but that was as a result of the natural love and affection between them and not as a result of anything Joe had said to her many years before he died, and before he married Marion, or anything that she had done in response.

[119]I found Deborah to be a less reliable witness than her sister. As with Averil, and for the same reasons, I was unable to accept Deborah’s evidence about the arrangements made with their parents in 1986. However in Deborah’s case I was less inclined to attribute this to a false memory coloured by her father’s much later express assurances to her and her sister. Deborah persisted in the obviously nonsensical suggestion that her parents valued their previous services to her at £20,000, and said that it was not for her to question their judgment. She seemed very keen to avoid the conclusion that the £20,000 paid to Averil had anything to do with the sale to her of the Shop, other than that the sale provided her parents with the wherewithal to make such a large gift to her sister. I am driven to the conclusion that this was because Deborah appreciated that if the disposal of the shop to her equated with the payment to Averil, there had to be a link between those events and the agreement to pay the £100 per month to her parents, which would make it less likely that the instalments had anything to do with any statements made by her parents at the time about their future inheritance prospects.

[120]In the light of Patrick’s observations to her friend Margaret Yeo at the time, it appears that Deborah was not as reluctant to move to Harborough Drive as she made out. She appears to have been very close to her parents at that time, particularly to her mother Clare, as is demonstrated by the care she provided to her mother when the agoraphobia took hold in the final years of Clare’s life. Moving to live opposite them in Harborough Drive no doubt accorded with Deborah’s own wishes. The acquisition of the Shop was yet another step up on the property ladder, and this property had considerable potential, which Deborah ultimately realised. Even on Deborah’s evidence that she spent £25,000 on the property in the 10 years between its purchase and resale, and making some allowance for inflation, she still made a handsome profit when she sold it for £110,000 in 1996. Deborah was exaggerating about the run-down state of the Shop when she purchased it, and she went to extraordinary lengths to seek to persuade the Court that it was worth less on the open market than she got for her semi-detached property, despite the fact that it was a detached property and considerably larger. The excuse she gave for Joe failing to put the property on the open market and sell it to someone else who would convert it into a residence – Joe’s alleged racism – emerged for the first time while she was giving her oral evidence. Had this matter been as significant as Deborah suggested, I would have expected her to have mentioned it in her witness statement. Whatever Joe’s views, I have no doubt that, rather than move from the House, Joe and Clare would have put the Shop up for sale regardless of who might have moved into it, unless the family was able to devise a better scheme – which, in the event, they did.

[121]Deborah’s estrangement from Joe appears to have arisen at around the time, or not long after, he changed his Will in September 1999 to make provision for Marion. It was Deborah who queried the terms of that Will with her father when she saw it in draft, pointing out some of the obvious deficiencies in it. Judging by Joe’s reaction to Deborah’s concerns about his continuing friendship with Roger, he may well have taken this as an unwarranted interference with his right to deal with his property as he saw fit. Even though there had been a rapprochement of sorts by the time that Florence was born in 2002, Deborah had long since ceased to see her father on the regular basis that had been the norm before she sold the Shop, and before they fell out. It seems that even after the rift was healed, things were never the same again between Deborah and her father. I got the very clear impression from the way in which Deborah spoke of her father whilst giving evidence (including the tone of her voice when she referred to him) that however much she may have loved Joe, as no doubt she did, their relationship was not always an easy one, particularly in the final years of his life. I do not accept that Roger’s presence was the only reason why Deborah chose not to attend Joe’s funeral. She took none of the obvious steps that one would have expected her to take if that was her sole objection, such as speaking to Marion or Anthony about it and seeing if they would persuade Roger not to attend. Roger said he would not have attended if he had known that his presence was deterring Deborah’s attendance at her own father’s funeral, and on that point, I believed him. If bringing the children was perceived to be a problem Deborah could have arranged to come alone, particularly as Christopher could have looked after them. There was plainly more to it than that, but I cannot speculate as to what it was.

[122]If I accept Deborah’s evidence about what her father said to her in the course of 2004, it inevitably follows that he was lying to her about his intentions, since by then he had already changed his Will to bypass her and Averil and leave the money directly to their children in the event that Marion should predecease him. Deborah’s evidence was that this was unsurprising, and that there were many facets to Joe’s personality. To use her words, he was a “bit of a rogue” and adept at concealing the truth, even from Clare. On the other hand, she said she had no reason to believe that he would renege on the agreement he had reached with herself and Averil. Averil, by contrast, portrayed her father as an essentially honourable man, who would not have changed his mind without feeling that he had a justification for doing so, even though she personally believed that there was no justification for his change of heart. That evidence accorded with what the other witnesses had to say about him and with the overall impression I gained of Joe. Miss Rich submitted that Deborah was the one witness who knew Joe better than anyone else, even her sister, and that this was a “warts and all” portrait. Whilst I am quite prepared to accept that Joe was no saint, Deborah’s portrayal of him seemed to me to be a by-product of her understandable resentment at his treatment of her and her sister.

[123]When Joe spoke to Deborah about adding Pandora as a beneficiary in 2004, it would have been natural for him to say that Pandora was being added on the same footing as Florence. Since Deborah was unaware of the terms of Joe’s 2002 Will, she would also have assumed that Pandora was going to be made a substitutionary beneficiary for her in case she predeceased Joe, as Joe had told her after Florence was born. Therefore, she may have mistakenly recollected that conversation as including an express statement by Joe to that effect.

