England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th March 2004

Mr Justice Lewison:

Introduction

1. The late Miss Florence Bennett died on 4 June 1998. At the date of her death she was the registered proprietor of a long lease of the flat in which she lived at 52 Beauclere House, 67 Brighton Road, Sutton. She was also a joint account holder of a current account at Abbey National. Miss Bennett was unmarried but had two nieces and a nephew. She left her residuary estate to all three in equal shares. The claimant, Anthony Papouis, is her nephew and the defendant, Valerie Gibson-West, is one of her nieces and is also her executrix. The other niece, Stella Avery, has played no part in this litigation. Unfortunately, although Mr Papouis, Mrs Gibson-West and Mrs Avery are brother and sisters, there has been a serious rift in the family. Mrs Gibson-West and Mr Papouis are (and have for many years been) barely on speaking terms.
2. Miss Bennett acquired the long lease under the right to buy legislation. Because she was a council tenant of long standing, she was able to acquire it at a substantial discount from its market value. The cash price payable on completion was a little over £12,000. Miss Bennett contributed £6,000 of her own money to the purchase price. The rest was provided by Mrs Gibson-West. At about the time of the purchase of the lease Miss Bennett and Mrs Gibson-West entered into a deed of trust. Mr Papouis says that the deed was procured by the undue influence of Mrs Gibson-West and should be set aside. It is not in dispute that he has the status to make this claim, although the merits of the claim are fiercely disputed. The value of the flat at the date of Miss Bennett's death is not known, although it sold a few years later for £77,000.
3. The other joint holder of the bank account is Mrs Gibson-West. She says that she and her aunt were the joint owners of the account, both at law and in equity, with the consequence that the balance standing to the credit of the account at the date of Miss Bennett's death accrued to her by right of survivorship. This, too, is in dispute. Mr Papouis says that the monies in the account belonged to Miss Bennett (although he accepts that to the extent that Mrs Gibson-West paid monies into the account, she is entitled to them).
4. If these two assets form part of the estate, they will amount to the bulk of its value.

The legal framework

5. The law relating to undue influence is comprehensively discussed by the House of Lords in Royal Bank of Scotland plc v. Etridge (No. 2) [2002] 2 AC 773. The following principles are relevant to the present case:

i. The objective of the doctrine of undue influence is to ensure that the influence of one person ("the donee") over another ("the donor") is not abused (para 6);

ii. If the donor intends to enter into a transaction, but the intention was produced by means which lead to the conclusion that the intention thus procured ought not fairly to be treated as the expression of the donor's free will, the law will not permit the transaction to stand ( para 7);

iii. Leaving aside cases of improper pressure or threats, undue influence may arise where the donee has acquired over the donor a measure of influence or ascendancy of which he takes unfair advantage (para 8);

iv. Disadvantage to the donor is not a necessary ingredient of undue influence (para 12). However, it may have an evidential value, because it is relevant to the questions whether any allegation of abuse of confidence can properly be made, and whether any abuse actually occurred (para 104);

v. Whether a transaction has been brought about by undue influence is a question of fact (para 13);

vi. The legal burden of proving undue influence rests on the person alleging it (para 13);

vii. If the claimant proves (a) that the donor placed trust and confidence in the donee in relation to the management of the donee's financial affairs, and (b) that the transaction calls out for explanation, the claimant has discharged an evidential burden, which will also enable an inference of undue influence to be drawn, and thus satisfy the legal burden, unless the donee produces evidence to counter the inference which would otherwise be drawn (paras 14, 21 and 156);

viii. This is simply a question of evidence and proof. At the end of the day, after trial, there will either be proof of undue influence or that proof will fail and it will be found that there is no undue influence. In the former case, whatever the relationship between the parties and however the influence was exerted, there will have been found to have been an actual case of undue influence. In the latter there will be none (para 93).

ix. Proof that the donor received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a donor a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case (para 20);

x. The nature of the advice required is that someone free from the taint of undue influence should put before the donor the nature and consequences of the proposed transaction. It is not necessary for the adviser to recommend the transaction. An adult of competent mind is entitled to enter into a financially unwise transaction if he or she wants to (paras 60 and 61).

