Sillett and another v Meek
[2007] EWHC 1169 (Ch)
CHANCERY DIVISION
MICHAEL FURNESS QC (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
HEARING DATES: 26-28 FEBRUARY 2007, JUDGMENT DATE: 16 MAY 2007
Evidence - England and Wales - Presumption of resulting trust - Role of
presumption - Role of court when evidence available.
Resulting trust - England and Wales - Presumption - Role of presumption - Role
of court when evidence available.
A deceased had had a valuable account with the Banque Luxembourg which
was not mentioned in her will. The deceased had acquired the account by
survivorship from her mother who had put the account into their joint names.
The deceased in turn put the account into the joint names of herself and a friend
Mrs Meek who was also named as an executor in the will and who also received
a modest legacy in the will. Mrs Meek took the position that the account was a
gift to her by the deceased and action was taken to remove her as an executor
owing to conflict of interest. The new executors brought an action claiming that
the account was part of the estate and argument at trial focused on the
presumption of resulting trust. There was conflicting evidence as to what the
deceased had said at the time of putting the account into joint names.
Held: The presumption of advancement operated only where there was no
significant evidence or the evidence was inconclusive. Once evidence became
available the presumption fell out of account. There was no minimum level of
evidence required to rebut the presumption which was no more than a long stop
to provide the answer when the facts and circumstances failed to yield a
solution. The totality of the evidence indicated that the deceased had, at the time
of putting the account into joint names, intended that the creation of the joint
account was a matter of administrative convenience only. The evidence
indicated a resulting trust and the presumption had no application (see [34],
[35], [53], [54], below). Vandervell v IRC [1967] 2 AC 291 Fowkes v Pascoe
(1875) 10 Ch App 343 and Westdeutsche Landesbank Girozentrale v Islington
London BC [1996] AC 669 applied. Aroso v Goutts & Co [2002] 1 All ER
(Comm) 241 and Marshal v Crutwell (1875) LR 20 Eq 328 distinguished.
EDITORS' NOTE
A helpful analysis of the 'secondary' nature of the presumption.
Cases referred to in judgment
Aroso v Coutts & Co [2002] 1 All ER (Comm) 241.
Fowkes v Pascoe (1875) 10 Ch App 343, [1874-80] All ER Rep 521, CA.
Hammond v Osborn [2002] EWCA Civ 885, [2002] 2 P & CR D 41.
Marshal v Crutwell (1875) LR 20 Eq 328.
Royal Bank of Scotland v Etridge {No 2), Barclays Bank pic v Coleman,
Bank of Scotland v Bennett, Kenyon-Brown v Desmond Banks & Co {a
firm) [2001] UKHL 44, [2002] 2 AC 773, [2001] 4 All ER 449, [2001]
3 WLR1021. Vandervell v IRC [1967] 2 AC 291, [1967] 1 All ER 1, [1967] 2
WLR
87, HL. Westdeutscbe Landesbank Girozentrale v Islington London BC
[1996] AC
669, [1996] 2 All ER 961, [1996] 2 WLR 802, HL.
Counsel:
Richard Wilson for the claimants.
Francis Moraes for the defendant.
Solicitors:
Johnson Sillett Bloom for the claimants.
Bathurst Brown Downie & Airy for the defendant.
Cur adv vult
16 May 2007. The following judgment was delivered.
MICHAEL FURNESS QC.
INTRODUCTION
[1] This action is brought by the personal representatives of Juliet Mari
Whittaker deceased (Mrs Whittaker). It concerns an investment account
originally held at the Banque de Luxembourg, and referred to as Park Lane
19.117 (the account). Before February 2001 the account was owned legally and
beneficially by Mrs Whittaker. On 5 February 2001 the account was placed by
Mrs Whittaker into the joint names of herself and the defendant, Mrs Meek. It
remained in their joint names up to Mrs Whittaker's death on 15 December
2003. Mrs Meek claims that the transfer into joint names was intended by Mrs
Whittaker to be by way of gift, so that she is now the beneficial owner of the
account by survivorship. The claimants, for the estate of Mrs Whittaker, say
that the transfer was
not intended to be a gift and was made only for administrative convenience, and
that Mrs Meek at all times held her interest in the account on resulting trust for
Mrs Whittaker and, now, her estate. In the alternative the claimants allege that,
if the transfer into joint names is found by the court to have been by way of gift,
there was a relationship of trust and confidence between Mrs Meek and Mrs
"Whittaker such as to raise a presumption of undue influence, which they allege
Mrs Meek cannot rebut. Mrs Meek says that no such relationship existed, and
that in any case the gift was entirely above board and genuinely intended by
Mrs "Whittaker. There is also a dispute, raised by Mrs Meek's counterclaim and
by the claimants' Pt 20 claim over Mrs Meek's expenses while acting as an
executor of Mrs Whittaker's estate.
THE BACKGROUND FACTS
[2] I begin by setting out facts of Mrs Whittaker's life, so far as relevant to
these proceedings. She was born on 24 July 1932. She built a successful career
in public relations until her retirement in the 1980s, by which time she was
comfortably off financially. She lived in a house which she owned in Cleaver
Square in London.
