“……. Creation of a new Farming Partnership [Rosemary] hereby gives Malcolm.. a 50% share in the farming assets and business with effect from1st April 2009 . The gift includes 50% of the following farming assets; Livestock Feedstuffs Agricultural Machinery Tools & Equipment Cash in the Farm bank account Any farming debtors and creditors The gifted assets are to be part of a new farming partnership “Mrs RM and Mr MK Gill” with effect from1st April 2009 . The partners hold equal 50% shares. For the avoidance of doubt, the Freehold of Upper Latherford Farm, including the land, house and buildings remain in the sole possession of Mrs RM Gill. These assets do not form part of the farming partnership and are not part of the gift to Malcolm….. …..”
“My brother Malcolm has asked me to contact you to explain the basis of the new farming partnership between our mother and himself. Having recently seen the accounts, that you prepared, to31 March 2011 , we can see some issues that need to be corrected and would ask you to restate the accounts accordingly. As you will be aware our father sadly passed away on the28th March 2009 . Our mother gifted Malcolm 50% of the following farming assets with effect from1st April 2009 to start the new partnership between the two of them. Livestock Feedstuffs Agricultural Machinery Tools & Equipment Cash in the Farm bank account Any farming debtors and creditors For the avoidance of doubt, the freehold of Upper Latherford Farm, including the land, house and buildings remain in the sole possession of Mrs RM Gill. These assets do not form part of the farming partnership (hence we wouldn’t expect to see any farm buildings in the new partnership accounts). The partnership has the following features: There is no intention for mom to draw a salary from the partnership. It is the intention that Malcolm draws a salary, initially set at£12,000 pa, albeit subject to variation from time to time. Any profit or loss remaining after accounting for such salary will then be divided equally between the partners. Mom may make drawings from time to time to cover her living expenses but only to the extent that she has capital in the partnership and are not part of the gift to Malcolm. The farm account pays most of Mom’s household expenses (heating oil, Electric, Water, Insurance, Phone, car, general maintenance) which we estimate at£6,500 pa…….. Whilst the new farming partnership does not own any of the farm buildings in existence as at1st April 2009 , any new buildings or significant improvements paid for from the new farming partnership after1st April 2009 will be assets of the new partnership. (There haven’t been any so far). In summary, given the comments above, we would expect to see:- Opening capital of£88,278 (£133,684 less Farm buildings) as at1st April 2009 , split equally. A loss to have been recorded in each of 2010 and 2011 after accounting for Malcolm’s salary. Capital for both partners to have reduced due to losses, but Mom’s capital to have reduced further through drawings for household expenses. We would be grateful if the 2011 accounts could be restated on the basis described above and this methodology carried forward for the 2012 accounts in due course. ………”
“Re: Proprietary Estoppel Claim by Mr Malcolm Gill We have been instructed by Mr Malcolm Gill (herein referred to as "Malcolm") in relation to his proprietary estoppel claim for ownership of Upper Latherford Farm. We write this letter to you as the co-executor of the late Rosemary Martha Gill (herein referred to as "Mrs Gill")……….. Background Facts In September of 2012 Mrs Gill died leaving her entire estate, which previously had been co-owned with Mr Gerald Arthur Gill (herein referred to as "Mr Gill"), to her four children in equal shares, being Mr Adrian Gill, Malcolm, Mr Nigel Gill and Mrs Pam Robinson, Mrs Rosemary Gill's last will and testament being8 April 1997 . It is our client's assertion that he is the only sibling within the family to become a professional farmer and the only sibling to support his parents in their farming business. Furthermore from around 2008 Mr and Mrs Gill relied heavily upon Malcolm's support as he was the only sibling capable of offering substantive support. It is Malcolm's assertion that he has been working on Upper Latherford Farm (herein referred to as 'the farm') for in excess of thirty years. In approximately the year 2000 Mr Gill was diagnosed with prostate cancer and as a result of this Malcolm substantively increased his duties on the farm in order to help and support his parents. Malcolm accepts that in the first instance his primary focus was his car business; however, by 2005 the farm had become his primary business focus and over the next number of years the car business greatly reduced. From an early stage both Mr and Mrs Gill indicated their support for Malcolm to continue the farm as a working farm; for instance in the 1970s Mr Gill rented a second farm, being Landy Wood Farm for arable purposes. At this time Malcolm was 14 years of age and in order to support his father he regularly missed school to carry out the majority of tractor work on both farms. At this