Taulbut & Ors v Davey (As Executrix of the Deceased) [2018] EWHC 730 (Ch)

[2018] EWHC 730 (Ch)

Case No D31BS599

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

IN THE ESTATE OF PAULINE ANNE WIPPELL DECEASED

Venue Bristol Civil and Family Justice Centre

2 Redcliff Street

Venue Bristol BS1 6GR

Date 10/04/2018

Before

HH JUDGE RUSSEN QC

(sitting as a Judge of the High Court)

Between

(1) DENISE KATHLEEN TAULBUTClaimants

(2) PAUL JAMES McMULLENClaimant

(4) SHARON MORANClaimant

GILLIAN ANN DAVEYDefendant

Edward Hewitt (instructed by Freeths LLP) for Claimants

Nicola Preston (instructed under the Bar Public Access Scheme) for Defendant

Hearing Hearing dates: 14 and 15 March 2018

Judgment Approved

HH Judge Russen QC:

Introduction

[1]Mrs Pauline Wippell (“the Deceased”) died on 4 April 2013 leaving a manuscript will dated 17 March 2013 (“the Will”), the terms, meaning and effect of which are in issue in these proceedings.

[2]The Claimants and the Defendant (Mrs Davey) are the four executors named in the Will.

[3]By a Part 8 Claim Form issued on 24 March 2017 the Claimants seek the court’s determination of the proper construction of the Will, directions as to the distribution of the Deceased’s residuary estate and an order removing Mrs Davey as executrix pursuant to section 50 of the Administration of Justice Act 1985 and/or under the court’s inherent jurisdiction.

[4]The Claim came before me on a disposal hearing on 14 and 15 March 2018 at which Mr Edward Hewitt (instructed by Freeths LLP) appeared for the claimant executors and Mrs Nicola Preston appeared for Mrs Davey on instructions given in accordance with the Bar Public Access Scheme.

[5]By the date of the hearing counsel had identified the following agreed list of issues for the court’s determination (“the Issues”): 1. On proper construction of the Will, the manuscript document entitled “Attachment to my will dated Sunday 17 March 2013 Two Thousand and Thirteen[;] Letters [sic] of Wishes for my trustees” (“the Letter of Wishes”) and of the manuscript document entitled “KEEP THIS AS AN OFFICIAL DOCUMENT TO THE WILL – MY NOTES” (“the Notes”):(a) Is the Letter of Wishes incorporated into the Will and do its provisions impose legal obligations on the personal representatives and/or on the trustees of the Jepson-Hearn Charity Will Trust (charity number 1164251) and/or on the trustees of the Jepson-Hearn Charity Trust (charity number 1164254) (together “the Charities”)?

(b) Are the Notes incorporated into the Will and do their provisions impose legal obligations on the personal representatives and/or on the trustees of either or both of the Charities?

(c) In particular: (i) Does clause 1 of the Letter of Wishes give the Defendant a legally enforceable pecuniary legacy of £95,000? If so, when is it payable and by whom? (ii) Do the directions given in the Letter of Wishes regarding the fields owned by the Deceased impose legally binding obligations? If so, on whom? (iii) Do the directions given in the Notes regarding the fields owned by the Deceased impose legally binding obligations? If so, on whom? 2. Should the residuary estate (including the property known as the Fringes) be distributed to either of the Charities? 3. Should the property known as the Fringes be sold? If so, should its proceeds of sale be distributed to either of the Charities and/or to the Katie Piper Foundation? 4. Should the Defendant be removed as personal representative of the estate? 5. Should the Defendant be appointed as trustee of either or both of the Charities? 6. Should the Claimants be removed as personal representatives of the estate?

[6]I should note that Issue 6 has been introduced (and the existence of Issue 1(a) confirmed) by the terms of Mrs Davey’s Acknowledgement of Service dated 24 April 2017.

[7]On the Issues the claimant executors have no personal interest in how they are resolved, whereas (as appears from Issue 1(c)(i)) Mrs Davey has a personal financial interest in establishing that the Will creates a binding legacy of £95,000 in her favour in addition to the indisputable £5,000 pecuniary bequest included within it and which has since been paid. It is also right to note that on Issue 3 Mrs Davey is contending for an outcome which, she herself recognises, differs from what the Will provides even though she does not stand to gain financially however that issue is resolved. Whether or not Mrs Davey’s stance in these proceedings otherwise imports an element of personal, non-financial motivation on her part, which may be said to be distinct from what best serves the interests of the beneficiaries of the Deceased’s estate, is a consideration I must also bear in mind when addressing Issues 2, 4, 5 and 6.

[8]So far as the Claimants are concerned, as Mr Hewitt explained to me and was made clear at the directions hearing before Master Bowles on 5 July 2017, it has been decided that they should advance, for the benefit of the court, any contrary arguments to those presented by Mrs Davey. This was a sensible alternative to the Attorney General being joined to represent the interests of Charity and one intended to save avoidable costs. But the Claimants have made it clear that this stance is not to be taken as an abandonment of their position of neutrality, as office holders, or to jeopardise their right to argue that this should be treated as a “Buckton category 1 case” when it comes to the costs of the proceedings: see In re Buckton, Buckton v Buckton

[1907] 2 Ch 406

, 414.

Background

[9]The above issues arise in circumstances where, by the Will, the Deceased appointed the four parties to these proceedings as her executors. Three of the four (the exception being Mr McMullen) were also named as pecuniary legatees; the sums given to them “absolutely” being £100,000 to Mrs Taulbut, £10,000 to Mrs Moran and £5,000 to Mrs Davey. Whether or not Mrs Davey is entitled to a further £95,000 under the Letter of Wishes is an issue for me to decide.

[10]The Will, again with an exception in the case of Mr McMullen, also appointed the same persons as trustees of the Will. In place of Mr McMullen his wife Jane McMullen was appointed as trustee. In the event, Mrs Taulbut agreed to the Charity Commission appointing her husband Martin Bushnell in her own place as a trustee of the charitable will trust. The Will therefore named Mrs Davey to be one of the trustees of the will trust but, as appears below, she has not been appointed as a trustee of either of the charities subsequently registered with the Charity Commission.

[11]The Will provided for the trust of which those four were to be trustees in the following terms (having identified the property to be transferred to the trust):

“the above to be placed in Trust free of Tax to be called The Jepson-Hearn Charity Trust fund for people with severe facial disfigurement. To apply to register the charity with the charity commission as a registered charity. The house called the Fringes to continue as a holiday let but self-financing with out of season holiday for charity, with my letter of wishes of what the trustees can and cannot do.”

[12]The Will also provided for the following property to be transferred to the trust:(1) the house, fields (comprising some 6½ acres) and stables at The Fringes, Rowes Lane, Trevenan Bal, Helston, Cornwall; and

(2) three fields at the deceased’s home at Little Treglidgwith, Pronjeravah, Constantine, Cornwall. In the Will (and the Letter of Wishes) the Deceased referred to the 6½ acres as the fields at Wendron. The Deceased asked to be buried with her horse Dreamer in one of the fields there and I was told that she has been.

[13]Despite the passing of five years since the Deceased’s death, this property has yet to be transferred by the executors to the trustees, though the fields at Little Treglidgwith have been sold in the meantime. This delay well beyond “the executor’s year” (see section 44 of the Administration of Estates Act 1925) provides the context for Issues 4 and 6 above.

[14]Mr Hewitt told me that the sale of the three fields has resulted in a fund of approximately £420,000 being available for transfer into the trust. In addition, the value of The Fringes and surrounding land and buildings is thought to be about £450,000. In all, the residuary estate to be transferred to the trust has a value of approximately £870,000 subject to any outstanding administration costs (including the costs of these proceedings). The pecuniary bequests made by the Will have been funded by the sale of the property Little Treglidgwith (excluding the three fields).

