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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Barraclough v Mell & Ors [2005] EWHC B17 (Ch) (1 December 2005) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/B17.html Cite as: [2005] EWHC B17 (Ch) |
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CHANCERY DIVISION
LEEDS DISTRICT
REGISTRY
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B e f o r e :
____________________
ALAN ![]() | Appellant | |
- and - |
||
MARILYN EDWINA ![]() | Defendant and Part 20 Claimant | |
(1) FIONA FENNEY (2) LOUISE NEEDHAM |
Part 20 Defendant |
VERSION
OF JUDGMENT
Crown Copyright ©
1.Introduction
2.Representation
3.Witnesses
4. The Facts
4.1 Background
AlanBarraclough
MarilynMell
The family feud
4.2 The 1999 gift
28 MAY 1999
HEREBY LET IT BE KNOWN THAT ON THIS DAY MARIAN MELL
HAD £20,000 FROM HER
PARENTS AND THAT THE SAID AMOUNT WILL BE DEDUCTED FROM HER SETTLEMENT OF THE
WILL ON MY PARENTS DEATH – PLUS INTEREST THAT WOULD HAVE BEEN EARNED
L CLAPHAM
L CLAPHAM
4.3 Relevant terms of Leonard Clapham's Will
Clause 5
I GIVE DEVISE AND BEQUEATH the whole of my real estate and
personal estate not heretofore otherwise disposed of unto my Trustees upon
trust to sell ………… UPON TRUST for such of them my said daughters
as shall survive me and if more than one in equal shares absolutely
PROVIDED ALWAYS that if either of them my said daughters shall
predecease me leaving a child or children living at my death and who shall
attain or who shall have attained the age of 21 years then such child or
children shall take and if more than one then equally between them the share
or shares in my Residuary estate that his her or their mother would have taken
had she or they attained a vested
interest
Clause 6(10)
No trustee of these trusts shall be liable for any loss whatsoever caused by any breach of duty on the part of himself or any other person unless the same shall have happened through his own personal act done by him either with the knowledge that it was wrongful or without any belief that it was rightful and not caring whether or not it was wrongful.
4.4 Death of Leonard Clapham
4.5 Death of CarolBarraclough
4.6 The completion of the sale of 95 Brecks Lane
4.7 The distribution of the £64,000
The initial meeting at "T Max"
The meeting at Louise Needham's house on 17th June 2004
4.8. The request for the return of the money.
- At some stage during the day Marilyn
Mell
phoned Atherton Godfrey. The file note (239) suggests that it was 2.10 p.m but that is difficult to reconcile with other events on that day. In any event the file note records Marilyn
Mell
as saying that Alan
Barraclough
was not entitled to the money. In the events that had happened the money was to go the children and they have had it already.
- At some stage of the day Marilyn
Mell
![]()
visited
Dawson & Burgess and consulted the senior partner Mr Williams. He only saw Marilyn
Mell
briefly. After taking instructions and seeing the will he advised her that she had distributed the estate to the nieces in error. In effect he advised that Atherton Godfrey were correct. It was his impression that Marilyn
Mell
had honestly believed that her nieces were entitled to the monies and that she appeared to be distraught at the news that he had given her. He describes her as shocked and upset.
- At some stage of the day Marilyn
Mell
![]()
visited
Louise Needham. It is common ground that Marilyn
Mell
was
very
upset when she
visited
her. She was in tears. It is common ground that Louise Needham hugged her in an attempt to comfort her. There is a difference in recollection as to the conversation that followed.
1) MarilynMell
says that she told Louise Needham that she had misinterpreted the will. She told that the money she had given her should have gone to Alan
Barraclough.
Louise Needham said "Is that all ? I thought someone else had died.". In any event Marilyn
Mell
asked for the cheque back. Louise Needham immediately agreed and wrote out a cheque for £32,000 which she handed to Marilyn
Mell.
At no stage did she offer to return the following week with another cheque for Louise Needham. She did not need the monies for cash flow purposes as she had the balance of the purchase price in her bank.
2) Louise Needham does not think that Marilyn
Mell
said she had made a mistake. She says that she had received a letter from Alan
Barraclough's
solicitor. She said she had to send him a cheque. In her witness statement she refers to a figure of £57,000 but it is not clear where this comes from. In any event Marilyn
Mell
offered to come back next week with another cheque when she had paid Alan
Barraclough.
Louise Needham felt it was appropriate to write out a cheque for £32,000 – so she did so.
- At some stage during the day Marilyn
Mell
saw Fiona Fenney. It was at The Star Inn at Barnby Dunn. Fiona Fenny thinks it was at about 12.30 pm. Marilyn
Mell
thinks it was after she had seen Louise Needham. In any event it is common ground that Marilyn
Mell
was agitated. Fiona Fenney does not think she was in tears. They went either to the other side of the room or to a separate room. Marilyn
Mell
explained that she had a solicitor's letter and that she needed the money back immediately. Fiona Fenney thought it inappropriate to be discussing this whilst she was at lunch with her friends. Accordingly she told her to come and see her that evening. Marilyn
Mell
called again that evening but Fiona Fenney was out.