6. The lengthy discussion in Etridge of the steps which a bank must take in order to avoid being fixed with notice of undue influence exerted by another has no application to a case where no third party is involved. The question in such a case is: was there in fact undue influence; not did the donee know that he was exerting undue influence?

Evidence

7. Both Mr and Mrs Papouis gave evidence, but they had little knowledge of Miss Bennett's financial affairs or her relationship with Mrs Gibson-West. Mrs Gibson-West also gave evidence. Mr Blackett-Ord, who appeared on behalf of Mr Papouis, made a full-scale attack on her truthfulness. Mr Leach, a legal executive who drew up the deed of trust also gave evidence, and Mr Eidinow, who appeared for Mrs Gibson-West, attacked both his competence and his reliability. In view of the conflicts of evidence and in view of the attack on Mrs Gibson-West's veracity, I will begin by setting out the story as it appears from the contemporaneous documents and uncontroversial evidence, before evaluating the controversial evidence of the witnesses.
8. I should add that there are many conflicts of evidence which I have not found it necessary to resolve.

The facts in more detail

9. Miss Bennett was born in 1910, so that during the period on which I will concentrate she was in her late 70s and 80s. During her working life she was a telephonist at Clarence House, the residence of the late Queen Mother, of which she was very proud. She retired at the age of 55, with a pension from what was then the GPO. She began to receive her state pension at the age of 60.
10. She lived in a one-bedroomed flat at 52 Beauclere House, 67 Brighton Road, Sutton as a council tenant. By the mid-1990s the rent was of the order of £73 per week. She lived frugally on her pensions, although there is some evidence that she dabbled in shares on the stock market. By the late 1980s Miss Bennett had become aware that council tenants had the right to buy. However, she could not afford to buy the flat herself. There was a suggestion that Mrs Gibson-West might put up the money to buy the flat. This provoked opposition from Mr Papouis. In the result, Miss Bennett decided not to go ahead. She explained her reasons in a letter that she wrote to her niece, Stella, on 21 March 1989. She said:

"I feel I would like to clear this matter. I have decided with much heart searching not to let anyone buy the flat.

For one thing I value my independence and I can foresee difficulties with three people who don't and never will speak to each other.

This worry has been on my mind all the time, it's a shame I did not say no right at the start.

Make no mistake, what ever you choose to believe, this has nothing to do with Valerie Stella; only that she was to be a third share party. I have only just told her of my decision.

This I must try and put from my mind, worry is bad for me especially just now.

I shall always manage, I do not need any more savings, I could not afford to buy a flat myself, not practical at my age and I live fairly moderately.

Sorry to disappoint all you but the family situation will never alter of that I am sure."

11. On 30 June 1992 Miss Bennett made a will. It has all the hallmarks of having been "home-made". She appointed Mrs Gibson-West as her sole executrix. After making various bequests of specific chattels, she left her residuary estate to her nephew and nieces in equal shares. It is this will that has been admitted to probate. At some stage she sent a copy of the will to each of the three residuary beneficiaries. A copy of her letter to Mrs Avery has survived. It is undated, and the best guess as to its date is some time in 1995, since it describes her will as having been made "years ago". Miss Bennett said in her letter:

"What I do want to impress upon you, at no time have I been manipulated and never will be. I am not stupid."

12. On 27 June 1995 Miss Bennett made a manuscript addition to her will. It read:

"The washing machine is to go to Valerie and the spin dryer

the freezer to go to a neighbour"

13. On 13 December 1995 Miss Bennett wrote a note. It read:

"I wish my niece Valerie Gibson to take charge and cash any savings bonds, Abbey National etc."