[3] The account was originally owned by Mrs Whittaker's mother, Mrs Olive
Roberts. In November 1974 the account was transferred into the joint names of
Mrs Roberts and Mrs Whittaker. In evidence were two letters, one from Mrs
Roberts and one from Mrs Whittaker, stating Mrs Roberts' intention that the
account should become a joint account, and recording Mrs Whittaker's
renunciation of all claims which she might have on the joint account until her
mother's death. Mrs Whittaker then states 'I shall be the sole beneficiary of the
account'. The transfer into joint names seems to have been effected later that
month. At the same time, inquiries were made at Mrs Whittaker's instigation as
to whether, in view of the fact that the account was to be placed in joint names,
there was any need for Mrs Roberts to make a will in Luxembourg in order to
ensure that the funds in the account were passed on to Mrs Whittaker on her
mother's death. The reply was that no such will would be necessary.
[4] On 3 February 1976 Mrs Roberts made her last will, by which she left all
her estate to Mrs Whittaker and appointed her sole executrix. Mrs Roberts died
on 13 February 1983 and the benefit of the account thereupon passed to Mrs
Whittaker by survivorship.
[5] The court had the benefit of evidence from three witnesses who were
long-term friends of Mrs Whittaker, and I should say something about when
and how those friendships came about. The second claimant, Lady Helen Lowe,
met Mrs Whittaker in 1961 when they shared a house with another friend in
Paris. In 1978 Lady Lowe moved to the Isle of Wight, and thereafter saw Mrs
Whittaker less often, although they
stayed in telephone contact. Mrs Whittaker used to visit her two or three times
a year before her husband died in 1986, and thereafter about once a year. Lady
Lowe felt a particularly close relationship with Mrs Whittaker because Mrs
Whittaker arranged for the private adoption by which Lady Lowe and her
husband adopted their son William. Mrs Whittaker became William's
godmother.
[6] Mrs Bronwen Ryan was Mrs Whittaker's cousin. She knew Mrs
Whittaker well in childhood, but thereafter contact was more limited until the
1990s. From that time she spent most Christmases with Mrs Ryan and her
husband, and then went on to spend New Year with Mr and Mrs Meek. It was
to Mrs Ryan that Mrs Whittaker first went on being diagnosed with cancer,
before going on to stay with Mr and Mrs Meek. Mrs Meek met Mrs Whittaker
in the late 1960s, through Mrs Meek's husband. Mrs Whittaker was particularly
close to Mrs Meek at the time of the death of Mrs Meek's husband, and gave
her a lot of support at that time.
[7] Her friends' evidence gave a good picture of Mrs Whittaker as a person.
Lady Lowe described her as entertaining and very generous—she liked her
friends to enjoy what she enjoyed. She also described her as 'extremely
demanding'. Certainly she does not seem to have been minded to take no for an
answer, whether she was asking for, or conferring, a favour. So far as concerns
business matters, the general view was that she was capable and businesslike
and generally took professional advice over her affairs. She was very
independently minded, highly intelligent and held strong opinions. As Mrs
Ryan put it, if you disagreed you did not argue. Mrs Ryan said Mrs Whittaker's
friends were in and out of favour by mutual consent. She remarked on how
many people at Mrs Whittaker's funeral said that they had not seen her for
years because they had fallen out.
[8] Mrs Whittaker did make gifts to friends from time to time. In addition to
paying for her airfare to France in 2001 (see below) Mrs Whittaker also at one
point gave Lady Lowe £1,000 when she was in financial difficulties. Mrs Meek
also gave evidence that Mrs Whittaker had given financial assistance to other
people, including her husband, her partner, Michael, a close friend who needed
medical care and two other people whose names Mrs Meek declined to give.
Mrs Meek did not know the amounts of these gifts, although she knew she had
bought a car for her partner and helped to set him up in business. Mrs
Whittaker also offered assistance to Mrs Meek to buy a house near Cleaver
Square, and later in renovating her house, but Mrs Meek declined these offers.
[9] Mrs Whittaker was first diagnosed with cancer in 1995, when she was
treated, and later convalesced with Mrs Meek and Mrs Ryan. The cancer went
into remission and Mrs Whittaker returned to normal health.
In August 2000 Mrs Whittaker's cancer returned, although she responded well
to treatment and her ability to lead a normal life seems not to have been greatly
affected. It was around August 2000 that Mrs Ryan recalls a number of
conversations with Mrs Whittaker, in which Mrs Whittaker told her that she
was going to make a new will, under which Mrs Ryan would no longer be an
executor. Mrs Ryan was grateful for this. Mrs Whittaker said that she was
proposing to appoint Mrs Meek to be the executor under her new will because
she trusted her as an upright and honest person who would do a good job. Mrs
Ryan recalls a discussion in general terms about the will, as a result of which
Mrs Ryan understood that the bulk of the estate would go to Mrs Whittaker's
godchildren. Nothing was said about any benefit to Mrs Meek, and no mention
was made of the account, although Mrs Ryan knew of its existence. Mrs Ryan
agreed to be appointed to act under an enduring power of attorney. She recalls
Mr Nicholas Downie, of Bathurst Brown Downie &C Airy, who was Mrs
Whittaker's solicitor, telling her, on the occasion that she attended to execute
the power of attorney, that he was amazed how clear and business-like Mrs
Whittaker was, despite her illness. Mrs Ryan herself confirmed that Mrs
Whittaker remained remarkably compos mentis until just before she died.