[15]Another development in the intervening five years has been the registration with the Charity Commission of The Jepson-Hearn charity Will Trust (“the JHWT”) under charity number 1164251 and The Jepson-Hearn Charity Trust (“the CIO”) under charity number 1164254. I refer to the JHWT and the CIO together as “the Charity”. Both were registered on 4 November 2015. The steps taken in this regard are explained in the witness statement of Mr Nigel Roots, a member of Freeths LLP. Mr Roots says “the registration of the Charity was a fairly protracted process in which the Charity Commission were heavily involved: the Commission carefully scrutinised the process and only registered the Charity once they had independently concluded that their requirements had been satisfied.” The CIO is a Charitable Incorporated Organisation under which the ongoing liability of the trustees would be limited. The intention of the claimant executors is that the JHWT should receive the residue of the estate and then distribute it to the CIO which would be the “active” charity going forwards.

[16]Mrs Davey’s attitude to the steps taken to establish the Charity provides the context for Issue 5 (as well as Issues 4 and 6). Mr Roots also explains in his witness statement his recollection (aided by a contemporaneous attendance note and email dated 2 October 2015) of a telephone conversation with Mrs Davey on 28 September 2015 in which, he says, she indicated her intention to stand down as a trustee. The attendance note records Mrs Davey as saying that “she is still an executor and her concerns are more in the role of her responsibilities and liabilities as executor.” However, it is clear from a letter dated 20 October 2015 from Mr Roots to the Charity Commission (enclosing Mrs Taulbut’s consent to her own replacement by her husband) that he soon came to appreciate that, on his previous understanding, Mrs Davey had had a change of heart: “[A]t first she agreed but has now declined”.

[17]In the event, the JHWT and the CIO were registered without Mrs Davey becoming a trustee of either. Mr Roots has exhibited to his witness statement correspondence with the Charity Commission between January 2015 and February 2016 from which it was clear that the Commission was aware (also by reference to correspondence from Mrs Davey direct) of the potential conflict of interest on Mrs Davey’s part over the £95,000. By an email which, in the form of an attachment to another email to Mr Roots sent the same day, is undated but appears to have been sent on 29 January 2016 by Mrs Joanne Maguire of the Charity Commission, Mrs Davey was made fully aware of the Commission’s position that her potential claim upon the estate put her in a position of conflict. Mrs Maguire made it clear that the Commission had no power to remove Mrs Davey as an executor and that whether or not, as a trustee under the Will, she should also become a trustee of the Charity would depend upon her confirming that she either was prepared to act as a trustee of the Charity and make decisions in its best interests or, instead, that she was not prepared to act and could not act given the conflict of interest (in which case “you can either resign as a trustee or we can remove you by order”).

[18]As I return to below, Mrs Davey’s position is that she did not agree to step down as a trustee of the trust in September 2015 and refused to join in the giving of instructions to Freeths LLP to pursue the Charity Commission registration. That position was and remains strongly linked to her contention that, despite the terms of the Will quoted in paragraph 11 above and those of the Letter of Wishes referred to in paragraph 71 below, the property at The Fringes should be sold to avoid a drop in value of a property the condition of which, she says, has degenerated substantially since 2013. Her witness statement dated 27 April 2017 refers to the “unlawful charity registrations”. She is not content for the intended trust property and any residuary estate to be transferred to the Charity. To quote from that witness statement:

“I have formally instructed Freeths LLP to cease, desist and otherwise refrain from transferring any funds into Charity Registration Numbers RCN/1164254 and RCN/1164251 without further representation of the Court.”

[19]The same witness statement complains that The Fringes “has not been sold, I have not received the proceeds of sale from the dwelling house “Fringes” and its nearby land and I hold the claimants responsible for holding up the sale contrary to their sworn oaths before the High Court of Justice”. That is a reference to the £95,000 mentioned in the Letter of Wishes (Issue 1(c)(i)) and the reference to an alleged breach of an oath is made on the basis of the four executors’ Affirmation dated 9 June 2014 (including the promise to collect, get in and administer the Deceased’s estate according to law) filed for the purpose of obtaining the Grant of Probate.

[20]As can be seen from the above-quoted wording in the Will in relation to the establishment of the trust, the Deceased sought to make provision as to how the trust property should be held and administered by reference to “my letter of wishes”.

[21]The Will made four references to the Letter of Wishes. These were in the following terms:(1) (as quoted in paragraph 11 above) “…. together with my letter of wishes of what the trustees can and cannot do”;

(2) (in the part appointing the four individuals as trustees) “…. these trustees to follow my letter of wishes with regards to how the trust/charity be administer [sic] together with raising of funds”;

(3) (in relation to intended retention of the three fields at Little Treglidgwith) “….. and my instructions given in the letter of wishes”; and

(4) (the penultimate provision of the Will following a direction for the transfer of the trust fund by the executors to the trustees) “All decisions made by the trustees must be unanimous, and in accordance with my letter of wishes, which forms an attachment to this Will.”

[22]It can be seen from these references that the Deceased referred to the Letter of Wishes in terms that contemplated they were more mandatory than permissive or exhortatory.

[23]The Letter of Wishes referred to in Issue 1 bears the same date as the Will and its numbered paragraphs are headed “Letter of wishes for my trustees”. I will refer to its terms below in the context of the particular issue generated by it.

[24]The Notes which are mentioned in Issue 1 above were signed by the Deceased and bear the date 31 December 2012. They refer to “the will” which necessarily meant one earlier than the one dated 17 March 2013 which I am required to construe. The terms of the Notes themselves make it clear that the Deceased was anxious that the Notes should not be presented to the Probate Office (nor a copy of them held by Mrs Davey) in a way that might result in Mrs Davey’s husband gaining knowledge of any bequest to his wife. As the Notes included reference both to a bequest to Mrs Davey and to fields (see Issue 1(c)(i) and (ii)) there was potential for the Notes to assist in the interpretation of the Will even though the parties were agreed (for the purposes of Issue 1(b) and (c)(iii)) that the Notes were not incorporated in the Will (of 2013). With that in mind, and noting that no earlier will had been put in evidence, I raised with counsel the point that the value of the Notes as a potential aid to interpreting the Will might be limited by not knowing what the equivalent provisions of the earlier will, to which they referred, actually were.

[25]Until the second day of the hearing before me it was understood by the parties that the Deceased’s earlier will could not be located. However, on the morning of that second day Mr Hewitt produced a copy of the Deceased’s earlier will. This too was a holograph will and indeed it was its apparent similarity with the Will that had resulted in it being held in the files of the claimant executors’ current solicitors without any earlier appreciation that it was in fact an earlier one. The earlier will is dated 31 December 2012. Therefore, just as the Deceased signed the Letter of Wishes on the same day as she executed the Will, so too the Notes had been signed by her on the same day as that earlier will.

[26]The earlier will did indeed contain a legacy in favour of Mrs Davey, amongst other pecuniary bequests, in the following terms: “I give the following free of inheritance tax to …… Gillian A Davey £5,000 in cash (Five thousand in cash) and £95,000 to be held in trust with my solicitors Furze Sanders (sic) until such time as she becomes a widow (Ninety Five Thousand Pounds)”.

[27]The earlier 2012 will also made provision for the establishment of the Jepson-Hearn Trust (as a registered charity) and for the transfer to it of a trust fund comprising fields and the property known as The Fringes.

[28]With that explanation of the background, I now turn to the Issues and the parties’ respective positions and submissions upon them. Issue 1: the Scope and Meaning of the Will What does the Will comprise?

Issue 1: the Scope and Meaning of the Will

[29]Issues 1(a) and (b) include the question as to which documents comprise the Will.

[30]The parties were in agreement upon the principles to be applied to the issue as to whether or not a document, which was not itself the subject matter of execution in accordance with section 9 of the Wills Act 1837, has nevertheless been incorporated within a will which has been so executed. Mr Hewitt relied upon a passage in Williams, Mortimer and Sunnucks on Executors etc (20th ed), para. 12-42, and Mrs Preston cited Williams on Wills (10th ed), para. 15.1.

