Nicola Anne Lowe v Lucy Daniells [2025] EWHC 3297 (Ch)

[2025] EWHC 3297 (Ch)Case No PT-2025-BRS-000137IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLPROPERTY TRUSTS AND PROBATE LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 17 December 2025
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
NICOLA ANNE LOWEClaimantLUCY DANIELLSDefendant
April Plant (instructed by Harold G Walker, Solicitors) for ClaimantThe Defendant was not present or representedHearing Hearing date: 19 November 2025
This judgment was handed down remotely at 10:30 am on 17 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesHHJ Paul Matthews :

Introduction

[1]On 19 November 2025 I heard and disposed of this claim under CPR Part 8, whereby the claimant, the administrator of the estate of Jean Phyllis Norman deceased, sought a direction as to what to do with the residue of the deceased’s estate. The claimant is a partner in a firm of solicitors local to the deceased. Under the will of the deceased, the defendant is entitled to the residue of the estate, but, failing her, there are two substitute residuary legatees. However, in very brief terms, the defendant has declined to engage with the claimant in relation to the estate, and in particular has declined to cooperate in dealing with it. The claimant was represented at the hearing of 19 November by solicitors and counsel. The defendant was neither present nor represented at the hearing. At the end of the hearing, I announced my decision, and said I would give reasons for that decision in writing. These are those reasons.[2]The claim form was issued on 5 August 2025 in the Business and Property Courts of England and Wales at the Rolls Building in London. The claim was supported by a witness statement dated 29 July 2025 of the claimant herself, together with one exhibit. That exhibit also contained a copy of a witness statement of Jane Gregory (a process server) dated 1 March 2021. Service was effected on the defendant by first class post, the deemed date of service being 8 August 2025. Despite being properly served, the defendant neither acknowledged service nor filed any evidence. It will be noted that the claim has been made against the defendant alone. The two substitute residuary legatees have not been joined. I will return to that point later in this judgment.[3]On 1 October 2025 the claimant applied for a final disposal hearing, on the basis that the evidence was complete. On considering that application, on 2 October 2025, Master Brightwell ordered instead that the claim be transferred to the Business and Property Courts in Bristol, although the order was not in fact sealed until 10 October 2025. The order also directed the defendant to file an acknowledgement of service and any evidence on which she wished to rely within 14 days of service upon her of the order. That order was deemed served upon her on 13 October 2025. The defendant has not complied.[4]The matter was referred to me in Bristol on 23 October 2025, when I directed that it be listed before me for hearing remotely by Teams, for directions or final disposal, on 5 November 2025. Unfortunately, because of pressure of other work on court staff, my direction was not seen by them in time for the matter to be listed on 5 November. Accordingly I directed that it be relisted before me on 19 November 2025 (when, as I say, it was in fact heard). The facts The deceased and her will

The facts

[5]The relevant facts, as established by the evidence, are as follows. The deceased died on 29 May 2018, aged 99 years, and domiciled in England and Wales. Her last will is dated 14 February 1997. By clause 1 of this will, the deceased gave everything to her husband Stanley (whom she also appointed as sole executor) provided that he survived her by 28 days. In fact he predeceased her, and so the gift to him failed. Clause 2 of the will provided that if her husband did not survive for by 28 days the remaining provisions of the will should apply. In that case, clause 3 appointed one David Turnbull as her executor. Unfortunately, he too predeceased the testatrix. The will then proceeded by clause 4 to give pecuniary legacies to three of her grandchildren, and clause 5 gave the whole of the residue of her estate to a fourth grandchild, the defendant. Clause 6 provided that, if the gift to the defendant should fail, the residue should instead go to two of the grandchildren named in clause 4, namely Samantha Lee Bate and Jason Scott Norman.