stage Mr Gill had indicated to Malcom that he was the farmer within the family. In or around 1982 Malcolm built his workshop on the farm with reassurances from both Mr and Mrs Gill that he would always be part of the farm and the farm would be his. During the 1990s Malcolm would regularly work at 2.00 am in relation to his car business so that he could finish early and go and work on the farm later on in the day. Over the years and particularly since the early 2000s Mr and Mrs Gill made a number of assertions which directly promised the entirety of the farm to Malcolm or insinuated that the farm was to be his upon their deaths. For instance, between September 1997 and 2001 when Malcolm was back living at the farm various conversations occurred in which it was suggested that the tannery be converted into a live in property. Malcolm asserts that these conversations arose as Mr and Mrs Gill did not want Malcolm to leave. On one occasion Mrs Gill asserted to our client in relation to converting the tannery “it will be yours one day, then you can do what you like with it”
“Re: Sale of Upper Latherford Farm Please take note that we have taken instructions from our client which are as follows: 1. Our client will cease to hold himself out as an Executor or act as an Executor. Our client confirms he will sign any document necessary for the disposal of the Estate's assets as required by the remaining Executor, Mr Adrian Gill.. If necessary our client will sign an undertaking to this effect. 2. Our client agrees to the immediate sale of Upper Latherford Farm. He proposes that the sale proceeds on the basis of Bagshaws' recent report. 3. Our client intends to vacate the farm as soon as reasonably practicable. All personal items shall be removed within 21 days and our client will cease trading from the farm within 21 days. In relation to farm machinery and farm animals, these will be removed within 6-8 weeks. 4. Our client accepts he is financially liable to the estate in relation to partnership assets. In addition to this he agrees to pay any rent which is lawfully due. We propose you particularise in full the extent of the financial liability our Client has in relation to partnership assets, interim rent or on any other basis. …….”
“Upper Latherford Farm Wolverhampton As you know the sale of Upper Latherford Farm cannot proceed until the question of the legal charge of Upper Latherford Farm by your parents to your grandmother dated6 August 1982 has been resolved. I have been discussing this with your solicitor, Kevin Lynch. He advised he held the original charge, and that you or he had access to other papers from your parents' business in the 1980's (which might contain evidence of repayment of the debts secured by the charge). Kevin Lynch was also aware that you had a conflict of interest in that you are one of your parents' personal representatives together with your brother, Adrian, and also (in your capacity as deputy Nora Mary Kirk who in turn was one of your grandmother's personal representatives) you are effectively one of your grandmother's personal representatives by default. It was suggested this could be resolved by you applying to the court for you to be discharged as Nora Kirk's deputy. I have attempted to resolve these issues with Kevin Lynch over the past month. The most email I received from him was that he was no longer instructed to incur any further time in correspondence or telephone conversations with me on these issues. Notwithstanding that the issues need to be resolved urgently to allow the sale of Upper Latherford Farm to proceed. I would be grateful if you could address the following points as soon as possible:- 1. The original legal charge of6 August 1982 (or a solicitor's certified copy) be supplied to me so I can update reference to it on the registered title of Upper Latherford Farm (currently only an uncertified copy has been produced). If the original is sent to me I will return it to you or whichever solicitors currently hold it once I have lodged a certified copy at the Land Registry 2. Confirm what papers you hold or have available from your parents' partnership and mother's estate and where these can be inspected. 3. Confirm what papers you have from Nora Kirk relating to your grandmother's estate; 4. That you agree that an application to the Court can be made by you and Adrian as your parents' personal representatives for the legal charge of6 August 1982 to be removed from the registers of title to Upper Latherford Farm. This could be on the basis that the debts secured by the charges have been repaid; or if no such evidence can be found or the Court is unwilling to make such an order on the evidence available then the sum equivalent to the secured debt and accrued interest on it is paid into Court to be held as a fund to discharge the debt secured by the charge and reference to the charge can be removed from the title to Upper Latherford Farm. The monies paid into Court can be distributed once it has been ascertained whether the debt secured by the charge has been repaid or not. 5. What steps you are taking for discharge of you as Nora Kirk's deputy. ……..”