[10] Mrs Meek says that in late 2000 she was asked by Mrs Whittaker to be her
executor, to which she agreed. She also says that it was around this time that
Mrs Whittaker told her she wished to put the account into
her joint names. In doing so Mrs Meek's evidence is that Mrs Whittaker used
words which showed that she intended Mrs Meek to have the account
beneficially after her death, although Mrs Meek understood that Mrs Whittaker
was to have sole control over the account while she was alive. What was said
about this, and the effect of the words used, is a critical issue in these
proceedings and I deal with this in more detail below. [11] In early 2001 Mrs
Whittaker executed three documents of significance to this dispute. On 8
January she made a will, which turned out to be her last. She appointed Mrs
Meek and her solicitor, Mr Downie as executors. She left a number of
legacies—an item of jewellery each to Mrs Ryan, Lady Helen Lowe and Mrs
Meek; a pecuniary legacy of £8,000 to Mrs Meek; two legacies totalling £7,500
to two other individuals (one of whom was her goddaughter) and £20,000 to
Macmillan Nurses. Her personal chattels she left to Mrs Meek to be disposed of
in accordance with any note or memorandum which she might leave. The
residue of her estate she left as to 15% to Lady Helen Lowe, and the remaining
85% between her two stepdaughters, and her two godsons, Benedict Farwagi
and William Lowe (Lady Lowe's son). Also on 8 February she executed an
enduring power of attorney in favour of Mrs Meek and Mrs Ryan. Also on 8
January she executed an enduring power of attorney appointing both
Mrs Ryan and Mrs Meek her attorneys. Then on 5 February she and Mrs Meek
executed the documentation necessary to place the account into their joint
names. I will deal in more detail with this documentation below. The assets in
the account remained, as previously, under discretionary management by ABN
Amro.
[12] At this point I should say something about the involvement of Mr Downie
in Mrs Whittaker's affairs. In correspondence before the court Mr Downie's
first letter, on a matter unrelated to these proceedings, is dated 20 April 2000.
On 14 May 2000 he wrote to Mrs Whittaker in which he said this:
'I have received a certified copy death certificate for your mother and
have sent this to Andy Hames [of ABN Amro]. I have not yet received a
copy of the Grant of Probate but I understand from Mr Hames that this
may not be necessary and if that is the case the Luxembourg account
should be operable by either you or Kathy henceforward. I will let you
know the position when I have some more news.'
The reference to 'Kathy' is evidently a reference to Mrs Meek. The inference is
that Mrs Whittaker had already discussed with Mr Downie her intention to put
the account in joint names. Unfortunately the letter is ambiguous in failing to
make it clear whether Mrs Whittaker intended to make a gift of the account, or
merely wished Mrs Meek to be able to operate it (for example in event of Mrs
Whittaker becoming incapacitated).
[13] In a letter of 26 June 2000 Mr Downie reported to Mrs Whittaker that he
believed 'all is well in Luxembourg'. He then goes on to say that 'I and Kathy
will do our best to ensure that your father's remains are appropriately interred ...
I do hope you have a good time in France—Kathy has given me your address in
case I should need to contact either or both of you.' So it is clear that Mr
Downie is also in touch with Mrs Meek at this time as well. Clearly Mr Downie
is a potentially valuable witness, offering the possibility of an independent
insight into Mrs Whittaker's thinking about the account. Regrettably, until very
shortly before the trial Mrs Meek did not file a witness statement from Mr
Downie. At trial an undated witness statement was put in with a hearsay notice
saying that Mr Downie could not give evidence in person because he was
abroad on holiday. We therefore have only Mr Downie's untested witness
statement to go on and that, as it turns out, is a rather unsatisfactory document. I
should point out that Mr Downie remains a consultant in the firm acting for Mrs
Meek in this litigation.
[14] He begins by saying that Mrs Whittaker was referred to him by an
existing client (who was in fact Mrs Meek) and that he first took instructions
from her in about August or September of 2000 when she
wished to put her affairs in order, having recently been diagnosed with cancer.
Mrs Whittaker was indeed diagnosed with a recurrence of her cancer in August
2000, but Mr Downie overlooks the fact that the correspondence shows that he
was apparently advising her as early as at least April 2000. He says that he
cannot recall when he first learnt about the account but thinks was about the
time that Mrs Whittaker made her will (ie February 2001). Again this appears
to be untrue. I say 'appears to be' because although this was not suggested by
counsel at the hearing, re-reading Mr Downie's letters of 20 April, 14 May and
26 June I do wonder whether some or all of them have been misdated, as they
would make much more sense {particularly the letters of 14 May and 26 June)
if dated 2001.
[15] Mr Downie also says that he was never asked to give advice about the
account. In para 6 of his statement Mr Downie refers to the fact that the
account had originally belonged to Mrs Roberts and then says this:
'Her mother before her death, transferred the Account into joint names of
herself and [Mrs Whittaker] to facilitate the administration of her Mother's
offshore estate because the balance would pass by survivorship to [Mrs
Whittaker] on her Mother's death. I cannot say for certain but I am fairly
sure that [Mrs Whittaker] would have known that the beneficial ownership
of the account would have passed to her on her Mother's death and she did
of course know that she would become the sole beneficiary of the Account.
In the same way, [Mrs Whittaker] transferred the Account into the sole
names of herself and [Mrs Meek].'
This is as close as Mr Downie gets to a view on whether the transfer into joint
names was intended to be a gift. What is notably absent from his statement is
any recollection that Mrs Whittaker told him what the purpose of the transfer
into joint names was. Nor does he offer any recollection that he asked about
this. Frankly I find it surprising that the solicitor drafting Mrs Whittaker's will
and enduring power of attorney, who clearly knew at the time of the existence
of the account, and that it had been put into joint names, should have neither
known, nor, apparently, cared whether the account was to pass by survivorship
to Mrs Meek beneficially, or whether it was to pass to Mrs Meek as sole legal
owner, to be distributed under the will of which he and Mrs Meek were
appointed executors. Further insight into what passed between Mrs Whittaker
and Mr Downie might have been obtained from consideration of the file relating
to Bathurst Brown Downie & Airy's work on Mrs Whittaker's tax planning.