Initial correspondence

[6]In November 2018, the claimant wrote a letter to the defendant intimating the defendant’s interest in the estate, and asking for the usual evidence of identity for anti-money laundering purposes. The defendant did not respond, so in February 2019 the claimant wrote again, this time by recorded delivery. The evidence shows that this letter was signed for by someone called “Daniels”. But it too produced no response.[7]A further and more detailed letter was sent by the claimant to the defendant in March 2019. This further letter explained that, although the deceased had made what purported to be a later will in 2004, this was invalid, and so the last valid will was that of 1997, under which the defendant was named as residuary legatee. The claimant explained that she had calculated that the residue would be worth in the region of £200,000. However, it would first be necessary to obtain a grant of probate, and since the two named executors have died, the defendant as residuary legatee had the next best claim to a grant of representation. It appears from the evidence that this letter was sent using the “Royal Mail Signed for” service, but it was never collected or signed for, and was returned undelivered to the claimant.[8]In December 2019 the claimant wrote again to the defendant. In this letter she informed her that, as the claimant had not heard from the defendant, the defendant’s cousin Jason Norman (one of the substitute residuary legatees named in clause 6) had agreed to apply for the grant of representation. Once again the claimant asked the defendant to contact her about the estate. Once again, the defendant did not respond.[9]In May 2020 the claimant wrote once more, this time informing her that the Probate Registry was unwilling to allow Jason Norman to apply for a grant without the defendant’s first renouncing her right to take the grant as the original residuary legatee. The letter enclosed a deed of renunciation for signature by the defendant which would enable Jason Norman to apply for the grant of representation. The letter also pointed out that, if the defendant did not renounce her right to a grant, an application to the court would be necessary, and the costs concerned would have to come out of her share of the estate.

The email correspondence

[10]Once more, nothing was heard from the defendant. On 26 November 2020, the claimant’s firm wrote again, this time by email, having been provided with the defendant’s email address by other relatives. This email similarly urged defendant to make contact and at least to renounce her right to take a grant. This email at last produced a result. On 27 November 2020, the defendant sent an email in reply to the email of the day before. The first paragraph (of four) read as follows:
“Please note that any further harassment of yourself will result in a report being made to the law council and further. These people sold off all assets and took great pleasure in telling me. I suggest you contact Christopher Norman who was the latest Beneficiary of anything”
. The next two paragraphs of the email made a number of allegations against family members. The last paragraph read as follows: “This is the last time you will hear from me, even if I have to go to the amazon [sic] to get away from your harassment”.[11]Just over an hour later, the claimant’s firm responded to the defendant, thanking her for her email. It continued:
“However please note that this has nothing to do with family members. We are attempting to speak to you regarding funds which have been left to you by your grandmother and which we are keen for you to receive. The funds are very substantial. Please reconsider your position and contact us.”
Please reconsider your position and contact us.”[12]Seven minutes later, and despite the last paragraph of the previous email, the defendant replied as follows: “As said, Raymond Norman declares all estates sold. It is the end of the matter. I have emails from him and David Turnbull to prove it. If you want to continue charging him for a wild goose chase please do so, he deserves it”.[13]A further seven minutes later, the claimant’s firm replied to that email from the defendant. This made plain that they were not acting for Raymond Norman, but instead on behalf of the deceased’s estate, and that there was evidence that there were indeed significant assets in that estate. The email continued:
“If you do not accept the position then we will have no alternative but to seek guidance from the court and the monies due to you will we anticipate be held by the court on your behalf”
. Much later on the same day, at 2159, the defendant responded to this email as follows:
“Ok show me. Give me the evidence?! Your [sic] full of shit, like the snake that employed you. Are you fucking? Probably. Yuk. I will find out you tramp.”
[14]Just over a week later, in the early hours of 5 December 2020, the defendant sent a further email to the claimant’s firm reading as follows: “After seeking legal advice? You are to detail the full issues to me to makes [sic] decision it seems legal protocol hasn’t been followed here, why not? You launch probate, anyone can, go for it. You don’t need me. Finally harassment is a criminal offence and will be treated as such.”.[15]The claimant’s firm responded during normal business hours on the same day, thanking the defendant for her email, and continuing:
“We note that you have taken legal advice. Can we suggest that you provide us with your solicitors details, or ask your solicitor to contact this firm, so that we can discuss the matter direct with them … ”
A few minutes later, the defendant responded:
“Kindly note that David Turnbull is named executor of Mrs Normans estate”
. Ten minutes after that, the claimant’s firm replied, pointing out that David Turnbull had predeceased the testatrix, and that the defendant, as residuary beneficiary, had either to take the grant or renounce it.