“[27] The legal title to the farm is unregistered. In preparation for its conveyance it became apparent that included with the deeds to the farm is [the Legal Charge]…… Mrs M Kirk passed away in January 1987. The underlying£8,000 secured loan is very old and has almost certainly been redeemed either before Mrs M Kirk's death or during the administration of her estate. Miss Nora Kirk (daughter of Mrs M Kirk and aunt to the Claimants and Defendant) is an executrix and the primary beneficiary to Mrs M Kirk's estate. However Miss Kirk is now elderly and no longerhas mental capacity to conduct her own affairs so is unable to give receipt for it and enable the transactions for the sale of the farm to proceed. [28.] The Defendant is the court appointed deputy for Miss Kirk and has refused to give receipt on her behalf. Whether or not he was right to take that course, he has used the situation to cause yet more delay. On17th August 2017 after the Defendant indicated that he would not give receipt on behalf of Miss Kirk, his solicitors indicated that the Defendant would apply to remove himself as her deputy and would allow inspection of relevant papers in their possession, to help determine whether the underlying loan had been repaid. Over two months later this has still not occurred, despite an offer from the Claimants that cash sufficient to cover the original loan and accrued interest can be held in escrow pending clarification as to whether the loan has already been settled or not. [29.] As a result of this yet further delay there is now a very substantial risk that the sale of lots 1 and 2 will be lost. [30.] The continued delay caused by the Defendant, his untenable position of occupation of an office as deputy for someone who at present is maintaining a claim against the estate or will be the defendant to a claim that the Estate needs to bring, and the risk of losing the sale of the two most valuable parts of the farm, combined with the fact that the Defendant has already agreed to take no substantive actions as executor of the estate of the Deceased but simply to sign such documents as he is asked by me as his co-executor to sign, mean that he should be removed as an executor of the estate of the Deceased. ………”
“IT IS DECLARED THAT: 1. The property known as Upper Latherford Farm, Shareshill, Wolverhampton WV10 7DX and registered at HM Land Registry with the title number SF625094 is held by the Claimant legally and beneficially upon trust for the estate of Rosemary Martha Gill (Deceased) upon the terms of her last will dated8 April 1997 . AND BY CONSENT IT IS ORDERED THAT: AND BY CONSENT IT IS ORDERED THAT: 2. The counterclaim is dismissed. 3. The Defendant shall pay the Claimant's costs of the action in the amount of the Claimant's budgeted costs of£76,606.87 + VAT, being£91,928.24 . 4. The Claimant's said costs shall be paid by the Defendant by way of deduction from the Defendant's entitlement to share in the estate of Rosemary Martha Gill (Deceased).”
“After such a long delay in the administration of the Estate I am delighted to be able to advise you that I have now agreed a sale of the Farm and will, as a consequence, be able to make distributions to beneficiaries. You will be aware that the much needed sale of the Farm has been delayed due to the dispute over Estate property and also due to the existence of the legal charge (the Charge) which relates to a historic loan between our parents and our grandmother. I have made repeated attempts to negotiate the release of the Charge with Messrs Frisby & Hampton, the surviving executors of our grandmother's estate. However, they have been unable to achieve a consensus amongst their beneficiaries and as a result continue to refuse to release the Charge despite my offer of cash placed in escrow. Sale of the Farm The Farm has recently been valued by Bagshaws at£1.175m on an "open market" basis. Naturally any such valuation is predicated on the assumption that the Charge has been removed as it is only then that the Farm could be placed on the open market. Nigel has agreed to purchase the Farm at its full current open market value despite the fact that the Charge remains in place albeit with a small element of consideration deferred until the Charge is removed. That is a bold move on his behalf as it is not normal to purchase property with such an encumbrance in place. His willingness to do so allows me to break the current deadlock and progress the administration of the Estate which, I believe, is very good news for all of us as beneficiaries. Nigel is entitled to a quarter share of the beneficial ownership of the Farm under the terms of Mom's will. The sale to Nigel of the balance has been agreed at a price of£881,250 representing three quarters of£1.175m and is made up as follows:- -£82,500 deposit received on exchange of contracts -£742,500 to be paid at completion -£56,250 final payment from Nigel when the Charge is eventually removed from the Farm's registered title. Contracts have been exchanged and I anticipate that completion will take place in the next few weeks. It is good to know that the Farm will remain whole and not be divided up as may otherwise have happened. It is also very satisfying to know that the Farm will stay in the family for the next generation. I am sure that our late parents would have much appreciated both of these aspects. However, I should stress that any sentimentality carries no weight in my decision making with respect to the sale which has been negotiated at full market value, despite the Charge, in accordance with professional advice. Furthermore, I believe the Estate is fortunate to have received Nigel 's offer and that he is ready and willing to proceed with the purchase of the whole Farm. Indeed previous potential purchasers have either moved on or in the case of Mr & Mrs Marshall have recently reconfirmed that their interest remains only in part of the Farm and then unsurprisingly strictly on the basis that the Charge has been removed. By accepting Nigel's offer I am acting in accordance with my duty to advance the administration of the Estate and am also protecting it from significant potential market uncertainty at the present time. Specifically the risk that property values might fall in the economic aftermath of the coronavirus pandemic. Achieving a sale of the Farm also fundamentally improves the financial position of the Estate which has otherwise found itself in a precarious position. ……….”