[31]To quote the paragraphs from Williams, Mortimer and Sunnucks:

“A document not formally executed as a will may in some circumstances be treated as part of the will. If so, it is said to be incorporated therein by reference. To be incorporated, the following three conditions must be satisfied: (i) the unexecuted document must be in existence at the time of the execution of the testamentary instrument in which it is to be incorporated; (ii) there must be a reference in the will or codicil to the informal document as an existing, not as a future document; and (iii) the unexecuted document must be so described as to leave no doubt, in the circumstances, as they are proved to have existed, that the document referred to is that propounded. The burden of proving these three conditions is upon those who contend for incorporation. It should here be remembered that documents not incorporated and not referred to in the will may affect distribution under the doctrine of secret trusts.”

[32]The passage in Williams on Wills is to the same effect in relation to the requirements for incorporation and the burden of proof, but with the terms of the Letter of Wishes and the identity of its addressees in mind I also remarked to counsel that the passage also contained the following statement:

“An existing document can be incorporated, though the incorporated document gives power to make a future unattested disposition, but in so far as that power is concerned, the incorporated document becomes invalid since, when incorporated in the will, the will contains a provision not allowed by law.”

This is clearly directed to the impermissible situation of a testator seeking, by the terms of the executed will, to make provision for future alteration of the testamentary dispositions within it, without regard to the formal requirements of section 9. Any such alteration would be ineffective unless contained within a validly executed codicil to the will (or a document referred to in any such codicil).

[33]I focused upon the statement because, initially, it seemed to me to be arguable that the Letter of Wishes conferred upon its addressees, the trustees of the charitable will trust, some power to decide in the future - (“may receive … when …. [or] … in the event of ….”) - whether or not Mrs Davey should receive the £95,000 referred to within it. However, Mr Hewitt for the Claimants did not seek to adopt and press this line of argument and, on reflection, I think he was right not to have done so. His focus was instead upon the precatory language of the Letter of Wishes and the point that, to the extent that it did delegate decision-making to the trustees, it confirmed his clients’ point that its provisions could not be binding as opposed to an expression of wish. Reflecting upon and expressing his position another way, the requirements of section 9 clearly do not prevent the establishment of a discretionary will trust, under which the discretion falls to be exercised in the future, but no discretionary beneficiary has any entitlement as opposed to, at best, an expectation.

[34]Plainly, all three conditions for incorporation are interlinked, which is obvious from the fact that they are all directed to the same document under scrutiny. If a will were to refer to the provisions of “a letter of wishes that I may write” (so that the second condition is not satisfied) then that would not only mean that the third condition is not satisfied but is also a strong indication that no such kind of letter already existed for the purposes of the first. Conversely, if the language of the will satisfies the second condition then that is a clear indication that there already exists a document which does indeed satisfy the first condition even though it will still then have to meet the third. Both scenarios assume that the testator has not been careless in his language describing this otherwise non-testamentary document, but careless language is unlikely to meet the requirements for its incorporation.

[35]As to Issue 1(b) – the incorporation of the Notes – I have already explained that it was common ground between the parties that the Notes were not incorporated in the Will. This must be correct. The only reference within the executed document to any “notes” is the one made by the Deceased to “My personal chattels other than those give [sic] prior to my death or specified in a note, to be sold and the remaining residue paid into the trust fund after taxes”. By reference to the subject matter of the Notes alone (they containing no reference at all to chattels) this fails to satisfy the third condition for incorporation, if not the second also, as set out in paragraph 31 above.

[36]On Issue 1(a) – the incorporation of the Letter of Wishes – Mrs Preston on behalf of Mrs Davey submits that the Letter of Wishes does form part of the Will. Mr Hewitt for the majority claimant executors, offering the rival argument in the spirit outlined above, submits it does not.

[37]This is in fact an issue on which, alongside other matters including the validity of the Will, all four executors together sought advice from Chancery counsel prior to the commencement of these proceedings.

[38]By an Opinion dated 18 October 2013 Ms Francesca Quint advised the executors of her conclusion on this aspect which was “in my view the Notes refer to the previous will and should be ignored and the Letter of Wishes is not a testamentary document or part of the will or legally binding but should be treated merely as a guide to Mrs Wippell’s wishes.”

[39]Now that the question of whether or not the Letter of Wishes forms part of the Will has been re-visited as one of the Issues in these proceedings, it is one I have to decide. I say at once that the view of Ms Quint, a very experienced and respected Chancery barrister, is obviously one to which I should pay considerable regard. On any view, and whether or not I decide to agree with it, her conclusion is a tenable one, otherwise there would probably be no issue worthy of the court’s decision.

[40]Like many contentious probate issues the decision-making process is both necessitated and made more difficult by the absence of any evidence from the person whose actions or intentions are in doubt, the Deceased. Any issue over the effect of the Will (whatever it comprises) is one to which the principles of construction and, possibly, the provisions of statute mentioned in paragraph 51 below may apply and assist the court. However, the issue of incorporation, at least in this case, raises a question of pure fact. I say that because the Claimants do not dispute that, if the first and second conditions for its incorporation are satisfied, the Will refers to the Letter of Wishes rather than any potential rival document, so that the third condition is satisfied. In essence, the question is whether the Deceased made a Will of three pages (the Will alone) or one of five pages (including the Letter of Wishes). This issue of incorporation – as to what the Deceased did as opposed to what she intended – turns upon whether or not the Letter of Wishes was written before the Will was executed that same day. There is no evidence from the witnesses to the Will to assist the court in deciding that issue.

[41]Mrs Preston, whose client bears the burden of proof on this issue, observes that counsel’s Opinion of 2013 did not refer to the conditions governing the incorporation of a document in a will. She also says that because the Notes themselves stated that they were “not to be presented to the Probate office” that an assumption was made that the Letter of Wishes too was not intended to be a testamentary document. These are fair observations upon the Opinion. Counsel’s advice did link the Letter of Wishes to the Notes, when expressing the view that neither of them constituted a testamentary document, and said “it therefore seems reasonable to assume that Ms Wippell must have intended the Letter of Wishes to be regarded in the same way as the Notes”.

[42]Although Ms Quint rightly observed that the Notes were “evidently referring to a previous will” it is clear that she did not have available to her the 2012 will which was produced only on the second day of the hearing before me. Accordingly, her observation that the Deceased did not intend the Notes to form part of that earlier will could not be tested by her looking at the terms of what is now known to be the 2012 will to see whether the Deceased’s intentions in that regard (and keeping them out of the public domain and away from the eyes of Mr Davey’s husband) would have been fulfilled or, perhaps, confounded had she died leaving the 2012 will as her last.

[43]Although it is not directly a matter for my decision, it appears to me that, in that scenario, the Notes would not have been incorporated in the 2012 will. Although the Notes were signed on the same day as the 2012 will, there appears to be doubt over the fulfilment of two if not all three conditions for incorporation. The two references in that will to any “note” arguably appear to be made in contemplation of a later note rather than by reference to an existing one; namely “my exact wishes to be known in a separate note” and “my personal chattels other than those given prior to my death or specified in a note”. I also observe that the Deceased was careful to number the second and third pages of the 2012 will as “Page 2 of Will consisting of 3” and “Page 3 of my Will consisting of 3 all originals”. That language seems to be consistent with her wish that the Notes should not be admitted to probate, though it seems to me that her desire that they should not be would not necessarily have prevented the conditions for incorporation being unwittingly satisfied.

[44]The question I have to decide is whether the same holds good for the Letter of Wishes in relation to the Will which uses different language and whose numbering on the second and third pages is not accompanied by words which might indicate the three pages exhaustively set out its terms. I must address this question by looking at the Will and the Letter of Wishes but disregarding the Notes which are not suggested by either party now to have (nor, in my view, did they potentially ever have) any testamentary effect. Whether or not the Notes formed part of the 2012 will cannot assist in deciding whether the Letter of Wishes forms part of the Will (of 2013). As I have already noted, this issue turns upon the question of whether or not the Letter of Wishes was written before the Will was executed.

[45]In the absence of any testimony or extraneous evidence upon the question, it has to be decided by reference to the terms of the Will and Letter of Wishes alone. Mrs Preston recognises that Mrs Davey bears the onus of proof on this question but submits that their terms discharge that burden and that, in the absence of such further evidence, they justify the inference that the Letter of Wishes was written before the Will was executed.