The process server’s visit

[16]The defendant did not respond further. So the claimant instructed a process server to attend at the defendant’s address with a deed of renunciation for the defendant to sign if she wished to do so. The process server attended the defendant’s address (a flat in a block in South London) on 2 February 2021. She was able to gain access to the building, and to persuade the defendant to open her flat door to her.[17]However, despite explanation at the door as to the purpose of her visit, the process server was unable to persuade the defendant to accept the document, or to invite her into the flat. The defendant said that there was “nothing in the will” for her as she had “already been down that route”. Eventually, the defendant shut the door on the process server. In her own witness statement, supported by a statement of truth, the process server said:
“7. In my opinion, [the defendant] is of sound mind and spoke coherently and did not appear confused in any way. She was not hostile to me but was adamant in her opinion that there were no funds available to her in the Estate and that she did not wish to discuss the matter any further.”

Applications to the probate registry

[18]In the circumstances, the claimant decided that the best course of action was to apply to the probate registry seeking an order to pass over prior claims to a grant. This order was made on 25 May 2021. Thereafter the claimant applied for, and on 7 September 2021 obtained, a grant to herself of letters of administration with the will annexed. She then embarked upon the administration of the estate. This has now been substantially completed, save as to the gift of residue. As at 18 November 2025, the value of the residue being held by the claimant was more than £184,439.

Last attempts

[19]In March 2023 the claimant sent a further letter to the defendant, both by post and by email. This informed her that the firm was holding funds on deposit which were due to the defendant, and that the total sum at that date was £184,566.77. However, the claimant would need to make an identity check before releasing the funds. She set out a number of options in this respect, and asked for a response. She added this:
“If however you are adamant that you do not want the funds then can I ask you please to confirm this in writing”
. There was no reply to this letter. The claimant instructed the process server to re-attend the defendant’s address to request identification documents or her signature on a letter. Despite attending twice in May 2023 and again in June 2023 the process server was unable to make contact with the defendant.

The claim

[20]The deceased died in 2018. The administration of the estate was still not complete more than seven years later. Having tried on the several occasions set out above to persuade the defendant to engage with the administration process, the claimant ultimately issued the present claim, as I have said, on 5 August 2025. This seeks “an order pursuant to CPR 64.2(a) and PD 64A paragraph 1(b)(ii) and 2(c) that 1. The gift of residue to the Defendant by clause 5 of the Will is disclaimed by the conduct of the Defendant. 2. The residuary estate be applied in accordance with clause 6 of the will be paid to Samantha Lee Bate and Jason Scott Norman in equal shares. 3. The Claimant’s costs of an occasion by this application be paid on an indemnity basis from the funds in the residuary estate. 4. The Claimant be discharged from all and any liability to the defendant That howsoever arising whether now or in the future in connection with any interest in the Deceased’s Estate. 5. Such further or alternative order as the court deems fit in relation to the residuary estate to enable the Claimant to complete the administration of the estate.”[21]In addressing me during the hearing, the claimant’s counsel accepted that, in these modern times, where identity theft and fraudulent offers of apparently free money are increasing problems, it would not be unreasonable of the defendant to be cautious before responding to the solicitors’ correspondence and providing identity documentation. However, the defendant had taken no steps to verify the bona fides of the solicitors, dismissing them summarily as the agents of members of her own family with whom she was on poor terms, and against whom she made allegations.[22]There was a question as to whether the defendant, by her conduct over the last seven years, had disclaimed the residuary gift given to her by the will. It would of course be possible for the claimant to seek to pay the residue into court under section 63 of the Trustee Act 1925, and leave the defendant, or the substitute residuary legatees, to apply to the court for payment out. If there was then an issue between them as to whether the defendant had lost her entitlement, that issue could be tried. On the other hand, the court might be prepared to grasp the nettle and decide the disclaimer point. However, the claimant was neutral, as the personal representative of the estate, and took no side as between the defendant on the one hand and the substitute residuary legatees on the other.