“……. [6] I understand that extensive searches have been made through family records but no specific record can be traced concerning repayment of the loan secured by the Legal Charge……. [7] The majority and most persuasive opinion is that in all probability the loan secured by the Legal Charge was discharged before the Deceased died on14 January 1987 . Recent advice obtained by Mr A J Gill asserts that, in any event, the debt is now statute barred by the lapse of time. [8] From the facts set out above, I believe it most likely that the debt secured by the Legal Charge has long since been repaid and even if not then it is no longer recoverable and therefore the Legal Charge should be discharged. Accordingly, I am happy to join in an application to the Land Registry to have the charge removed from the title to Upper Latherford Farm.”
“Further to my previous letters relating to the sale of Upper Latherford Farm (the Farm) I am pleased to advise that the historic loan has now been resolved and the Charge has been removed. Consequently the Estate has now received the deferred consideration which completes the sale proceeds for the Farm. With that matter cleared up we can now progress towards winding up the Estate. Resolution of the historic loan You will recall that in 2017 we discovered a historic loan which had been created in 1982 as part of the family arrangement when our grandmother assented the Farm to our parents. The loan, originally in the sum of£8,000 from our grandmother to our parents, was secured by a puisne mortgage otherwise known as the Charge against the Farm. The Estate has always maintained that it was most likely that the historic loan had been settled in the distant past but that the removal of the Charge had unfortunately been overlooked. There are many factors which lead to that conclusion not least that our mother would not have failed to repay a loan to her own mother and sisters. Despite considerable efforts the Estate has not been able to locate any directly relevant historic documents. Our parent's historic papers, which may well have shed some light on the matter, went missing from the farmhouse sometime in the period between October 2012 and January 2017. The Estate had been in dialogue with Mr Frisby and Mr Hampton, the then surviving executors of our grandmother's estate, in an attempt to resolve the loan and release the Charge. However, despite their efforts they were unable to achieve a consensus amongst their beneficiaries and as a result had refused to release the Charge despite the Estate's offer of cash placed in escrow with solicitors pending a determination of the loan. We recently learned that Mr Frisby had sadly passed away which left Mr Hampton as the sole surviving executor of our grandmother's estate. Mr Hampton reviewed the situation and concluded that the loan was most likely settled long ago and even if not it was in any event now irrecoverable. He agreed that there is no outstanding liability for any payment from the Estate to our grandmother's estate and the Charge was therefore obsolete and should be removed. Furthermore, as it is now agreed that no principal liability outstands the vexed question of what type of interest (simple or compound) should apply to the loan is no longer pertinent. That will be welcome news to the beneficiaries of the Estate. Removal of the Charge Mr Hampton signed the release document which has been filed at the Land Registry and they have now removed the Charge from the Farm's registered title. It is pleasing that the historic loan and Charge have been resolved in this way without all the additional expense and delay that would otherwise have been inevitable had the Estate needed to approach the Courts for a determination. Consequently the final£56,250 tranche of the Farm's purchase price has been paid to the Estate as previously agreed and as detailed in my letters dated 26 May and8 June 2020 . Those proceeds are to be allocated equally between Pam, Malcolm and Adrian by way of additional entitlements of£18,750 each. Pam and Adrian have received their additional entitlements by way of a second interim distribution. Given that Malcolm has already disputed the calculation of his previous interim distribution and has also declined to present the cheque issued to him in that respect his additional£18,750 entitlement will be attributed to him but held in suspense pending agreement of his account with the Estate. Winding up the Estate All of the Estate's assets have now been realised with the balance held in cash. The net cash position is currently approximately£146,000 and will reduce to a projected final balance of approximately£116,000 when all pending transactions are processed. Please see the table at Appendix 1 which reconciles the current cash position to that as at30 June 2020 as recorded in the most recent Estate accounts. In principle that final balance can be divided equally and paid out to the 4 of us as residuary beneficiaries and the administration of the Estate will then be complete. However, we