[46]I recognise that the burden upon Mrs Davey means that the court needs to be satisfied on the balance of probabilities that the Letter of Wishes was created before the Will was signed and witnessed, when it is of course open to the court to conclude that it cannot form any conclusion either way upon the order of these events.

[47]In my judgment, there is here a proper basis for inferring that the Letter of Wishes was in existence at the time the Will was executed and, on that basis, deciding that the first and second conditions for incorporating it into the Will are satisfied (and, with them, the third condition also in the light of the Claimants’ position).

[48]I conclude the Letter of Wishes was a pre-existing document by reference to the following: i) the fact that the two documents bear the same date. This fact (affirmed by the Deceased’s signature of each of them on that date) eliminates any knock-out point against the first condition being satisfied and leaves open the entirely credible scenario that the Deceased prepared the two manuscript documents in one sitting. Whether or not she then signed the Letter of Wishes before waiting to sign the Will in the presence of witnesses is irrelevant to the question of its incorporation as its significance as a document for these purposes does not turn upon it also having been signed first; ii) the Deceased’s reference to the Letter of Wishes in the Will using the definite article; iii) the important fourth reference in the Will to the Letter of Wishes (see paragraph 21 above) using the present tense in describing it as an attachment to the Will; and iv) the equally important heading to the Letter of Wishes which describes itself as:

“Attachment to my Will dated Sunday 17 March Two Thousand and Thirteen”

. Like the fourth reference in the Will, this clearly indicates that the Letter of Wishes already existed when she executed the Will and was not, instead, a postscript to which she turned only once she had made the Will earlier that day.

[49]I therefore conclude that the Letter of Wishes is incorporated in the Will.

What does the Will provide?

[50]On the basis that the Will incorporates the Letter of Wishes, but not the Notes, I now turn to the questions posed within Issue 1(c).

[51]I approach these questions applying the principles of construction which have been authoritatively expounded by the Supreme Court in Marley v Rawlings

[2015] AC 129

where (per Lord Neuberger) the court unanimously held as follows:

“19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. […] 20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. […] 23. […] the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should “place [itself] in [the testator's] arm-chair”, is consistent with the approach of interpretation by reference to the factual context. 24. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act (“section 21”). Section 21 is headed “Interpretation of wills—general rules as to evidence”, and is in the following terms: “(1) This section applies to a will— (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. “(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.” 25. In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that “evidence” is admissible when construing a will, and that that includes the “surrounding circumstances”

. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question. 26. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator's actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).” “(1) This section applies to a will— (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. “(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.”

[52]In the context of this exercise of assuming the place of the testatrix’s armchair, by reference to the situation in which she found herself in March 2013, Mr Hewitt also cited the decision of the Privy Council in Sammut v Manzi

[2009] 1 WLR 1834

, [6], where the citation of decided cases, involving decisions upon wording which might bear some similarity to that under consideration, was strongly discouraged by the Board. Instead, the starting point should be to consider the natural meaning of the words without reference to authority. As it happens, Mrs Preston did not seek to persuade me of her case on the issues of construction by reference to any such fact-specific authority.

[53]The first question (Issue 1(c)(i)) is whether the Will, through the Letter of Wishes, gives Mrs Davey a legally enforceable pecuniary legacy of £95,000 and, if so, when is it payable and by whom.

[54]The Letter of Wishes provides as follows in relation to the £95,000:

“(1) Gillian A Davey may receive from the Trust Fund/Charity when she is widowed and not before £95,000 if there is sufficient funds. In the event of a divorce she may receive £5,000 out of the £95,000 towards costs. The remaining £90,000 or thereabouts will be advanced on the condition that should she co-habit or remarry Malcolm Davey the £90,000 be refunded immediately into the Trust Fund.”

[55]Mrs Preston submits that this wording does give Mrs Davey an entitlement to £95,000 in the event of her widowhood. She says that the provision is to be analysed as providing for either(i) vesting (in the Charity) subject to divesting in the event of Mrs Davey’s widowhood or, alternatively,

(ii) as a contingent legacy, the payment of which is conditional upon widowhood.

[56]In relation to these alternatives, I should say that neither party sought to make any point about the Charity not being able to part with the £95,000 at some future point in time, having regard to the constitution of JHWT or (more likely) the CIO. I had mentioned to counsel, both in this context and in relation to Issue 3, that the constitutional documents of the Charity were not before the court. It does seem (from correspondence in 2015 and 2016 over whether or not Mrs Davey should be a trustee of the Charity) that the Charity Commission were well aware of Mrs Davey’s potential claim which, if successful, would come at the expense of the Charity. And the parties’ position on this particular aspect is, of course, entirely consistent with me being asked to construe the Will as it took effect upon the Deceased’s death, rather than by reference to any subsequent events, decisions or charitable registrations which might inhibit that exercise.

[57]It will be seen that divorce as widowhood was also identified as a trigger for any entitlement that does arise, subject to what might be described as the condition subsequent, or defeasant, of remarriage to Mr Davey or co-habitation with him (or possibly with anyone else). Mrs Preston did not press her client’s entitlement in the eventuality of a future divorce. I note that Ms Quint’s Opinion of October 2013 had raised the possibility that the provision might be void on the ground of public policy in that it discourages marriage but the parties did not address me on that potential ground of challenge to the validity of the provision. It would in my judgment be at odds with the approach in Marley v Rawlings for me to ignore this additional wording within the same dispositive provision that I am required to construe and I therefore have regard to it, on the process of interpretation, without making any assumption as to whether or not there could be substantive grounds for challenging any divorce-based entitlement which it might otherwise confer.

[58]Mr Hewitt, on the other hand, submits the language of the Letter of Wishes is precatory and cannot be said to give rise to an entitlement to the £95,000. He points out that the document is entitled “Letter of wishes” (emphasis added) and that the language is that Mrs Davey “may receive” the sum, not that she “shall” do so (or other firm language which would indicate a legally binding obligation). Mr Hewitt says this precatory language can be contrasted with the wording the Deceased chose to use in relation to the legacies she included in the Will itself (including one of £5,000 to Mrs Davey herself), which is:

“I give the following free of inheritance tax to the following individuals”

. He points out that the same, non-binding word “may” is used in relation to Mrs Davey’s contemplated entitlement in the event of divorce.

[59]The language of the Letter of Wishes is also now to be contrasted with the provision for a further £95,000 to Mrs Davey contained in the 2012 will as set out in paragraph 26 above. Mr Hewitt observes that the 2012 will, under which the £95,000 was to be held in trust until widowhood, was a true contingent legacy.

[60]In response to these points Mrs Preston submitted that the language of the Will as a whole (incorporating the Letter of Wishes) was not precatory in relation to the £95,000. She relied upon the references within the Will to the Letter of Wishes being in language which was mandatory rather than permissive and says that the “may receive” language went to the question of timing and not to her client’s underlying entitlement.

[61]In relation to that last point, the timing of any receipt triggered by widowhood, I asked Mrs Preston what the position would be if there were not “sufficient funds” with which to pay the £95,000 when that event occurred. Her client obviously has to recognise that the proviso to any entitlement is clearly stipulated to be conditional upon a sufficiency of funds. Mrs Preston’s position (whether the analysis of the bequest was that of a vesting/divesting or a contingent legacy) was that her client took the risk of the Charity trustees expending funds in the meantime. She did not contend that there would be any recourse against the Charity, or its trustees, for her client’s entitlement abating or even being wholly undermined in this way, in fact quite the contrary. But she did contend that the £95,000 figure was not an all or nothing one, so that if there was a lesser sum available to the Charity to pay Mrs Davey then she would be entitled to that.

[62]In my judgment the precarious nature of Mrs Davey’s entitlement in this respect almost by itself provides the negative answer to Issue 1(c)(i). On Mrs Preston’s analysis that this is a provision for vesting subject to divestment, only the vesting in the Charity seems clear and its ability to spend at the expense of Mrs Davey shows that the notion of the Charity being “divested” of the £95,000 (or any part of it) is an illusory one. If Mrs Davey was entitled to an enforceable pecuniary legacy then one would have thought that she should have some recourse against those who could in the meantime act (perfectly properly so far as the Charity’s own interests are concerned) to frustrate it.