The law of disclaimer

[23]The claimant’s counsel referred me to Re Clout and Frewer’s Contract [1924] 2 Ch 230, where a person named executor and trustee of a will was held, by failing, for nearly 30 years, to prove the will or act as trustee, to have disclaimed not only the appointment as executor and trustee but also the trust gift and a small personal legacy. The judge was Lord Buckmaster, who had been a chancery barrister in practice, and later Lord Chancellor in 1915-16, but was now sitting temporarily in the Chancery Division at first instance. He did not discuss the relevant law, but, after considering the facts of various cases which reached opposing conclusions, said (at 236):
“In the circumstances I think that is sufficient evidence that he never intended to act, and disclaimed the trusts.”
That is, with respect, simply a decision on the evidence as to what facts the judge found. It says nothing about the test to be applied.[24]Counsel also referred me to the decision in Re Wimperis [1914] 1 Ch 502. In that case, Warrington J had to decide whether the gift by a will taking effect in 1913 of an annuity without power of anticipation to a married woman could be disclaimed. The judge decided that it could be so disclaimed. But the argument was really about the special position in which married women found themselves before the enactment of the Married Women’s Property Act 1882, and how far that Act changed the position so far as concerned disclaimer of gifts and legacies. Only passing reference was made in the argument to the effect of disclaimer, and the judge did not dwell on the subject in his judgment. I do not think I can derive any assistance from that case for the purpose of deciding this one.[25]On the other hand, at the hearing, I referred counsel to the decisions of the Court of Appeal in Standing v Bowring (1885) 31 Ch D 282 and in London and County Banking Co Ltd v London and River Plate Bank Ltd (1888) 21 QBD 535. In the former case, a widow aged 86 years transferred bank stock into the joint names of her godson and herself, intending her to have the income during her life, and for the godson to have the capital on her death by survivorship. But she did not tell him of the transfer, and he knew nothing of it at the time. Some two years later, the widow having remarried, she asked the godson by way of a solicitor’s letter to join in a retransfer to herself. He declined to do so, and she sued for the retransfer. Her claim failed, as did her appeal to the Court of Appeal.[26]In that court, Lord Halsbury LC said (at 286):
“You certainly cannot make a man accept as a gift that which he does not desire to possess. It vests only subject to repudiation.”
[27]Cotton LJ said (at 288):
“Now, I take the rule of law to be that where there is a transfer of property to a person, even although it carries with it some obligations which may be onerous, it vests in him at once before he knows of the transfer, subject to his right when informed of it to say, if he pleases, ‘I will not take it.’ When informed of it he may repudiate it, but it vests in him until he so repudiates it.”
[28]And Lindley LJ said (at 290):
“An incomplete gift can, of course, be revoked by the donor at any time; and I believe that by the civil law and the laws of some, if not all, foreign countries founded upon it, a gift is incomplete until the donee has assented to it, or at least until he has been informed of it and has tacitly assented to it by not objecting to it. But I have not been able to ascertain that this doctrine is ever applied where, as in this case, the donor has put the thing given out of his own power, and has placed it in such a position that he can only get the thing back with the concurrence of the donee. When once the possession is changed it is too late to revoke; but whether possession is changed until the donee has assented to the change is not so clear. However this may be on general principles or by the civil law, our own law as to the necessity of assent to gifts seems settled. by Butler and Baker's Case (1), Thompson v. Leach (2), in the House of Lords, and Siggers v. Evans (3). The older authorities were carefully examined in this last case by Lord Campbell, and I take it now to be settled, that although a donee may dissent from and thereby render null a gift to him, yet that a gift to him of property, whether real or personal, by deed, vests the property in him subject to his dissent.”
[29]In the latter case, London and County Banking Co Ltd v London and River Plate Bank Ltd, the defendant bank’s manager (one Warden) stole negotiable securities from the defendant, which were negotiated to the plaintiff for value without notice of the defective title. That manager by fraud subsequently obtained the same securities back from the plaintiff, and restored them to the defendant, who did not know that the securities had ever been out of their possession. The plaintiff sought to recover the securities from the defendant, but failed. An appeal to the Court of Appeal also failed.[30]Lord Esher MR said (at 539):
“The defendants, when Warden stole these securities, could not only have indicted him for the theft, but they could have brought an action against him for the wrongful conversion of the securities. When he restored them, they lost their right, for how could they bring an action for the conversion of instruments which were in their own possession ? I am of opinion that the destruction of this right of action is a value moving from them, and that it is immaterial that they did not know what they were doing. There is therefore a sufficient valuable consideration to make the case come within the ordinary rule applicable to holders of negotiable instruments obtained for a valuable consideration, and without knowledge of any fraud, and therefore their right to hold these securities is complete.”
[31]Lindley LJ, with whom Bowen LJ agreed, said (at 540-41):