[124]I find it harder to accept Deborah’s version of the conversation about the boundary dispute with Joe’s new neighbours in Harborough Drive in late 2004. Although Joe may well have told Deborah that he had to resolve the matter in order to preserve the value of his estate, there was no reason for Joe to have restated his promise to Deborah and Averil at that time and acknowledged that Deborah had kept her side of the bargain. By then he had made his mind up that he was not going to fulfil that promise, and he had convinced himself that he was justified in changing his mind.

[125]I am prepared to accept that if Deborah had asked Joe directly about his intentions at that time, he may well have lied to her in order to avoid an argument, or because he was afraid to admit what he had done, which would inevitably cause friction and could have led to the infrequent visits of his daughters and grandchildren ceasing altogether. That may well also explain what he said to Deborah about the advance to Averil being balanced out on his death, at the time when he refused her request for the advance of £4,000. However, I do not consider it likely that Joe would have deliberately volunteered a lie in the context of the boundary dispute. It is far more likely that Joe indicated that he was anxious to achieve clarity over the extent of his property so that there was no uncertainty when he died, and that Deborah drew certain assumptions from that anxiety, which she has converted in her own mind into express assurances. At most, if Deborah said something to Joe to indicate that she still expected a half share in the House, Joe said nothing to disabuse her.

[126]On the balance of probabilities I find that Joe did not make any further promises or give any further assurances to Deborah about leaving her and Averil his estate, or the House, in equal shares, after he married Marion, save possibly in the context of fobbing her off when she requested the £4,000.

CONCLUSION

[127]Thus the last time that Joe gave any clear assurances of his intentions regarding his estate to either or both of his daughters was prior to changing his Will in September 1999, before he married Marion. I do not accept that Joe made any express assurances or promises to either of his daughters after he married Marion. What Joe said to Deborah when he refused her request for an advance of £4,000 in 2004 was not a sufficiently clear and unequivocal assurance in itself to found a proprietary estoppel, nor did she rely on it to her detriment. Nor do I accept that Joe was already fettered by a proprietary estoppel from making the 2002 and 2004 Wills in the terms that he did.

[128]Although Joe had benefited from the instalment payments made by his daughters, which had enabled him to continue to live in the House for a further twenty years, those payments were made solely in return for an advance on their inheritance in accordance with the bargain struck with their parents in 1986. There was no clear and unequivocal promise of a share in the property in return for that income. If and insofar as the monthly payments were also made by Joe’s daughters in the expectation of receiving the balance of the inheritance, that expectation was not fostered by any specific promises made to Averil or Deborah by their parents at the time when the payments began. There was a tacit assumption that Averil and Deborah would inherit their parents’ estate in equal shares, but that was a natural assumption because there was nobody else who could have inherited it, and that remained the case when Joe and Clare advanced Averil £4,000 in 1994. In 1998 and again in 1999 Joe did give his daughters specific assurances of his intention to leave them his estate in equal shares notwithstanding that Marion was now sharing his home, and he even made a Will reflecting that intention, but those assurances did not give rise to any relevant detrimental reliance, as they would have continued to pay the monthly instalments regardless.

[129]In any event, by the time that Joe remarried, and certainly by the time he died, regardless of what he may have said in the past, his circumstances had changed to such an extent that it was not unconscionable for him to leave the House to his wife and principal carer, Marion, outright, even if on one view it may have been fairer for him to dispose of it differently. Joe’s view that his daughters no longer cared about him and were only after his money was unjustified and it was fostered, no doubt unintentionally, by Marion’s behaviour in rationing visits. Nevertheless, Joe was entitled to take the view that his daughters had already been sufficiently provided for, notwithstanding the continued monthly payments he was getting from them. There appears to be no basis even for a restitutionary claim against Joe’s estate because the instalment payments were not gratuitous, and Joe and Clare performed their side of the bargain in 1986.

[130]I should add that despite my findings, I do have considerable sympathy for Averil and Deborah’s position. It is entirely understandable that having indirectly contributed over 20 years to the preservation of the House as a family asset, without regard to their own or to Joe’s financial circumstances, and in the light of Joe’s assurances to them after Marion had moved in and before he remarried, Averil and Deborah should feel strongly that only Joe and Clare’s blood relations should inherit the House or what remains of its proceeds after it is sold, and after Marion has been looked after as Joe would have wished and they promised him she would be. What Joe’s daughters were asking the Court to order no doubt would have produced a more equitable outcome; but it is not the function of the Court to re-write Joe’s Will so as to produce an objectively fairer distribution of his estate than he himself intended. The claim for proprietary estoppel has not been made out. It seems likely that much of Joe’s estate will be used up in providing care for Marion for the rest of her life. It is nevertheless to be hoped that whatever provision Marion has made, or will make in future, for the disposal of the residue of that estate, which is now her estate, on her death, she will bear in mind what I have said. At the very least, I would hope that Marion would honour Joe’s wish that all his grandchildren and step-grandchildren, including the youngest, Pandora, should succeed in equal shares. However, for the reasons stated, this claim must be dismissed.

Cited in 1 later judgment

Murphy v Rayner & Ors 2011