Unfortunately Bathurst Brown Downie &c Airy have lost this file, together with
the file relating to the preparation of the enduring power of attorney.
[16] I return to the significance of Mr Downie's evidence, or lack of it, in due
course. Meanwhile, it is convenient to dispose of the evidence of the only other
professional adviser who might have had any insight into Mrs Whittaker's
intentions at this time and that is Mr Hames of ABN Amro. There is an
attendance note dated 4 February 2005 recording a telephone message from Mr
Hames to Mr Downie in which Mr Hames says that 'the account was
transferred and opening in joint names to get round Luxembourg tax laws after
death. The account was opened on 9 October 2003 two months before Mrs
Whittaker died'. This last is a reference to the opening of the Jersey account (as
to which see below). Then in a letter dated 14 February 2005 Mr Hames
summarises the history of the account down to the transfer into joint names, as
to which he says:
'5/2/2001 Park Lane 19.117 became a joint account at BL in the names of
Mrs J Whittaker and Mrs K Meek. There was no reason given, other than
to avoid Luxembourg inheritance complications if Mrs Whittaker died.'
[17] To return to the chronology, in July 2001 Mrs Whittaker and Mrs Meek
rented a villa in France. At Mrs Whittaker's insistence Lady Lowe paid a visit.
During that visit Mrs Whittaker told Lady Lowe that she had appointed Mrs
Meek her executor because she was efficient and had the time, whereas Lady
Lowe lived miles away and was working. Lady Lowe's recollection is that
during that visit Mrs Whittaker treated Mrs Meek rather badly 'bossing her
around' and bickering with her. Lady Lowe's recollection of the way Mrs
Whittaker treated Mrs Meek ties in with a recollection of Bridget Farwagi
(given under a hearsay notice) that Mrs Whittaker never seemed to have much
respect for Mrs Meek.
[18] In a witness statement made earlier in these proceedings in support of an
application for a freezing order, Lady Lowe said that she considered that during
this holiday Mrs Meek was trying to make herself indispensable to Mrs
Whittaker with a view to benefiting from her will. I must say on the basis of the
evidence I have heard that I find that a most unlikely attitude for Mrs Meek to
have adopted. Certainly it is one which Mrs Meek hotly disputes. In crossexamination Lady Lowe rightly withdrew the allegation. Mrs Meek's account of
events was that there was indeed a fair amount of arguing between herself and
Mrs Whittaker, to the point at which Mrs Meek went to the travel agent to ask
about getting home by herself.
[19] In September 2001 Mrs Whittaker visited South Africa. She still
appeared to her friends to be remarkably well during this period. In February
2002 she underwent chemotherapy for the cancer, but even after that she still
seemed to be coping well.
[20] On 9 October 2003 the account was transferred from Banque de
Luxembourg to ABN Amro, Jersey. This transfer has been regarded by the
claimants in the past as in some way suspicious, and in need of explanation. I
think this is because the transaction took place only two months before Mrs
Whittaker died, and the actual transfers of funds and assets from Luxembourg
to Jersey continued right up to the day of her death. In my view there was
nothing suspicious about it at all. The reason for the transfer was clearly set out
in a letter of 1 July from ABN Amro to Mrs Whittaker, in which it is explained
that due to an internal reorganisation they would no longer be able to manage
accounts not held within the ABN Amro group. This was the reason for the
transfer to ABN Amro in Jersey. There is no question of any underhand
conduct by Mrs Meek in relation to this transaction, and by the time of the trial,
the claimants had come to accept that that was so.
[21] In November 2003 Mrs Whittaker was admitted to hospital for further
treatment. Only at this late stage had her health seriously deteriorated. On
discharge she was cared for by Mrs Meek but subsequently had to be
readmitted to hospital where she died on 15 December 2003. There is no doubt
that she was particularly difficult to deal with during the closing stages of her
life, as appeared clearly from Mrs Meek's and Mrs Ryan's evidence.
Particularly towards the end of her life Mrs Whittaker received a lot of care and
support from Mrs Meek. Lady Lowe accepted that. Mrs Meek looked after the
house in Cleaver Square when Mrs Whittaker was in hospital and attempted to
care for her when she was discharged from hospital shortly before her death.
Understandably Mrs Meek did complain at times about the amount she was
being asked to do.
[22] At the date of her death Mrs Whittaker's estate had a probate value of
£2,078,542 (gross), and the amount standing to the credit of the account was
£329,493.
EVENTS SINCE MRS WHITTAKER'S DEATH
[23] As noted above, Mr Downie and Mrs Meek were Mrs Whittaker's
executors. Following Mrs Whittaker's death Mrs Meek undertook a
considerable part of the practical aspects of administering the estate, including
making the funeral arrangements, while Mr Downie handled the legal aspects.