[63]The indication against any enforceable entitlement which emerges from the proviso about sufficiency of funds is further reinforced by the language that she “may” (or, therefore, might) receive the £95,000 upon widowhood, or divorce. Taken together, the two confirm that Mrs Davey has no contingent entitlement to that sum. Instead, the language of the Letter of Wishes means that any expectation she might have is one that is vulnerable to the actions, distributions and general financial fortunes of the Charity in the meantime. Although Mrs Preston contends for an implied abatement of the sum, in the event of insufficiency of funds, the Letter of Wishes does not expressly contemplate that result by incorporating additional words such as “…. or so much thereof as such funds permit”. Had it done so then, it might be argued, that could be a pointer towards Mrs Davey being “entitled” to something (not exceeding £95,000).

[64]Mr Hewitt submits that the absence of any such provision (or, he says, grounds for abatement) is a further indication that the provision in relation to the full amount of £95,000 is not a pecuniary legacy. Of course, there is no mention of possible abatement in connection with the legacies totalling £129,500 for which the Will clearly does provide; and I would have thought that relatively few testators seek to anticipate, pessimistically, the impact of the Administration of Estates Act 1925 in the event that the size of their free estate proves not to be a match for their hoped-for generosity. Nevertheless, and even allowing for my decision on Issue 1(a), the basic point remains that the provision for the £95,000 does not appear alongside those legacies (including the one of £5,000 for Mrs Davey). And unlike the abatement provided for by statute which is directed to an insufficiency of assets in the hands of the executors as a result of unavoidable costs and liabilities taking priority over the legacies, the depletion of the available funds to pay the £95,000 can (and probably would) arise as a result of discretionary decisions of the Charity trustees after their receipt of the residuary estate from the executors.

[65]Mr Hewitt also posed the rhetorical question as to how and by whom the issue of “sufficient funds” was to be determined if, say, the Charity held property worth in excess of £95,000 but little cash. Would it have to sell or mortgage the property in order to pay the legacy? I agree with him that the answer is wholly unclear and the fact that the question arises shows that Mrs Davey’s receipt of the sum would derive not from a clear (albeit contingent) bequest made by the Deceased but, instead, would effectively be something within the gift of the Charity trustees. It is to the trustees of the charitable will trust that the Letter of Wishes is addressed (the fourth reference to it in the Will being the one which requires their decisions to be unanimous and in accordance with the Letter of Wishes). Even on Mrs Preston’s argument, those trustees would have to decide, either purposefully or indirectly through their actions in relation to the charitable objects, to preserve “sufficient funds” so that Mrs Davey might be in the position to receive the £95,000 (or some of it). The contrast with the provisions of the 2012 will, where the £95,000 was to be ring-fenced and held on trust “until such time as she becomes a widow” could not be clearer. Further, the Deceased expressly recognised in the Notes that she had by that earlier will made a “bequest to Gill to hold until she is widowed”.

[66]When advising in 2013 Ms Quint (having raised the public policy point) said that any payment to Mrs Davey would “be open to the objection that Mrs Davey, who does not suffer from any facial disfigurement, is not qualified to be a beneficiary of the intended charity”. Of course, the question I have to decide is not whether Mrs Davey falls within the class of persons who might benefit from what is now the Charity, having regard to its charitable objects, but whether she will have a claim at the expense of the Charity should she become a widow or divorced. Nevertheless, the assumption that counsel appears to have made about the relevant dispositive power being that of the charity trustees, if only it could be properly exercised in Mrs Davey’s favour, does reinforce the basic point that the Will does not create a binding entitlement arising upon the death of the Deceased. Compare my observation in paragraph 33 above.

[67]In my judgment, therefore, the Will does not provide for a legally enforceable legacy of £95,000 (or any lesser sum) to Mrs Davey.

[68]The next question over the meaning of the Will (Issue 1(c)(ii)) is whether or not the directions given in the Letter of Wishes in relation to the fields owned by the Deceased impose binding obligations, and if so upon whom.

[69]As I have already noted, the Letter of Wishes is addressed to the trustees of the charitable will trust and its terms are predicated upon the “Transfer to Trustees” by the executors, for which the concluding paragraph of the Will provides, having taken place. If its provisions in relation to the fields (or any part of those provisions) is binding, it will be binding upon the trustees of the Charity.

[70]Although Issue 1(c)(ii) focuses upon the terms of the Letter of Wishes, the Will itself made independent reference to the fields at Little Treglidgwith. The Will (again presupposing the fields were in the control of the trustees of the will trust) states as follows:

“….. the fields number 8943 adjacent to the road with the triangular area as a passing place never to be sold to remain in the control of the trustees together with field numbers 9138 adjacent to road and 7427 adjacent to Oakview and my instructions given in the letter of wishes.”

[71]As for the Letter of Wishes, this is to be read in the light of the fourth reference to it in the Will (quoted in paragraph 21 above). In addressing both the fields at Little Treglidgwith and Wendron (i.e. The Fringes) it states:

“2. The fields at Little Treglidgwith can be sold off only on the following conditions: The field adjacent to Oakview to be split ½ sold to Oakview at a ⅓rd of the current value of their house known as ransom land the remainder sold back to Little Treglidgwith owners also as ransom land or rented to them Oakview to pay for dividing the field. The fields across the road from Little Treglidgwith. The charity could try for planning permission and then sell, they can be rented but ensure you keep controlling rights over the road and what they can and cannot do together with regular maintenance. The field with the triangular piece, planning permission may be sort [sic] to build house for a trustee or the charity. This to remain forever in the control and ownership of the charity/Trustees. Not to be sold, existing rights to be maintained. The triangular piece NEVER TO BE TARMACED chippings only.” 3. The fields at Wendron held in the Trust/Charity. Planning permission may be sought for the charity to build two houses one either side with the existing gateways. Either for a trustee to live in to caretake The Fringes or as an additional property to share, rent, or contribute towards the Charity. This to be built first in the side where the stables are as I will be buried in the field. The far side planning permission sought for a house and sold to fund the house to be built with stables. Discuss the options and come to a sensible decision.”

[72]The Claimants’ position in relation to both paragraphs 2 and 3 is that the court should treat them as an expression of the Deceased’s wishes rather than as imposing legally binding obligations.

[73]I have already explained by way of background that the fields at Little Treglidgwith have already been sold by the executors on terms, as I understand the position, that did not meet any of the “conditions” specified in the Letter of Wishes. Issue 1(c)(ii) therefore raises an academic question because the Charity trustees cannot now comply with any instruction to retain the fields that might otherwise have been binding upon them. I should add that Mrs Preston said that Mrs Davey made no complaint about them having been sold. She said that, although the Letter of Wishes (attaching “conditions” to any sale) appeared to begin in mandatory terms, “nobody is making any complaint about their sale”. Mrs Preston also recognised that paragraph 2 of the Letter of Wishes continued in more permissive terms. She also observed that it was difficult to see that any loss has arisen as a result of them having been sold, when arguably they should not have been, nor why the executors would not be able to invoke the relieving provisions of section 61 of the Trustee Act 1925.

[74]In these circumstances, it seems to me to be strictly unnecessary for me to answer Issue 1(c)(ii) so far as the fields at Little Treglidgwith are concerned. I did remark to Mr Hewitt that this was not an application by the executors under the Public Trustee v Cooper jurisdiction, seeking (either prospectively or retrospectively) the court’s approval of their sale and the court has no information about the decision to sell those fields, nor of the terms upon which they were sold other than that they realised approximately £420,000. I am asked to resolve an issue of construction which may loosely be said to relate to the potential absence of a power to sell, rather than to address the merits of the exercise of a power which is presumed to exist. I am also conscious none of the trustees of the charitable will trust – in whose favour the Deceased intended the in specie transfer of the fields - are before the court (in that capacity) in these proceedings.