14. On 8 July 1996 Miss Bennett opened a new current account with Abbey National. The opening balance was £8,900. From September 1996 to the beginning of 1998 fairly regular payments, at roughly fortnightly intervals, were made into the account. The amounts were usually £200 or £300. The practical significance of this account was that it was a chequeing account. Miss Bennett already had an account with Abbey National, but it was not one which enabled her to write cheques. The balance of the latter account was £18,900, and it was from this account that Miss Bennett withdrew the £8,900 to open the new current account.
15. By about this time, Miss Bennett revisited her decision not to exercise her right to buy the flat. Mrs Gibson-West said that she discussed it with her aunt and was mildly discouraging. Miss Bennett went to the Sutton Civic Centre, where she picked up the relevant forms. On 9 August 1996 she applied to buy her flat, and the London Borough of Sutton admitted her right on 6 September 1996. After taking off the discount, the cash price would be £12,030. Miss Bennett was notified of this on 13 November 1996. But Miss Bennett did not have £12,030 to spare. So after consulting her husband, Mrs Gibson-West said that she would put up the money.
16. The two ladies consulted Mr Leach, who was a legal executive employed by Copley Clark & Bennett, a firm of solicitors in Sutton. One of the striking features of this dispute is that there is a sharp conflict of evidence about what instructions were given to Mr Leach. I will deal with this later. Mrs Gibson-West said that Miss Bennett chose the firm. Mr Leach, however, said that the first contact was made by Mrs Gibson-West. The opening words of his first letter to Miss Bennett, dated 20 November 1996 ("Further to my meeting with your niece Mrs Gibson earlier this week") support Mr Leach's evidence, and I accept it. Mr Leach's letter continued:

"I understand that the money to fund the purchase is being provided by your niece Mrs Gibson and you wish for me to draw up a Declaration of Trust following completion in order that upon your death or subsequent sale of the property the full proceeds of sale shall pass to her. Obviously, I feel that we shall need to arrange a meeting to discuss this aspect in detail prior to completion."

17. On 27 January 1997 Mr Leach reported to Miss Bennett on the draft lease which he had received from the London Borough of Sutton.
18. On 6 February 1997 Mr Leach met Miss Bennett alone. This was an important meeting. By this time the structure of the transaction had changed. Instead of Mrs Gibson-West providing the whole of the cash purchase price, the two ladies were going to pay roughly half each. Mr Leach made a note of the meeting. It reads as follows:

"Attending Miss Bennett.

Confirmed she would be contributing 50% of purchase price and remaining 50% will be provided by niece.

Intends to leave property to her niece Mrs Gibson as she has been kind to her by visiting each week and generally taking care of her.

Neither her nephew or other niece have shown any interest.

Wants to protect property as she would like to move nearer Mrs Gibson if her health gets worse."

19. It does not appear that there was a draft deed of trust in existence at that meeting. The conveyancing then proceeded towards completion of the grant of a long lease. Completion was due on 24 February 1997. On 18 February 1997 Mr Leach sent to Mrs Gibson-West a draft deed of trust. He did not send a copy to Miss Bennett. On 24 February 1997 Miss Bennett and Mrs Gibson-West met Mr Leach. The meeting lasted 20 minutes. Mr Leach's attendance note reads:

"Attending Mrs Bennett and Mrs Gibson by appointment.

Explaining to Mrs Bennett in detail the terms of the Declaration of Trust entered into by her and Mrs Gibson, which she fully understood and signed in my presence."

20. The material parts of the deed of trust read as follows:

"WHEREAS

(1) By virtue of a lease (hereinafter called "the Lease") dated the 24^th February 1997 the property known as 52 Beauclere House 67 Brighton Road Sutton Surrey registered at HM Land Registry under Title Number SGL …. was granted in fee simple to Mrs Bennett

(2) The purchase money of £12,030.00 paid by Mrs Bennett in consideration of the Lease was provided as follows:

i. a capital sum of £6,000 from Mrs Bennett

ii. The capital sum of £6,030 paid by Mrs Gibson

NOW THIS DEED WITNESSETH as follows:

1. Mrs Bennett covenants to pay all rates taxes maintenance charges and other sums due in respect of the property

2. Mrs Bennett acknowledges that the property owned by her equitably and beneficially as referred to above shall be held on trust for Mrs Gibson who shall be entitled to all sums due in respect of the proceeds of sale

IN WITNESS [etc]"

21. The first recital to the deed is, of course, legally inaccurate.
22. In June 1997 Miss Bennett altered her current account at Abbey National by putting it into the joint names of herself and Mrs Gibson-West. The balance in the account at that time was a little over £9,500. The pattern of regular payments continued after that date, although instead of being £200 or £300 they were £400 or £500, and were made at monthly rather than fortnightly intervals. Payments into the account ceased on 5 January 1998. Almost all the cheques drawn on that account were in fact signed by Mrs Gibson-West.
23. On 15 November 1997 Miss Bennett made another manuscript annotation on her will. It read:

"52 Beauclere House was purchased between my niece Valerie Gibson and myself and is to go only to my niece Valerie Gibson."