On 6 May 2004 Lady Lowe met Mrs Meek for lunch. Lady Lowe's account of
this meeting is that Mrs Meek refused to discuss the terms of Mrs Whittaker's
will. When asked about whether she had received anything under the will, Lady
Lowe recalls Mrs Meek saying that she had received a derisory amount, and
that she felt upset and used. Mrs Meek agrees that she refused to discuss the
will, but otherwise disputed this account, saying that she referred to her legacy
as a 'modest'
legacy. She accepted, however, that by saying what she did, without
mentioning the joint account, she did, on this occasion, give the impression that
Mrs Whittaker had not been generous to her. Mrs Meek said that at the time she
was somewhat upset about Mrs Whittaker's treatment of her, but this was due
to Mrs Whittaker omitting her name from a list of people she asked to be
thanked at her funeral, and not because of the small size of the legacy. Mrs
Meek said she did not discuss the specifics of the will with Lady Lowe because
she thought she ought not to do so until the will had been proved. She did
reassure Lady Lowe that Mrs Whittaker had been generous to her.
[24] Mrs Meek also said that she did not know how valuable the account was
at the time she had lunch with Lady Lowe. She never asked Mrs Whittaker
what was in the account while Mrs Whittaker was alive and she claimed to have
had no information about the account at all in May 2004, even though it was
nearly five months after Mrs Whittaker's death. During that time Mrs Meek was
opening Mrs Whittaker's post at Cleaver Square, but it appears that there was
no full valuation of the account delivered during that period, although there was
a bank statement relating to the sterling cash element of the account showing a
balance of just over £70,000 which was addressed to Mrs Whittaker at Cleaver
Square and bore the date 31/12/03. Mrs Meek said she might not have opened
all of the letters.
[25] In July 2004 Mr Farwagi, one of the residuary beneficiaries under the
will, took it upon himself to make some investigations into the estate and the
account. He and the other beneficiaries had recently found out about the
account because it had been included in the executors' Inland Revenue account
for inheritance tax purposes. I should make it clear that its inclusion in that
account was necessary whether the account had been gifted to Mrs Meek or
not, but the account is recorded in the executors' account as passing by
survivorship, and not under the will. Mr Farwagi made unannounced calls on
Mr Downie (on 20 July) and on Mrs Meek (on 22 July) and proceeded to ask
them questions about the estate and the account. He went armed with a
concealed tape recorder, with which he recorded the conversations. I have
heard the recordings and have had the benefit of an agreed transcript of the
tapes.
[26] After some initial, and justified, irritation at being interrupted by Mr
Farwagi without an appointment Mr Downie seems to have set out to answer
Mr Farwagi's questions about the estate to the best of his ability, granted that he
was doing so on the spur of the moment, without prior reference to the file. Mr
Farwagi asked a number of questions about the account. When he asked Mr
Downie why Mrs Meek was made a joint holder of the account, Mr Downie
replied that this was so that Mrs Meek 'could deal with the money as to what
Julie wanted to do with it (sic)'. He
[also said that 'in order for her to use the money after Julie's death the account
would have to be in her joint name.' At this point Mr Downie seems to be
suggesting that the purpose of the joint account was administrative, rather than
a gift. But Mr Farwagi, apparently missing this implication, then said that he
presumed that Mrs Whittaker meant Mrs Meek to receive the money in the
joint account and Mr Downie says 'without any shadow of doubt'. Mr Downie
then suggested that Mrs Whittaker might have left instructions to Mrs Meek to
deal with the account in some way, although he had no idea what those
instructions might be—'that's a matter between her and Julie.' Mr Downie
returned to this point later in the conversation when Mr Farwagi observed that
because Mrs Meek became sole owner of the account on Mrs Whittaker's death
'one has to assume she is benefiting from it.' Mr Downie's reply was 'Why do
you assume that ... there may be some other instruction that she has for the
distribution of the money.'
[27] The rest of the conversation reveals nothing about Mrs Whittaker's
intentions, largely because Mr Farwagi was more interested in investigating his
suspicions about how and why the transfer in joint names was effected rather
than whether the transfer was intended to confer a beneficial interest or not, an
issue the importance of which I think he was unaware at the time. What does
emerge is that Mr Downie was of the view that the joint account was nothing to
do with him as executor, and that his only responsibility was to make sure that
tax was paid on it. This, of course, was not the correct attitude to take, because
if the transfer into joint names did not confer a beneficial interest on Mrs Meek
then Mrs Meek now held the account as a nominee for the estate and it would
have been Mr Downie's job, as an executor, to recover it. It seems to me that in
the passages quoted in the preceding paragraph Mr Downie is trying to signal to
Mr Farwagi that his assumption that the account has been given outright to Mrs
Meek is not necessarily correct. Unless Mr Downie was deliberately trying to
mislead Mr Farwagi, and I see no reason why he should have done so, the clear
impression I get from this conversation is that Mr Downie was not convinced
that a gift had been made, but that he thought (wrongly) that that was none of
his business, or at least not something he was prepared to discuss in any detail
with Mr Farwagi.
[28] Mr Farwagi then called in unannounced on Mrs Meek, and proceeded to
question her. Mrs Meek was also, justifiably, annoyed at Mr Farwagi's tactics,
and although she remained polite throughout, her resentment at the intrusion
probably led her to be less communicative than might otherwise have been the
case, and allowances have to be made for that when considering her answers.
Mr Farwagi also mistakenly misrepresented some things which he had been told
by Mr Downie, but
this did not materially affect Mrs Meek's answers to his questions. Mrs Meek's
basic response to Mr Farwagi's questions was to refer him to Mr Downie, and
to say that it was all in the hands of the lawyers. In the circumstances I consider
that a reasonable, and not a suspicious response. Mr Farwagi however, is a
persistent man, and continued his interrogation beyond the point when most
people would have felt obliged to leave. The most he got from Mrs Meek on
the subject of the account was 'She's left it to me', and when Mr Farwagi asked
in response 'She told you she was giving it to you?' Mrs Meek repeated 'She's
left it to me'. Mr Farwagi then asked 'she gave it you as a gift did she?' and Mrs
Meek said 'She put it in our joint names and it now belongs to me, as do other
things.' Later on in the conversation Mrs Meek said, apropos the account: 'I
own that money ... That money belongs to me.'