[75]Nevertheless, I am persuaded to answer Issue 1(c)(ii) in relation to the fields at Little Treglidgwith so far as it may assist the parties or the Charity trustees. I do so by deciding that the Letter of Wishes does not impose legally binding obligations. That is because of the simple point that an in specie transfer of those fields cannot now take place. In those circumstances, the terms of the Will and Letter of Wishes in this regard cannot be binding upon those who might otherwise have been bound. Immediately after the words quoted in paragraph 71 above, the Deceased continued with “Any residual monies after my bequests is to be paid into the Charity/Trust know [sic] as the Jepson-Hearn Trust.” It is residual monies that the Charity trustees will now receive, not the parcels of land referred to immediately before.

[76]Although it does not form the basis of my decision, I would observe that, had the Charity trustees found themselves in the position of having received the fields into the trust and then later making a Public Trustee v Cooper application, because of a need to sell some or all of them on terms which departed from the Deceased’s Letter of Wishes to them and any doubt in their minds over the exercise of any power otherwise to do so under the Charity’s constitution or statute, I can see there might have been good reason for acceding to an otherwise meritorious application. I say that because the “conditions” the Deceased sought to attach to what I might describe as an “excepted sale” appear to have been unduly prescriptive and (given the need for third party agreement on both the sale and purchase and planning fronts) probably unworkable.

[77]As to the fields at The Fringes (or Wendron), in contrast to those at Little Treglidgwith the Will itself did not seek to impose any restrictions in relation to the retention of those fields. The Will only specifically addressed the house at The Fringes once transferred to the trustees (“to continue as a holiday let but self-financing with out of season holiday for charity”) but it arguably had the wider property in mind when referring to “my letter of wishes of what the trustees can and cannot do”. The provisions of the Letter of Wishes in relation to the fields are as set out in paragraph 71 above.

[78]I have already noted that Mr Hewitt’s submission on behalf of the Claimants was that the language of paragraph 3 of the Letter of Wishes was clearly permissive rather than mandatory. On behalf of Mrs Davey, Mrs Preston’s position was to the same effect. She said that, in contrast to the initial mandatory language of the preceding paragraph, the non-binding nature of paragraph 3 was illustrated most clearly by the closing words “Discuss the options and come to a sensible decision”.

[79]In my judgment it is clear that the Letter of Wishes does not operate to impose legally binding obligations in relation to the fields at The Fringes. The absence of any legally binding obligation becomes obvious from the inability to formulate one sensibly out the language used within it. In contrast to the position in relation to the fields at Little Treglidgwith (where the Deceased sought to prohibit any sale of the triangular piece and to impose conditions upon any sale of the remainder) the Letter of Wishes in fact makes no reference as to what the trustees “cannot do”. As to what they “can do”, the answer is that they “may” seek planning permission for two houses and in that regard they might, or perhaps even must, discuss the options with a view to coming to a sensible (and, as required by the Will, unanimous) decision. Any obligation to discuss the making of a planning permission application, which the trustees are not compelled to make and the nature of which is outlined in the most rudimentary terms, is no more binding or enforceable than an agreement to agree.

[80]In the circumstances, the answer to Issue 1(c)(ii) in relation to all the fields which were owned by the Deceased at her death is that the Letter of Wishes does not impose legally binding obligations.

[81]The third question of interpretation over the meaning and effect of the Notes (Issue 1(c)(iii)) has fallen away because the parties are agreed that the Notes have no testamentary effect (and that Issue 1(b) is to be answered as explained above).

Issue 2: Distribution to the Charity

[82]The second of the Issues is whether the Deceased’s residuary estate (including the property comprising The Fringes) should be distributed to either the JHWT or the CIO.

[83]Mrs Taulbut’s first witness statement explains that, these two having been registered, the intention is that the JHWT should receive the residue from the estate and then distribute it the CIO as the “active” charity.

[84]The Claimants’ position on this issue is that, the administration of the estate being complete, the executors should now assent the residue to the Charity. Indeed, that has been their position for some time. Freeths prepared a memorandum of appropriation in favour of the JHWT, for signature by all four executors, in December 2015 once it was clear that HMRC had accepted the claim for charity exemption from inheritance tax and the liabilities of the estate were therefore clear. However, Mrs Davey’s agreement to that appropriation has not been forthcoming.

[85]In these proceedings Mrs Davey continues to oppose the distribution to the Charity and contends that the answer to Issue 2 should be “no”. That is because neither the JHWT nor the CIO has as its trustees the persons named as trustees of the will trust in the Will. In particular, Mrs Davey is not a trustee of the Charity as the Will said she should become. In these circumstances, Mrs Davey says the Charity is not a proper constitution of the trust created by the Will and should not receive the residuary estate. I should also note that (as appears from Mrs Preston’s Skeleton Argument) Mrs Davey also says that there cannot be a distribution until the administration of the estate has been concluded and that first requires the court’s determination of the issue over the incorporation of the Letter of Wishes.

[86]Mrs Davey’s position on this issue is clearly linked with her position on Issue 5 - whether or not she should be appointed as trustee of either or both of the JHWT or the CIO - and that issue, in turn, is (or certainly up to the date of this judgment has been) linked to the Issue 1(c), so far as Mrs Davey’s potential claim upon the £95,000 is concerned. As the parties’ respective position has produced impasse in the administration of the estate, Issue 2 also serves to underpin, alongside Issue 3 below, the questions over the ongoing personal representation of the estate which are raised by Issues 4 and 6.

[87]I have already noted that the “executor’s year” within which those administering the estate may properly take shelter before distributing has long since expired. The Deceased died five years ago and probate was granted in August 2014. In these circumstances one would expect there to be compelling reasons for the court to sanction a situation where the distribution of the residuary estate is held up further.

[88]In my judgment there are no such reasons here and the reason advanced by Mrs Davey is a bad one. In putting it forward she demonstrates her willingness to elevate issues of personality - the identity of the individual trustees of the JHWT (as the immediate recipient trust) - over the importance of the office of trustee. The latter is of course a fiduciary position which is to be served by trustees together in the interests of the beneficiaries (as explained further in the context of Issues 4 and 6 below) and is a position of obligation rather than entitlement.

[89]In circumstances where Issue 5 raises the separate question of whether or not Mrs Davey should become a trustee of either or both of the JHWT or the CIO, her stance on Issue 2 comes close to her saying that the court should only sanction the distribution if it agrees to her becoming a trustee of the Charity. But, however Issue 5 is to be determined, it is obvious that the future identity of the trustees should not govern or even influence the anterior and more fundamental question of whether or not the trust should receive the property intended for it. Just as an otherwise valid trust should not fail for want of a trustee so too the transfer of the trust property to the trust should not be frustrated by a dispute about who are to be its trustees, at least in a case where there is no doubt over the existing trustees’ willingness and capacity to act and to observe the terms of the trust. Any other conclusion must involve putting the interests of the putative fiduciary resisting the transfer above the interests of the intended beneficiaries of the trust.

[90]There is no question here of the residuary estate being distributed otherwise than as the Deceased intended. So far as it lay within her power, the charitable will trust created by the terms of the Will became properly constituted when the Will was admitted to probate. The Will expressly contemplated an application for registration and the Charity Commission have registered the two charities on the basis that, together, they will fulfil its charitable purpose. It is obviously right that the Charity should receive the trust property intended for it, whoever might now be or in the future become its trustees.

[91]I therefore answer Issue 2 by saying the residuary estate (including The Fringes) should be now distributed to the JHWT.

Issue 3: The Fringes

[92]The third of the Issues is whether The Fringes should be sold and, if so, should its proceeds of sale be distributed to either JHWT or the CIO and/or to the Katie Piper Foundation.