“The legal consequences of the theft were: 1, to render Warden liable to conviction for a criminal offence: 2, to render him liable in a civil action to restore the bonds or pay their value to the defendants. In addition to his criminal responsibility he was under a civil obligation to the defendants to restore the bonds or their value to them. The existence of this civil obligation affords in my opinion the clue to the solution of the problem which has to be solved. When Warden restored the bonds which he had stolen, he was doing no more than he was bound to the defendants to do; he was discharging, or, at all events, partly discharging, his obligation to them, and if the defendants chose to accept the bonds in such discharge his obligation to the defendants would have been extinguished, if not wholly, at least to the extent of the value of the bonds restored. In the case supposed, the defendants clearly would have been bona fide holders of the bonds for value; the value being the extinction of Warden's obligation to themselves; and in the case supposed, the defendants would have acquired a good title as against the plaintiffs. But then it is said that the defendants did not in fact accept the bonds when they were restored in discharge of Warden's obligations, inasmuch as the defendants did not know that the bonds ever had been stolen from them, and did not know that Warden was under any obligation in respect of them, and did not know of their restoration by him. All this is perfectly true, but is not in my opinion decisive against the defendants. Their acceptance of the bonds in discharge of Warden's obligation, which existed in truth although the defendants did not know it, may, and in my opinion ought to be presumed in the absence of evidence to the contrary. This presumption is, I think, warranted by authority, for although the exact point has not been decided, an analogous point has. It was settled as long ago as the time of Lord Coke that the acceptance of a gift by a donee is to be presumed until his dissent is signified, even though the donee is not aware of the gift …”
[32]I take these authorities to support the proposition that a gift of property (whether beneficial or onerous) is presumed to be accepted by the donee from the moment it is complete, without the need for any positive assent from the donee, even though the donee has then no knowledge that the gift has been made, and that the property therefore vests in the donee at that moment. It is however open to the donee, once he or she becomes aware of the gift, positively to refuse the gift, and then the property is divested. There is a debate in that case as to whether such divesting is retrospective (so that it never vested in the donee) or not (so that it vested in the donee but was later divested), but for present purposes that is irrelevant.[33]In considering the application of these principles to facts of the present case, there are a number of matters to take into account. The first is the question of the defendant’s mental capacity. Under the Mental Capacity Act 2005, section 1(2), a person is assumed to have capacity unless it is proved that she lacks it. The written evidence of the process server, Jane Gregory, is that she spoke to the defendant at the door of her flat on 2 February 2021. Earlier in this judgment I set out paragraph 7 of her witness statement. There is no basis there for asserting that the defendant lacked mental capacity, except for the possible question of mistake, to which I shall shortly turn. On the other hand, the defendant did use coarse and insulting language in her emails to the claimant and her firm. I have already set out the relevant material earlier in this judgment. But in my judgment the use of coarse and insulting language does not of itself demonstrate a lack of mental capacity.[34]The fact that the defendant appears to have believed that there was in fact no money for her in the deceased’s estate stands on a slightly different footing. For one thing, it lends itself to a different interpretation of the defendant’s refusal to engage with the claimant and her firm. If she thought there really was nothing for her, it is difficult to suppose that her actions manifested an intention to disclaim the gift of the residue. But, secondly, and for my purposes more importantly, in relation to the question of mental capacity, at least in exceptional circumstances a mistaken view taken by a person may help to demonstrate that that person lacked capacity.[35]Thus, in Re Belliss (1929) 141 LT 245, a woman aged 93 years made a will stating that she had for some years given to one of her two daughters more financial assistance than to the other, and that she now wished to put provision for her two daughters on in an equal footing. She therefore now provided to a greater extent for the other of her two daughters. However, she was mistaken in her belief as to what she had done in the past, and, far from equalising her provision for them, had now favoured one considerably more than the other. Lord Merrivale P held that the deceased was subject to an illusory belief of such a character as to negative testamentary capacity. She was unable to recall and understand the true dealings between her and her daughters.[36]However, Re Belliss was the case of an illusory belief from which the deceased could not be shaken, and which deprived her of her reason and her testamentary capacity. In Goss-Custard v Templeman [2020] EWHC 632 (Ch), Fancourt J (at [142]) rejected “the suggestion that Re Belliss stands as authority for the proposition that a mere mistaken belief, which is the product of forgetfulness, is inimical to testamentary capacity. In my judgment, the President was not using the phrase ‘illusory belief’ as meaning ‘mistaken belief’, but as denoting a kind of fixed belief, similar in character as an insane delusion, which the testator does not have the mental powers to overcome.”[37]There is nothing in the evidence so far available to me in the present case to suggest that any mistake made by the defendant as to the estate left by the deceased came from any kind of insane delusion. All that the evidence suggests here is a straightforward ignorance of the true facts. Accordingly, for present purposes, I think that I must proceed on the basis that the defendant had the mental capacity to disclaim the gift of residue.[38]The more difficult question, to which I now turn, is whether the court can, and if so should, in the present proceedings decide the question whether the defendant’s conduct does indeed amount to a disclaimer of the gift of residue. The first problem is that of the parties. Only the claimant and the defendant are parties to these proceedings. The defendant is certainly interested in the disclaimer question. But the claimant has no personal interest in it. Indeed, she was at pains during the hearing to say that she was neutral on the question, as befits a personal representative without a beneficial interest in the estate.[39]On the other hand, the persons who would take the residue in the event of a disclaimer having been made by the defendant are not parties. If I were to go on and decide that there had not been a disclaimer, they would quite reasonably feel aggrieved. Of course, there are the authorities, to which I have already referred, on the effect of the presumption of acceptance and the lack of any positive dissent from the defendant (despite an invitation by the claimant to her to express such dissent by way of a written disclaimer). On the other side, there is also the possibility that the substitute legatees might be aware of evidence which bore upon the question of disclaimer, which the claimant herself is not aware of.