[29] Mr Farwagi did refer to Mrs Meek's legacy of £8,000. Mrs Meek's
response was that this was 'a modest amount'. When Mr Farwagi took issue
with this Mrs Meek responded by saying 'It's a very tiny amount to me ...
particularly in relation to what you tell me is the whole estate.'
[30] Probate was granted to Mr Downie and Mrs Meek on 17 November
2004. In June 2005 the claimants sought the replacement of the executors
named in the will on the ground that there was a conflict of interest between
Mrs Meek and the estate. The court appointed the claimants as personal
representatives on 15 August 2005.
[31] I should also mention two other witnesses on behalf of Mrs Meek,
namely Jenny Maitland Jones and Dr Madeleine Harvey. Both of them gave
evidence as to Mrs Meek's honesty and integrity and her great qualities as a
friend, all of which I accept. Dr Harvey also met Mrs Whittaker on occasion
and she formed the same assessment of Mrs Whittaker's character—
sophisticated, independent and shrewd—as Mrs Whittaker's own friends.
SUBMISSIONS ON THE LAW
The intention to make a gift
[32] It is common ground that when one person transfers title in an asset to
another in circumstances where there is no presumption of advancement, and
where the instrument is silent as to the transferor's intentions, there arises a
rebuttable presumption that the transferee takes as a bare trustee for the
transferor. Mr Moraes (for Mrs Meek) stressed that this is not a difficult
presumption to overcome. In Vandervell v IRC [1967] 2 AC 291, [1967] 1 All
ER 1 Lord Upjohn said this ([1967] 2 AC 291 at 312, [1967] 1 All ER 1 at 8):
'... if, as in this case (a common form share transfer), the document is
silent, then there is said to arise a resulting trust in favour of A. But
this is only a presumption and is easily rebutted. All the relevant facts and
circumstances can be considered in order to ascertain A's intentions with a
view to rebutting this presumption.'
Lord Upjohn went on ([1967] 2 AC 291 at 313, [1967] 1 All ER 1 at 8) to
approve a passage from the judgment of Mellish LJ in Fowkes v Pascoe (1875)
10 Ch App 343 at 352, [1874-80] All ER Rep 521 at 527, which contains the
following observations:
' "Now, the Master of the Rolls appears to have thought that because the
presumption that it was a trust and not a gift must prevail if there was no
evidence to rebut the presumption, therefore when there was evidence to
rebut the presumption he ought not to consider the probability or
improbability of the circumstances of the case, and whether the
presumption was really true or not, but ought to decide the case on the
ground that the evidence of Pascoe and his wife taken alone was not
satisfactory. But, in my opinion, when there is once evidence to rebut the
presumption, the court is put in the same position as a jury would be, and
then we cannot give such influence to the presumption in point of law as to
disregard the circumstances of the investment, and to say that neither the
circumstances nor the evidence are sufficient to rebut the presumption." *
[33] The point being made here is that the presumption operates only where
there is no significant evidence one way or the other, or the evidence, such as it
is, is inconclusive. But once evidence becomes available the presumption falls
out of account. There is no minimum level of evidence needed to rebut the
presumption. As Lord Upjohn concludes ([1967] 2 AC 291 at 313, [1967] 1 All
ER 1 at 8):
'In reality the so-called-presumption of a resulting trust is no more than a
long stop to provide the answer when the relevant facts and circumstances
fail to yield a solution.'
[34] The point that the presumption is easily rebutted was also made by Lord
Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington
London BC [1996] AC 669 at 708, [1996] 2 All ER 961 at 989. Mr Moraes also
relied on the decision of Lawrence Collins J (as he then was) in Aroso v Coutts
& Co [2002] 1 All ER (Comm) 241 as an example of a case where the court
found the presumption was displaced by the evidence. It is indeed that, and the
judgment contains a valuable account of earlier authorities which dealt with the
placing of an account into joint names. The learned judge concluded that a gift
into joint names is capable of being a valid gift even though it is intended only
to take effect on death, and is not invalidated by reason of failing to comply
with the formal
requirements for a testamentary disposition. But an examination of the
evidence relied on by the judge in reaching his conclusion that a beneficial
joint tenancy was intended (see [2002] 1 All ER (Comm) 241 at 253-254)
shows how different the facts were from the present case. In particular, the
judge was of the view that the banking documents showed an intention to make
a beneficial joint gift, which is not, in my view, the position here (see below).
Also, there was unchallenged evidence from a bank official that he explained
to the donor that the effect of the transfer would be to make a gift of a
beneficial interest in the account to the transferee.
[35] Mr Wilson for his part relied on the case of Marshal v Crutwell (1875)
LR 20 Eq 328 as showing how difficult it is to establish an intention to make a
gift of a bank account by putting it in joint names. But again that is merely a
decision on the (very different) facts of that case. In view of the decisions of
the House of Lords referred to above it is, in any case, not possible for Mr
Wilson to maintain that the presumption is in principle a difficult one to
overcome.