24. In April 1998 a new will was prepared for Miss Bennett. It followed the same form as the 1992 will, with one important change. Clause 3 made a specific bequest of the flat to Mrs Gibson-West or, in the event of her predeceasing Miss Bennett, to Mrs Gibson-West's daughter. (The washing machine and spin dryer were also left to Mrs Gibson-West). Although Miss Bennett executed this will on 2 April 1998, it was not properly attested and consequently it was not admitted to probate.
25. On 11 April 1998 Miss Bennett went into hospital. Unfortunately she never left, and she died there on 4 June 1998.

The disputed issues relating to the flat

26. The first disputed issue is whether the relationship between Miss Bennett and Mrs Gibson-West was one in which Miss Bennett trusted Mrs Gibson-West with her financial affairs. I have no doubt that the relationship between Miss Bennett and Mrs Gibson-West was warm and affectionate. Miss Bennett herself told Mr Leach that of her nephew and nieces Mrs Gibson-West was the only one who showed any interest in her, visited her every week and was generally kind to her. Mr Blackett-Ord submitted that the reason why Miss Bennett wanted to be generous to Mrs Gibson-West was because of the assistance she gave Miss Bennett. This may well be so. But I do not see how it advances a case of undue influence. On the contrary, generosity repaying past acts of kindness may be a perfectly intelligible reason why someone wishes to confer a benefit on another of his or her own free will.
27. Mrs Gibson-West also helped Miss Bennett by cashing her pension Giros at the Post Office. She told me that when she did so she was usually accompanied by Miss Bennett, who stayed in the car while Mrs Gibson-West went to queue in the Post Office. I accept this evidence. Mrs Gibson-West said that one of Miss Bennett's neighbours also collected her pension for her, and I accept this evidence too. I do not think that it is unusual for an elderly person to arrange for another person to collect his or her pension, and I do not regard this as evidence of any special trust or confidence that Miss Bennett placed in Mrs Gibson-West in the making of financial decisions.
28. Mr Blackett-Ord relied on the note of 13 December 1995. There was an issue whether Mrs Gibson-West knew of this note before Miss Bennett's death. She said that she found it in a book next to Miss Bennett's chair when she was going through Miss Bennett's possessions. There is certainly no evidence that the document was ever acted on during Miss Bennett's lifetime. Given Miss Bennett's habit of annotating her will, I accept Mrs Gibson-West's evidence. Mr Blackett-Ord submitted that even if I accepted that this note did not come to light until after Miss Bennett's death, it was still evidence of her state of mind in December 1995. I agree with him. But what does the note show? It does not clearly show that Miss Bennett wanted Mrs Gibson-West to "take charge" during her lifetime. It can be read as an instruction on what should happen after her death. That is the reading I prefer. But even if it should be read as applicable to Miss Bennett's lifetime, it is a clear and limited instruction, rather than a general discretion to Mrs Gibson-West to do as she pleased.
29. Mrs Gibson-West said that it was she who suggested to Miss Bennett that she open her cheque account at Abbey National. Again I accept this evidence. I do not think that this shows anything. When Miss Bennett opened the account, Mrs Gibson-West had no access to it. The suggestion to open a cheque account was, in any event, a sensible suggestion.
30. Mr Blackett-Ord submitted that as Miss Bennett's health deteriorated, she became more physically dependent on Mrs Gibson-West. There is little evidence of physical deterioration of Miss Bennett's health to any marked degree before the last year of her life. She suffered from ailments, to be sure, but I am unable to find that she did so to any degree that made her dependent. Moreover, physical frailty, even where it exists, can still be accompanied by mental robustness.
31. Miss Bennett's mental robustness is to my mind demonstrated by two things. First, in 1989 she refused to put in motion the right to buy. Admittedly this was many years earlier, so I must not place too much weight on it. Second, in the letter she wrote to Mrs Avery in 1995 she adamantly denied being manipulated. Although she may have been prone to self-deception, there is no evidence of this.