first need to reach an agreement with Malcolm as to his account with the Estate. It would not be appropriate to make any further distributions until that matter has been resolved and the above mentioned cash balance will therefore be held in reserve within the Estate for the time being. Agreement of Malcolm’s account with the Estate The Estate notes the contents of FBC Manby Bowdler's letter dated15 June 2020 and Malcolm's letters received on the 25 July and26 August 2020 . In FBC's letter Malcolm disputes various amounts deducted from his interim distribution. In his own letters he goes further and claims significant additional payments due to him from the Estate. The Estate has responded to Malcolm's letters seeking clarification on the points he raises and asking for copies of receipts where relevant. Hopefully that dialogue will lead to an agreement of his account with the Estate. The removal of the Charge significantly reduces Malcolm's potential liability on that matter as the Estate has been able to mitigate what otherwise would have been significant additional costs. The previously shared schedule of his potential additional liabilities has been updated accordingly and is attached at Appendix 2. The Estate will use its best endeavours to resolve this matter amicably and efficiently and has no desire to incur further significant legal fees which would otherwise erode value within the Estate. However, all beneficiaries should be aware that the potential for such costs continues to exist and very much depends on the nature of Malcolm's response. ……..”
“[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”
“[66] In refusing to agree to the removal of the Charge from the Land Registry and/or in refusing to accept that any interest due under the loan secured by the Charge was simple and could be covered by setting aside the amount of the capital and simple interest from the proceeds of sale pending determination of the issue, Malcolm acted in breach of his duties as an executor of [Rosemary’s] estate by; (a) Failing to preserve the assets of the estate; (b) Failing to deal properly with the assets of the estate; (c) Failing to apply the assets of the estate for the benefit of the beneficiaries in accordance with the terms of the Will; (d) Seeking to profit from his office, save as permitted by the terms of the Will; and (e) Placing himself in a position where his interests conflicted with the interests of the estate.”
“…… There is no objection on Adrian Gill’s part to the proceeds of sale being placed in an escrow account as you suggest…….. The difficulty is that the legal charge will remain in place on registers of title to the property and the buyer will acquire the property subject to that charge. As the personal representatives of the late [Martha] cannot be traced, or unwilling to act (or in the case of Malcolm Gill are conflicted) release of that charge cannot be obtained nor a binding agreement not to enforce it against any of the purchasers of the property. …… You mentioned the possibility of applying to the court for an order that the legal charge be removed from title to the property, but I assume it will be contingent upon evidence being obtained that the sums secured by it have been paid…… I foresee it may be difficult to achieve a sale of any part of [the] …. Farm……. ……..”
“I understand you would like to speak to me in relation to the sale of the farm. I have contacted my client for an update and have been asked by Malcolm…. to request that all future contact with you ceases and if you have any concerns or questions relating to the sale then please do that directly through my client……”
“…….. Loan Interest I have taken legal advice on the loan and charge document and am advised that the loan can only attract simple interest and not compound interest due to the absence of any compounding language in the loan document. With an 11% per annum interest rate over 36 years we arrive at a redemption figure of£8,000 capital plus£31,680 interest totalling£39,680 . Clearly if compound interest were to apply that total would be much greater. I understand that Anson’s have also sought counsel’s opinion on the loan document and they too believe that only simple interest can be applied. Obviously that is a matter for them to confirm with you and no doubt you will have your own opinion and take your own advice. Way Forward As surviving executors of Martha Kirk’s estate I need your decision as to whether you believe said loan remains due from my mother’s estate. More pressing I need to agree the release of the charge at the land registry to enable the sale of the Farm to proceed. I am happy for an appropriate sum, in the order of£40,000 , to be placed in suspense between respective firms of solicitors if that will help secure the release of the charge to enable the sale to procced. We can then undertake whatever further research is required to finally determine whether the loan is still outstanding or not and release proceeds to the relevant parties in due course. ……..”