Undue influence
[36] The claimants' fall back position if I conclude that Mrs Whittaker did
intend to give Mrs Meek a beneficial interest in the Luxembourg account is that
any such gift should be set aside on the ground that it was procured by undue
influence. In advancing this argument Mr Wilson relied on the leading modern
formulation of the basis for pleading undue influence as set out by Lord
Nicholls of Birkenhead in Royal Bank of Scotland v Etridge (No 2), Barclays
Bank pic v Coleman, Bank of Scotland v Bennett, Kenyon-Brown v Desmond
Banks & Co {a firm) [2001] UKHL 44 at [14], [2002] 2 AC 773 at [14], [2001]
4 All ER 449:
'Proof that the complainant placed trust and confidence in the other party
in relation to the management of the complainant's financial affairs,
coupled with a transaction which calls for explanation, will normally be
sufficient, failing satisfactory evidence to the contrary, to discharge the
burden of proof. On proof of these two matters the stage is set for the court
to infer that, in the absence of a satisfactory explanation, the transaction
can only have been procured by undue influence. In other words, proof of
these two facts is prima facie evidence that the defendant abused the
influence he acquired in the parties' relationship. He preferred his own
interests. He did not behave fairly to the other. So the evidential burden
then shifts to him. It is for him to produce evidence to counter the inference
which otherwise should be drawn.'
He then relied on a dictum of Ward LJ in Hammond v Osborn [2002] EWCA
Civ 885 at [60], [2002] 2 P 6c CR D 41 at [60] in support of the
proposition that once the claimant passed the threshold conditions for
establishing a presumption of undue influence, the onus then lay on the
defendant to prove that the gift in question was:
'... the product of full, free and independent volition or, which comes to
the same thing, were the result of the free exercise of [the deceased's]
independent will1.
[37] I do not think Mr Moraes took issue with Mr Wilson's submissions on
the legal principles I should apply to this aspect of the case. The difference
between the parties was as to their application to the facts of this case.
THE TERMS OF THE DOCUMENTATION
[38] Whether Mrs Whittaker intended to make a gift of the account to Mrs
Meek depends on whether she had that intention at the time she made the
transfer. The first place to look for that intention is in the documentation by
which the transfer is effected. If those documents themselves disclose the
transferor's intentions then extraneous evidence is not admissible (see
Vandervell v IRC [1967] 2 AC 291 at 312, [1967] 1 All ER 1 at 8, per Lord
Upjohn). Mr Moraes, for Mrs Meek, submitted that the instruments executed by
Mrs Whittaker and Mrs Meek disclose an intention on Mrs Whittaker's part to
constitute Mrs Meek a beneficial co-owner. I will deal with this submission
first.
[39] The primary document executed by Mrs Whittaker and Mrs Meek is
headed 'Joint-account contract with joint and several liability'. It records that
the bank accepts in the names of Mrs Whittaker and Mrs Meek, as depositors
and joint and several creditors, a deposit of funds securities and precious
metals. It states that the account so opened 'is governed by the Bank's general
rules and by the following provisions'. There then follow eight numbered
provisions of which the following are relevant:
' 1. Each of the j oint holders shall have the right to dispose individually
over all the funds securities and precious metals booked to the account; the
signature of one of them shall be sufficient to liberate and fully discharge
the Bank.
2. ... each of the joint holders may separately and on his own withdraw
any part of the sums and valuables ... it being understood that any
authorised signature fully commits all the joint holders jointly, severally
and indivisibly.
4. This contract shall govern solely the joint holder's right of disposal vis
a vis the Bank, without regard to the relationships, in particular, as between
the holders and their legal successors.
7. Any termination of this Contract may be made by one or the other
signatory parties ...'
[40] Mr Moraes relies on conditions 1, 2 and 7, while Mr Wilson, for the
claimants, points to condition 4. In my view conditions 1, 2 and 7 show clearly
that Mrs Meek was a joint tenant of the account, with powers of drawing and
disposal over it, and rights of termination, which are fully equal to the rights of
Mrs Whittaker. But that does not to my mind show that it was intended that she
should exercise those rights as a beneficial owner. This conclusion is reinforced
by condition 4, which makes it plain that the contract is concerned only with
the joint account holders' rights against the bank. It has nothing to say about
their rights vis-a-vis each other. The same is also true of the documentation
signed by Mrs Whittaker and Mrs Meek when the account was transferred to
Jersey. Nowhere in the standard form documentation is there even the
possibility of the parties indicating whether they hold the account as beneficial
joint tenants or as trustees for one of them, or for some third party. The
documentation is therefore in my opinion neutral as to Mrs Whittaker's
intentions, and it is therefore necessary to look for evidence of those intentions
in the extraneous evidence.
MRS MEEK'S EVIDENCE ON THE ISSUE OF THE INTENTION TO MAKE A
GIFT
[41] On this point, the most important element in the evidence is Mrs Meek's
evidence of what Mrs Whittaker said to her about why she was putting the
account into their joint names. In her witness statement Mrs Meek says this:
'[Mrs Whittaker] confirmed that she did not want the funds in [the
Account] to go in her Will, and indeed the Will is evidence that she did not
include the account as part of her Estate, as [the Account] is not mentioned.