Conclusion

[40]In these circumstances, I do not think it would be appropriate for me to decide the question of disclaimer in the light of the existing parties to this claim and the evidence available at present. On the other hand, I think that the claimant as personal representative is entitled to protection in the difficult circumstances in which she finds herself.[41]There are two main possibilities. The first is to give permission to the claimant to pay the residue into court and discharge her from her office. This would protect the claimant, though it would put a burden on the substitute legatees to bring proceedings against the defendant and fight the disclaimer issue out in those proceedings. The alternative would be to make a kind of Benjamin order (from Re Benjamin [1902] 1 Ch 723), giving liberty to the claimant to distribute the estate on the footing that the defendant has indeed disclaimed the gift of residue, but without seeking to extinguish any rights which the defendant might have to that residue.[42]On balance I think the second is the preferable course for the court to take in the present case. If the claimant distributes the residue of the estate on the footing that the defendant has indeed disclaimed it, she will be protected from any personal liability to the defendant, if the defendant subsequently seeks to argue that she has committed a devastavit or other breach of duty by failing correctly to distribute. On the other hand, the defendant will not be prevented in making a claim to the funds in the hands of the substitute legatees, subject to limitation and so on, should she wish to do so. On the information available, that seems unlikely, but I do not think that I can rule it out. If any such claim were brought, it would be a matter for the defendant to make the claim, and for the substitute legatees to defend it, if they so wished.