- At some stage during the day Louise Needham spoke to Fiona Fenney on the phone and discussed the position. According to Louise Needham her sister said indicated that Marilyn
Mell
had not said that she would return the cheque in a few days.
5. Liability of Fiona Fenney and Louise Needham
5.1. The law.
5.2 Were the payments gifts?
- There was a rift between Carol
Barraclough's
side of the family and Marilyn
Mell's
side of the family. That rift meant that Marilyn
Mell
had not spoken to Fiona Fenney for 3 years before the payment. She did not even talk to her when the payment was made.
'But if the gift is so large as not to be reasonably accounted
for on the ground of friendship, relationship, charity, or other ordinary
motives on which ordinary men act, the burden is upon the donee to support
the gift.' (See (1887) 36 Ch D 145 at 185,
There is no suggestion of any undue influence here. However payments of
£32,000 to two estranged nieces when Marilyn Mell
had other more obvious
objects of potential bounty do in my
view
are not to be reasonably
accounted for on the ground of friendship, relationship, charity, or other
ordinary motives on which ordinary men act
6. Liability of MarilynMell
to Alan
Barraclough.
6.1. The law on Trustee Exemption Clauses
In 1998 in Armitage v
Nurse the Court of Appeal dispelled all doubts as
to the
validity
of trustee exemption clauses which exclude liability for
ordinary or even gross negligence. The court held that a clause … cold exclude
the trustee from liability for loss and damage to the trust property "no
matter how indolent, imprudent, lacking in diligence, negligent or wilful he
may have been, so long as he had not acted dishonestly". It is now settled law
that trustee exemption clauses can
validly
exempt trustees from liability for
breaches of trust except fraud.
In each case the court must construe the words of the exemption clause in light of the conduct complained and decide whether liability has been excluded by the terms of the clause. In carrying out this exercise the clause must be construed fairly according to the natural meaning of the words used.
6.2. Clause 6(10)
unless the same shall have happened through his own personal act done by him either with the knowledge that it was wrongful or without any belief that it was rightful and not caring whether or not it was wrongful.
- Marilyn
Mell
knew that the payment to the nieces was wrong and not in accordance with Leonard Clapham's will or
6.3. Effect of the breach of trust.
7. Double Portions
7.1 The Law
- A portion is something given by a parent to establish the child in life or make provision for him or her. Whether a gift was a portion depended upon the intention of the donor. It is not a term of art.
- If both a gift by will to a donee and a later gift inter
vivos
by the testator to the same donee are (to use expressions used in
various
authorities) "pure bounty," "spontaneous bounty" or "mere gifts" then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will thus be able to take both. In the absence of special considerations such gifts will be taken to be "pure bounty" or "mere gifts:" An example of a special consideration sufficient to deny the gift the character of "pure bounty" is where a gift by will has a particular purpose identified in the will itself. The language used in the will may show that the gift is intended, for example, to meet a particular moral obligation: In re Pollock; Pollock
v.
Worrall (1885) 28 Ch.D. 552, 556. Another type of special consideration is found in the case where the language of the gift is neutral as to its purpose but where the totality of the circumstances surrounding the gift, as shown by admissible evidence, is such as to suggest that the gift was a "portion." A portion can be given by will or inter
vivos.
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"The rule against double portions rests upon two hypotheses:
first of all, that under the will the testator has provided a portion and,
secondly, that by the gift inter
vivos
which is said to operate in
ademption of that portion either wholly or pro tanto, he has again
conferred a portion. The conception is that the testator having in his
will given to his children that portion of the estate which he decides to
give to them, when after making his will he confers upon a child a gift of
such a nature as to amount to a portion, then he is not to be presumed to
have intended that that child should have both, the gift inter
vivos
being
taken as being on account of the portion given by the will. When the word
'portion' is used in reference to the gift inter
vivos,
it has a
qualitative significance, in this sense, that it is not every gift inter
vivos
that will cause the rule to come into operation. If a testator gives
to a child as pure bounty and by way merely of a present a sum of money,
that will not have the character to cause the rule to come into operation.
Similarly there may be
various
reasons why the testator should give
property to a child. He may wish to free him from some embarrassment, or
something of that kind. In cases of that sort upon the facts a gift may
not be a portion at all, in which case, of course, the rule does not
apply."
7.2. Was the gift a portion?
7.3 Is the presumption rebutted?
7.4 Conclusion
8. Conclusion
- Louise Needham and Fiona Fenney are each liable to repay the £32,000 with interest to Marilyn
Mell
as executor of Leonard Clapham's estate.
JOHN BEHRENS