[93]The Katie Piper Foundation is identified in the final paragraph of the Letter of Wishes as the potential recipient of a share of the proceeds of any sale of The Fringes. The Katie Piper Foundation is a registered charity which promotes in particular the effective treatment of burns within the wider objects of the relief of sickness and disability of all kinds. Having referred in paragraph 3 of the letter to the fields at The Fringes (in the terms quoted in paragraph 71 above) and then to contemplated replacement of the trustees, the Deceased concluded with the following (where the “this” appears to relate to the Charity):

“One condition if at any time this is amalgamated with the Katie Piper Foundation retaining the Jepsen-Hearn Charity the Trustees must ensure the house is on loan for their use if sold the remaining trustees to distribute the funds fairly between themselves and the Katie Piper Foundation.”

[94]By this provision the Deceased appears to have had in mind the possibility of some form of “merger” of the Charity with the Katie Piper Foundation under which the Charity would still retain some form of separate identity.

[95]In answering Issue 2, which relates to the residuary estate including The Fringes, I have already decided that the property should be transferred to JHWT. However, Issue 3 still has meaning so far as the Charity’s intended dealing with the property is concerned.

[96]I again repeat the point that this is not an application by the Charity trustees for the court’s guidance as to how they should administer this part of the trust property once it comes under their control, by reference to any fiduciary powers or constraints that are said to justify recourse to the court. Instead, this issue (raising a question that was not identified by the terms of the Part 8 Claim or by Mrs Davey’s Acknowledgment in these proceedings between executors) is a discrete one which arises out the more general inquiry over what the Will means. I therefore propose to answer it on that basis, by reference to the provisions of the Will and recognising that the Charity Commission has registered the existence of the Charity separate from the Katie Piper Foundation, without attempting to circumscribe how its trustees might deal with The Fringes in the future. In other words, the question is whether The Fringes should now be sold and, if so, its proceeds divided to both charities.

[97]On that basis, I make no findings in relation to the matters addressed in the witness statement of Mr Bushnell who makes positive observations about the viability of letting out The Fringes for at least part of the year, so as to produce a rental income, after renovation costs in the region of £100,000 have been incurred in putting the property into a lettable state. Those are matters for consideration (at least in the first instance) by the Charity trustees. As Mr Hewitt submitted, it is not for the claimant executors to prove that the Charity is financially sound. They simply need to know whether they can transfer the property, as it presently stands, to the JHWT.

[98]In my judgment, the answer to Issue 3 is clearly “no”. The Will contemplates the transfer of The Fringes in specie and, thereafter, it being let out as self-financing holiday let as Mr Bushnell has sought to explain is achievable. Mrs Davey doubts that view and says that the retention of The Fringes is not a financially viable course for the Charity to adopt. Her position on this question is clearly linked to her complaint that she has been excluded from the trusteeship of the Charity and what Mrs Preston submits has been a lack of discussion, or consideration in any detail, by either the executors or the will trustees. To a certain extent, therefore, this issue is bound up with the circumstances that have generated Issues 4, 5 and 6. But it is not for me to decide what the consensus or majority view might be at any trustees’ meeting deliberating the point.

[99]What I can and do decide is that the terms of the Will do not compel a sale. Nor has there been any amalgamation of the charitable will trust with the Katie Piper Foundation that might justify a decision to divide the proceeds from any sale that might take place. That the answer to Issue 3 is in the negative is further confirmed by Mrs Davey’s own evidence (in her third witness statement) about a conversation she had with the Deceased during her lifetime in which she, the Deceased, disagreed with Mrs Davey’s view that the retention of The Fringes as a self-financing holiday let would not be financially viable. The terms of the Will reflect the Deceased’s contrary view.

Issues 4, 5 and 6: Trusteeship

[100]These issues relate to the continued representation of the Deceased’s estate and of the Charity: who should be the executors and who should be the trustees?

[101]In his skeleton argument and submissions Mr Hewitt addressed the three issues together, whereas Mrs Preston addressed Issue 5 (the trusteeship of the Charity) separately. In my judgment it is convenient to deal with all three issues together, not least because the court must hope that the administration of the estate can – in the light of its determination of the other Issues – now be concluded relatively swiftly. That should mean that any argument over the future personal representation of the estate becomes largely academic.

[102]There is, however, one potential glitch in the way of such hope which surfaced at the hearing. It relates to the point that, although not a trustee of either the JHWT or the CIO, as registered with the Charity Commission, Mrs Davey is named in the Will as a trustee of the will trust. This indisputable fact, coupled with the provision in the Will that the named trustees should act unanimously, forms the fundamental basis of Mrs Davey’s complaint that she, as a nominated will trustee, has been wrongly excluded from discussions about the Charity and its way forward. The communication between the Charity Commission and Mrs Davey in January 2016, which I mention below, proceeded on the basis that she should consider resigning her trusteeship of the will trust even though she had not become a trustee of either registered charity.

[103]Mrs Davey’s position that the executors would be acting contrary to the provisions of the Will in effecting a transfer of the residuary estate to one of those registered entities (JHWT) rather than to the will trust of which she is one of the named trustees therefore prompted Mr Hewitt to suggest that the court could remove Mrs Davey as a trustee of the will trust. He invoked the reference in the Claim Form to “further or other relief” even though the prayer only expressly referred to her removal as executrix. He said the grounds for her removal from both positions were the same. Mrs Preston responded by saying there was no application to remove her client as a trustee under the Will and it was now much too late to make one.

[104]The potential glitch in the way of an early conclusion to the administration of the estate therefore boils down to the question of whether or not there is a need for the residuary estate to pass momentarily through the hands of the trustees of the will, before becoming vested in the Charity, and, if so, whether the Deceased’s stipulation that they should act unanimously means that Mrs Davey could frustrate that end.

[105]So far as the competing claims for removal from executorship are concerned (Issues 4 and 6) the Court has the power to remove personal representatives under section 50(1)(b) of the Administration of Justice Act 1985. Any appointment of Mrs Davey as a trustee of the JHWT or the CIO (Issue 5) would be pursuant to the court’s power under section 41 of the Trustee Act 1925.

[106]Whereas section 41 of the 1925 Act identifies “expediency” as the ground for the exercise of the power, section 50 of the 1985 Act refers simply refers to the existence of the court’s discretion to remove a personal representative. There was, however, no issue between the parties over the governing principle.

[107]Mr Hewitt cited the decision of the Privy Council in Letterstedt v Broers

(1884) 9 App Cas 371

, where, in the context of an application to remove trustees, it held as follows (at 387):

“In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on details often of great nicety. But they proceed to look carefully into the circumstances of the case.”

[108]In Kershaw v Micklethwaite

[2011] WTLR 413

, [9], Newey J (as he then was, and following the decision of Lewison J in Thomas & Agnes Carvel Foundation v Carvel

[2007] WTLR 1297

) held that the same approach applies in relation to the removal of an executor. Newey J observed that the test was no more relaxed in the case of an executor as opposed to a trustee and, if anything, the fact that the executor’s role was likely to be more transient and equipped with less discretionary powers might indicate that the court would be less ready to remove an executor than a trustee.

[109]The guiding principle for the court on any application to remove a personal representative under section 50 must therefore be to look at the particular circumstances giving rise to it by reference to the welfare of the beneficiaries. That inquiry is likely to involve testing whether or not those circumstances have operated to disrupt the due and proper administration of the estate by which their interests are intended to be served and, if so, consideration of the acts or omissions of the respondent representative that are said to have produced that situation. Obviously, in a case where the personal representative is an original named executor in the Will, the court must bear in mind that he or she was specifically chosen by the testator to carry out the testamentary wishes. Mrs Davey says she had known the Deceased for 30 years and regarded her as her best friend. But all personal representatives are potentially within the scope of section 50 and when grounds exist for exercising the statutory jurisdiction it will be in circumstances where the deceased’s choice has been respected but fulfilment of those wishes has later been impeded.

[110]In Angus v Emmott

[2010] WTLR 531

at [108] Mr Richard Snowden QC, then sitting as a deputy judge of the Chancery Division, cited with approval the following passage from Williams, Mortimer & Sunnucks (which is now at 62-15 of the 20th edition):

“if the administration has come to a standstill because relations between the personal representatives have broken down, or relations between the representatives and the beneficiaries have broken down, the court will ordinarily remove the personal representatives and appoint new ones to enable the administration to be completed. It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal. If, for whatever reason, (such as clash of personalities, or the lack of confidence in the personal representative by the beneficiaries, even if unjustified) it has become impossible or difficult for the administration to be completed by an existing personal representative, then an order for his removal will usually be made.”