32. In addition Mr Papouis' own evidence suggests that Miss Bennett enjoyed dabbling on the stock exchange, which does not suggest an incapacity or an unwillingness to deal with her own financial affairs.
33. Mr Blackett-Ord submitted that I should also draw the inference that Miss Bennett relied on Mrs Gibson-West in financial matters from the terms of the deed of trust itself. However, this seems to me to be an invitation to assume that which it is necessary to prove.
34. I conclude that up to the making of the deed of trust the relationship between Miss Bennett and Mrs Gibson-West was not such as to raise any evidential presumption of undue influence which Mrs Gibson-West has to rebut.
35. The next disputed issue relates to the instructions that Mr Leach was given and the advice he gave. Mr Leach says that he met both ladies at his initial meeting on 18 November 1996. Although a meeting with both ladies does not sit comfortably with the opening of his letter to Miss Bennett of 20 November, neither side challenged his evidence that such a meeting took place. At that stage, it is important to remember that Mrs Gibson-West (through her husband) was to put up all the purchase money. Mr Leach said that Mrs Gibson-West raised the question of a deed of trust to protect her husband's investment. Mr Leach says that he explained the various different options available and that it was up to the two ladies to decide what would happen to the proceeds of sale following any sale of the property and following Miss Bennett's death. He says that at that meeting he was given specific instructions by both Miss Bennett and Mrs Gibson-West that they wanted the deed of trust to record that the proceeds of sale would go to Mrs Gibson-West on the sale of the property as well as on Miss Bennett's death. Mrs Gibson-West gave a very different account. She said that the initial instructions that Mr Leach was given were that she was to receive the property only in the event of Miss Bennett's death. She did not say in her witness statement what instructions (if any) Mr Leach was given about the destination of the proceeds of sale in the event of a sale during Miss Bennett's lifetime, but in her oral evidence she said that Miss Bennett would have been free to use them to buy another home, or even to pay nursing home fees, should the need arise.
36. Mr Leach's letter of 20 November to Miss Bennett sets out his understanding of what the deed of trust was to do. Its objective was that upon "your death or subsequent sale of the property the full proceeds of sale shall pass" to Mrs Gibson-West. Although the letter is not a model of clarity (because of the ambiguity of the word "subsequent") it is, in my judgment, more consistent with Mr Leach's version of his instructions. Although Mr Leach is not a first-class lawyer, I do not believe that he would have misunderstood his instructions so badly. I prefer his evidence to that of Mrs Gibson-West about the instructions he was given.
37. In his letter of 20 November, Mr Leach very properly suggested a meeting with Miss Bennett. That took place on 6 February 1997. By now, of course, the structure of the transaction had changed, and Miss Bennett was to contribute half the cash purchase price. I have already quoted Mr Leach's attendance note of the meeting. Mr Leach gave evidence about that meeting. He said that Miss Bennett explained that the reason why she was paying half the purchase price was that she wanted to retain some independence. He said that he went through with Miss Bennett exactly what the Deed of Trust would say. He said that his instructions were that the proceeds of sale were to go to Mrs Gibson-West either on the sale of the property or on Miss Bennett's death. He explained the implications of this to Miss Bennett "very carefully and clearly". He continued:

"I explained to her that essentially her interest in the property would not be protected, and she had no rights in either the proceeds of sale or the property. I gained the impression that Miss Bennett understood what the implications of the Deed of Trust were. She indicated that she may decide to sell the property and move closer to Mrs Gibson-West if her health deteriorated. I think that this was not a clear intention of hers but that it was a possibility in the future. The reason she gave about not being concerned about her interest being protected was that she was confident that Mrs Gibson-West would not leave her out on the street and would always look after her. I think that it was for this reason that she was willing to retain no interest in the proceeds of sale."