“…… [Willans] has now put forward a practical proposal. His proposal is that simple interest is applied to the principal sum and that the calculated amount is held in escrow pending resolution of the repayment or otherwise of the mortgage. Neither myself nor Mr Hampton wish to be obstructive. However, it is clear that neither of us have the benefit or protection of professional indemnity insurance and in the circumstances it would be foolish to make any decision without professional advice….. …..”
“…… As far as the way ahead is concerned I have not – as yet - been able to obtain our co-executor’s express agreement on the position with interest on the loan. Ansons have no doubt that the principal sum is subject to simple interest. I have asked the co-executor for his final instructions and told him to return to me no later than Thursday 27 September……… If Malcolm is ultimately of the view that compound interest is applicable here (at this point I must emphasise that Ansons does not share that view and that he has not expressly stated that compound interest should apply) then a declaration of the Court will be necessary to determine the position with interest on the principal sum……. ………”
“……… Unfortunately, I have still not been able to make any progress following my discussion with Malcolm yesterday evening. I do not propose to obtain any further opinions from Counsel. Ansons' position is clear. One issue that I do need to address once again is Ansons relationship with Malcolm. You have questioned that relationship once again in your email. Ansons and Malcolm are co-executors in your Aunt's Estate. Malcolm is not therefore a client as such and he has willingly carried out his duties as an executor of that estate……. Ansons have little choice but to act with Malcolm in our capacity as a co-executor………….. Currently, there is a difference of opinion between Malcolm and Ansons in connection with the loan and I trust that you will accept that there is very little that Ansons can do to progress matters at this stage. I have been open and honest at all times. Certain matters are of course governed by legal privilege, but both Tracey and I have been more than open with both you and your sister. We were in a position to make progress some time ago. Sadly, that is not the case for others. I hope that clarifies our position once again.”; ii) On3 June 2019 , the solicitors appointed to represent the surviving executors of Martha’s estate emailed Adrian in the following terms (with my emphasis added): “Both Mr Frisby and his co-executor are agreed upon writing to the beneficiaries in the terms of our telephone conversation. I am awaiting approval of the draft letter from Mr Frisby. However, on Friday of last week your brother visited Mr Frisby at his home unannounced and made clear to Mr Frisby that he believed that the loan was not repaid and that he had received counsels advice indicating that interest on the loan amount should be compound. Clearly, this was not something that Mr Frisby was expecting or indeed wanted. I understand the conversation was short and my contact details were given to your brother. As yet your brother has not contacted me. Do you have any correspondence passing between your solicitor and your brothers solicitor dealing with the issue of how interest is going to be treated and/or the repayment of the loan. If so, it would be helpful if that could be disclosed to Mr Frisby so that he can have a better understanding of the position your brother is taking via his lawyers.” iii) In October 2019, Messrs Frisby and Hampton wrote to Malcolm in his capacity as one of the ultimate beneficiaries of Martha’s estate asking, “if you disagree [that the simple basis is the appropriate way of calculating the interest] can you please inform us and provide the basis/ authority for stating that it should be compound interest.”
“I have been back in touch with Charles Meynell of Fisher German who completed the original probate valuation. He has reviewed his file and reassessed against current market conditions. He has just called me with his views. He came to an overall value of c.£1,050k which compares with the£900k valuation from September 2012. He said that, in his view, the main reason for the increase is the improvement in land values whereas the house will not have changed much (he says residential transaction volumes have picked up but values haven't moved significantly for this type of property). …………. His strong advice is that if we are going to put it on the market then we should move quickly to get the photos taken and initial marketing done asap whilst it is looking at it’s best in the summer months. Please let me know your views – so that we can try to agree on next steps. ……….”