[111]In the present case the administration has, regrettably, been at a standstill since the memorandum of appropriation was prepared, but not then acted upon, in December 2015. Since then the claimant executors and Mrs Davey have been in dispute so that the only positive step on which they have together been engaged towards concluding the administration is this present litigation.

[112]Mrs Davey cannot be blamed for the existence of this litigation which involves genuine issues over the scope and meaning of the Will and where the language used by the Deceased has produced some issues worthy of a “Buckton category 1” case. On other issues where the Deceased’s intentions appear less open to doubt (Issues 2 and 3) I also recognise that it is Mrs Davey’s position that it is the claimant executors who, in proceeding to register the JHWT and the CIO without her agreement and without her as co-trustee, are open to criticism.

[113]However, in my judgment Mrs Davey’s removal as an executrix is justified by the stance she has adopted on what has become Issue 2 and also Issue 3 within these proceedings.

[114]I have already observed, in determining Issue 2, that Mrs Davy’s position has involved an assertion of personal interest over the interests of the beneficiaries of the estate. Even if her “claim” upon the estate could be said to be in relation to the ongoing office of trustee with no complications of any conflict of interest in relation to the £95,000, it can be seen that Mrs Davey’s refusal to agree the memorandum of appropriation in favour of the JHWT, proposed in December 2015, has not been based on any reasonable grounds. There is no good reason why the Charity should not have received the property intended for it by the Deceased long before now, even if one or more of the other Issues (aside from Issue 2) might have remained to be determined by the Court.

[115]In fact, Mrs Davey’s refusal to join in the appropriation in favour of the Charity cannot be divorced from her conflicting personal financial interest. By the concluding paragraph of an attachment to an email to Freeths LLP dated 3 January 2016 (which intimated a claim against the solicitors, the Charity Commission and to “my inheritance of £95,000 unencumbered by the requirement to divorce”) Mrs Davey said:

“I would be willing to defer litigation in favour of an agreed solution which would of course avoid dissipation of funds in legal costs. If this is the case I would be prepared to forfeit all claims above, resign as executor, forfeit my right to become a trustee, sign a Trustee Change form, allow an Order to made [sic] under s. 69(1)(b) of the Charities Act 2011 all parties require and sign off Finalising the Administration and Distribution of Paula’s Estate provided my inheritance is paid promptly – I could manage my part by the middle of next week if that helps finalise matters faster.”

[116]So far as the condition attached to the signing off on the administration and distribution of the residuary estate was concerned, this message from Mrs Davey perfectly encapsulated the clear conflict which she faced between her own interests and those of the Charity. And, if Mrs Davey did not know it before, by no later than Mrs Maguire’s email of 29 January 2016 was it made plain to her that it was an unacceptable one. Having pointed out the Charity Commission’s powers (“not powers we use lightly”) to remove a trustee under section 80 of the Charities Act 2011 on the specified grounds, Mrs Maguire’s email included the following clear statements:

“Whether or not you decide to act as a trustee will not affect your potential claim on the estate and cannot be conditional on receiving any payment from the estate. Whilst any claims on the estate will clearly have an impact on the amount of money available to the charity, the two decisions are, and must remain entirely separate.” “The potential claim that you have on the estate places you in a position of conflict. Given that the terms of the trust created by the will require the trustees to make unanimous decisions makes this conflict [sic] difficult to manage effectively.” “With regard to the registration of [the CIO], the decision to register any organisation is based solely on whether it is exclusively charitable in law. You have suggested that various provisions within the will are unworkable and it may be that the trustees will need to take action and may require further consents from us to deal with those matters. However, these are matters affecting the administration of the charity and do not impact on whether or not a charity exists.”

[117]Yet, in these subsequent proceedings up to and including the disposal hearing, Mrs Davey has continued to contend otherwise on Issues 2 and 3. She has, unacceptably in my judgment, put the cart before the horse on both issues when she should have appreciated, as a personal representative of the estate, that there was no place for such an obstacle created by her own personal interest or contention. On Issue 2, and less directly in connection with Issue 3, it appears to me that it is Mrs Davey, not the Claimants, who has failed to have sufficient regard to the executors’ oath (including the promise to administer the estate) which was made as long ago as June 2014.

[118]For the same reasons as support her removal as executrix, I am unpersuaded that Mrs Davey should become a trustee of either the JHWT or the CIO. In my judgment it would not be expedient to appoint her as such in circumstances where (although she will now have the court’s decision upon the competing claim to the £95,000) her attitude to actively supporting the best interests of the Charity, as registered, is really no clearer now than it was when she was being asked about it by the Charity Commission in January 2016 in the correspondence mentioned above.

[119]I should note that, in her concluding submission on behalf of Mrs Davey, Mrs Preston said that Mrs Davey would clearly respect the court’s determination of the other Issues if each of Issues 4 to 6 was resolved in her favour. Mrs Preston said that, in the light of the determination of the other matters, her client would co-operate with those who would then be her co-trustees of the Charity and that a professional person might be appointed alongside her as executor (she fairly met my observation that there was no charging clause in the Will, to lend a professional appetite to such an appointment, by reminding me of the provisions of sections 29 and 35(1) of the Trustee Act 2000).

[120]In considering this submission I recognise that Issue 1(c)(i) – over the £95,000 – was recognised by the parties to be a genuine issue arising for the court’s determination. Mrs Davey cannot be blamed for having been identified by the Deceased as the potential beneficiary of the £95,000. Now that the issue has been determined alongside Issues 2 and 3, the court can only hope that the administration is swiftly concluded so that the Charity acquires The Fringes and the cash residue so that the trustees of the CIO can soon be in a position to decide how that trust property should be invested, administered and/or distributed. Nevertheless, I reject Mrs Preston’s concluding submission. There is no basis nor any real purpose (given what I hope is the swift conclusion of the administration of the estate) for removing the Claimants as personal representatives; and, for the reason touched upon in the previous paragraph, doing so might involve unnecessary expense as well as further delay. As for the proposed appointment of Mrs Davey as a trustee of the Charity (or either registered entity) Mrs Davey’s overture comes far too late in the day, having regard to what I have said about her position on Issues 2 and 3, to give the court any solid grounds for confidence that the administration of the Charity would not be further impeded by her involvement as a trustee.

[121]I therefore answer Issue 4 with “yes” and Issues 5 and 6 with “no”.

[122]There remains the question (introduced at paragraphs 102 to 104 above) as to whether or not the court should also make an order removing Mrs Davey as a trustee of the will trust (as opposed to the Charity). I am not persuaded that is a necessary or appropriate step, particularly in the light of the general indication from Mrs Preston that her client will respect the court’s determination on other matters. Following the removal of Mrs Davey as an executrix the remaining three executors ought to be able to execute, in favour of the JHWT, a memorandum of appropriation in the same form as the one prepared in December 2015. In the light of the express provision in the Will that the will trust should be a registered charity, which the JHWT now is, such an appropriation would appear to be in accordance with the terms of the Will and one which would result in a proper discharge of the executors’ duties in relation to the residuary estate. I will, however, hear the parties further on this aspect in the event that either of them considers that the point would not be adequately covered by a provision in my Order that they should have liberty to apply on this or any matter that may arise in connection with its implementation.

Disposal

[123]In the light of my findings in this judgment and by reference to one matter upon which the parties are agreed and in my judgment correctly so (Issue 1(b)) I therefore answer the Issues as follows: Issue 1(a): Yes in relation to incorporation. Otherwise see Issue 1(c)(i)-(iii) below. Issue 1(b): No. Issue 1(c)(i): No. Issue 1(c)(ii): No Issue 1(c)(iii): No. Issue 2: Yes. Issue 3: No. Issue 4: Yes. Issue 5: No. Issue 6: No.