38. Although the detail of this explanation is not recorded in his attendance note, I do not think that what he said in evidence is inconsistent with it. It is true that the attendance note records Miss Bennett's wish to "leave property" to Mrs Gibson-West and that this might be thought to refer to a testamentary gift. But the note also records that she wanted to "protect property", which Mr Leach said was a desire to keep the property out of the hands of other members of the family. I accept Mr Leach's evidence. I find, therefore, that he explained to Miss Bennett that she would have no rights in either the proceeds of sale or the property. It is true that there was no draft deed in existence at the date of the meeting, but I do not think that that matters, as the essential concept of having no rights is not hard to grasp. Mr Leach does not appear to have explained in terms that putting up part of the purchase price would not give Miss Bennett independence if the deed of trust was executed as he envisaged. But the point is that he did explain that Miss Bennett would have no rights in the property or its proceeds of sale. That is all that was required.
39. On 24 February 1997 the final meeting took place. Mr Leach's attendance note records that he explained the deed of trust to Miss Bennett and that she understood it. I place some weight on the fact that the note records that Mr Leach explained the deed to Miss Bennett (as opposed to both ladies). This suggests to me that Mr Leach was aware of the particular need to satisfy himself that Miss Bennett appreciated the consequences of what she was doing. Mrs Gibson-West did not directly contradict that statement although she said that Mr Leach said that the property would be hers on Miss Bennett's death. If Mr Leach did explain the deed (as his contemporaneous note records) he may well have said that the property would pass to Mrs Gibson-West on Miss Bennett's death as that would have been one of the various consequences of the deed. But I do not believe that he would have misunderstood the import of the deed that he himself had drafted to such an extent as to have said that that was the only consequence of it. To the extent that Mrs Gibson-West's evidence conflicts with Mr Leach's, I prefer Mr Leach's. Mr Blackett-Ord was critical of the time taken in explaining the deed (20 minutes). But the deed has only two operative clauses, and 20 minutes would, in my judgment, have been ample time in which to explain them to Miss Bennett.
40. I find, therefore, that Mr Leach did explain to Miss Bennett the effect of the proposed transaction, that Miss Bennett understood that effect, and decided to enter into it. I might add that I do not find that surprising. I have no doubt that Miss Bennett was confident that Mrs Gibson-West would not turn her out into the street, and would permit her to continue to live in the flat rent-free until she died. That is indeed what happened. But that confidence does not, to my mind, constitute an abuse of influence by Mrs Gibson-West. What in fact happened was exactly what Miss Bennett wanted to happen. There is no direct evidence of undue influence and I do not consider that it would be right to infer it
41. I conclude that Mr Papouis has not made out a case of undue influence in relation to the deed of trust. It follows that Mrs Gibson-West was beneficially entitled to the property.

The bank account

42. In her witness statement Mrs Gibson-West said:

"The purpose of my name being added to [Miss Bennett's] existing Abbey National Account … was not as a matter of convenience to allow me to pay bills on her behalf."

43. In cross-examination she agreed that the word "not" should be excised from that statement. This changed completely the thrust of her evidence. I find therefore that the purpose of the addition of her name to the account was simply a matter of convenience. In my judgment (subject to one point) the amount standing to the credit of the account remained Miss Bennett's beneficially.
44. That one point is this. Mrs Gibson-West said that she had herself made substantial deposits into the account after it had been put into joint names, and that these should be credited to her. However, in October 1994 she told her then solicitor:

"The credits thereafter are made by me but using aunt's money derived from her 2 pensions, tho' usually "topped up" by me."

45. I find that this is what happened. The increase in the amounts of the regular payments is explained by the fact that, consequent on the acquisition of the property, Miss Bennett was relieved of her liability to pay rent for it. In my judgment the amounts of the "top up" are either insignificant or are to be treated as gifts from Mrs Gibson-West to Miss Bennett. I conclude that the amount standing to the credit of the account at the date of Miss Bennett's death formed part of her estate. It follows, I think, that there must be an account and inquiry as to what has happened to that money and how much of it has in fact been expended in the administration of Miss Bennett's estate.