“…….. It is important that the four of us can agree on the next steps in relation to the Farm. I have had conversations with each of you and there has been some discussion as to the way forward. In an attempt to summarise the options, I thought it might be helpful to put the following in writing:- Some options have already been discussed and discounted:- A. Sell the farmhouse and attached brick barns alone. Agents have indicated values (£450 -500k) that we find unacceptable. B. Prepare the house for letting. Need to spend£5 -£10k and rental returns not particularly attractive. Options to be considered:- 1. Market the whole Farm in Spring 2015. Market it in lots and be prepared to sell whatever combination attracts best value. Guide Price£1.2m . (albeit Fisher German indicated£1,050k ) 2. Market the house + significant other land and buildings in Spring 2015. Agents have indicated that we need to achieve good separation from any residual farmyard if we want to maximise the potential of the house site…… …….. 3. Keep the Farm whole for the next 3 years and agree to market it as a whole at that future time. During that 3 year period a lease would he agreed for the farmland, with rental being paid into the executors account. The rent would need to be negotiated and agreed…… It is to be expected that each of us might have different views. From recent conversations I think it is fair to say that Pam and Nigel have a clear preference for Option 1, followed by Options 2 and 3 in that order. Malcolm has previously indicated that he is not keen on selling the whole Farm at this time as he would prefer to keep farming for the time being. I am flexible and will aim to fit in with the consensus. I would ask each of you to confirm your preferences, so that we can attempt to agree a way forward. ……..”
“Comments and clarification as requested on the21 December 2014 Agreement made at the farm in October 2012, all four of us present. 1. House to be rented by April 2013. 2. Planning for buildings and development to maximise value. 3. Malcolm to continue farming. 4. House expenses, Malcolm to pay heating, water, Executers to pay council tax and insurance. 5. Malcolm not to use or live in the farm house, Pam and Adrian were concerned about me becoming a squatter. Liabilities 1. Adrian - care 2. Pam - services, this wasn't ever discussed. 3. Nigel - Elford ltd had a settlement in 2009. Nigel, I believe had a settlement in 2012. 4. Malcolm - out of pocket expenses and wages as agreed. 5. Farm business was previously agreed, Clearly this needs to be discussed again. Concerns 1. I did make a practical suggestion with regard to the land that would have enabled pam to have her money straight away but this was discounted without discussion 2. I personally have no wish or time to raise extra money as I am currently looking after our auntie, I can pay for house expenses as I have done for many years, but I have no objections if others wish to raise money. Suggestions. Sell farm house, Rent the farm house, Rent 8 stables, Grazing or stewardship scheme, car repair workshop, buildings passed for plant hire and HGV operating centre all could make a considerable income Advice 1. Things tend to attract market values when they are for sale, I must advise against inflating professional values with hope value as this can only lead to disappointment. 2. We may find it beneficial to consult a solicitor. Knowel and Mellor we're trusted by mum and dad and currently hold the farm deeds, to over see that things are done correctly and for the sale of property. Urgent jobs 1. Insurance, we have technically had no house insurance what so ever for the past two years, this could have far reaching consequences. 2. Put the deeds into all four names. The executer's job is then finished. As executer, I was not paying attention. I will now address these matters. Hope these comments are helpful and clarify everything that has been asked.”
“- Malcolm, I am aware that you have an aspiration to own some land and buildings long term and I have, previously, indicated my willingness and flexibility to help you achieve that provided we can, at the same time, ensure all four beneficiaries are treated fairly. However, it is frustrating that we still don't have a proposal that seems workable. Perhaps we have ended up where many people in the same situation would have started which is:- • Invite any family member who wishes to own all or part of the Farm to put an offer, in writing, to the other 3, with the expectation that such an offer will be given full and respectful consideration. • If such an offer is agreeable (presumably with some confidence of achieving our collective goal of£1.2m ) then proceed accordingly. • Should such an offer or offers be unacceptable then put the whole Farm on the market (suitably lotted) to establish it's full value. • If our target price is achieved then proceed to sell. • If not then back to square one and reconsider all options at that time. Both Pam and Nigel have also responded to your letter and made it pretty clear that they now wish to see the whole Farm put on the market. In the absence of any other workable proposals, I agree with them. I look forward to your responses to the questions above and your view on the way forward.”