[Mrs Whittaker] told me that the funds would pass to me as a joint account
holder upon her death. The Account had passed to [Mrs Whittaker] on the
death of her mother, after she had been added to the account as a joint
account holder. [Mrs Whittaker] knew that adding me as a joint account
holder would have the same effect, namely to pass the account in its
entirety to me, both legally and beneficially, and she confirmed as much to
me.*
The impression one gets from this statement is that Mrs Meek's recollection of
the conversation is very hazy. The only statements which Mrs Meek appears
clearly to recall Mrs Whittaker making are that she did not want the account to
be dealt with under her will and that the account would pass to Mrs Meek on
her death, neither of which denote an intention to use the joint account to make
a gift, as opposed to an administrative convenience. The concluding words are
the most important part of the statement, and they are tantalisingly oblique.
This passage in
her witness statement is almost identical to one contained in a Reply to a
Request for Further Information of the Defence served in August 2006. The
only additional information provided compared with the witness statement was
that the conversation was stated to have occurred in February 2001.
[42] In cross-examination, Mrs Meek said that she thought that Mrs
Whittaker had first mentioned the account at the end of 2000, that she 'touched
on it' before Christmas. She said that conversations (in the plural) took place in
the weeks leading up to the execution of the documentation. She was then
shown a letter from Bathurst Brown Downie & Airy to ABN Amro dated 15
January 2001 which enclosed the signed documentation (showing it must have
been post-dated). She agreed then that the conversation must have taken place
in January.
[43] As to what was actually said, Mrs Meek's evidence was that Mrs
Whittaker said: 'I want the account to come to you on my death'. She also said:
'Its OK as long as you sign. It will come straight to you as it did from Mummy to
me'. Mrs Meek was however unable to recall any other details of the
conversation—not the time of day when it occurred nor where it took place. But
she insisted that Mrs Whittaker was quite plain about what she wanted—it will
come to you on my death just as from Mummy to me. She did not recall that
Mrs Whittaker explained the difference between legal and beneficial ownership.
When taxed with why the phrase 'It will come straight to you as it did from
Mummy to me' did not appear in her witness statement Mrs Meek said that she
had mentioned these words to her lawyers but that it had been decided not to put
them in the statement because she could not be sure she was quoting I them
verbatim. I am bound to say that if that was the truth Mrs Meek's confidence in
her ability to recall these words seems to have increased since her statement was
made, because in her evidence in court she gave every impression of having a
clear recall of the very words used by Mrs Whittaker. That said, in answer to
questions from the court she said | that she could not remember how many
conversations she had had with Mrs Whittaker on this subject, and that she was
only giving the gist of what was said. Mrs Meek did not recall that Mrs
Whittaker gave any explanation as to why she was proposing to make a gift of
the account to Mrs Meek, nor did Mrs Meek ask her. Nor does Mrs Meek offer
any recollection of having thanked Mrs Whittaker for the gift.
[44] Almost as an aside, when being questioned by the court at the very end
of her evidence, Mrs Meek said that on another occasion Mrs Whittaker had
told her that the account would not buy her a yacht, but that it would buy her
some nice holidays.
[45] Mrs Meek also recalled in the evidence in court (although not in her
statement) that Mrs Whittaker had said that she would get Mr Downie to
draw up the appropriate documentation. But she could not recall whether Mrs
Whittaker told her that she had told Mr Downie that Mrs Meek was to take
beneficially. She did recall discussing the account with Mr Downie after Mrs
Whittaker's death and she thought that Mr Downie had advised her that
account came to her by right of survivorship.
[46] Mrs Meek assumed that Mrs Whittaker must have told Mr Downie about
her intentions because she asked him to deal with putting the account in joint
names, although she could not recall Mrs Whittaker telling her what she had
told Mr Downie. In view of the fact that Mr Downie does not mention any
conversation with Mrs Whittaker about her intentions as to the account I
conclude that Mrs Whittaker probably did not tell Mr Downie that she had
made a gift of the account to Mrs Meek. This conclusion is reinforced by the
fact that Mr Hames of ABN Amro was told (I infer by Mr Downie) that the
only reason for putting the account in joint names was to avoid Luxembourg
inheritance complications. Mrs Meek said she told Mr Downie about gist of her
conversation with Mrs Whittaker after Mrs Whittaker died, although Mr
Downie does not say in his statement what he was told about this by Mrs Meek.
We do know, however, that on 11 March 2004 Mr Downie wrote to Mr Hames
on behalf of himself and Mrs Meek saying 'we assume that the assets [in the
account] passed to the surviving account holder by survivorship but if this is
not the case please let us know.'
THE PARTIES' SUBMISSIONS ON THE INTENTION TO MAKE A GIFT
[47] For the claimants, Mr Wilson argued that there was a number of factors
which showed that there was no intention on the part of Mrs Whittaker to give
a beneficial interest in the account. In summary the arguments in favour of this
proposition are as follows:
(a) When Mrs Whittaker was made a joint owner of the account by
her mother this was in a context where she was also appointed the sole
executrix of her mother's estate and the sole beneficiary. So the only
consequence of making Mrs Whittaker a joint owner was to facilitate
a transfer into her name on death. Making Mrs Meek a co-owner is
therefore equally consistent with a desire to facilitate the transfer of
the account to Mrs Meek as executor, as it is with an intention to
make a gift of the account to her on death. Saying that Mrs Meek was
to receive the account in the same way as Mrs Whittaker's mother did
is not necessarily indicative of an intention to make a gift.
(b) There was no evidence to show that Mrs Whittaker had any
particular reason to wish to benefit Mrs Meek so generously. On the
contrary, the giving of a legacy of £8,000 in the will showed that that
was the limit of Mrs Whittaker's desire to benefit Mrs Meek. It made
no sense to give Mrs Meek a modest legacy as well as the account.
(c) The way the evidence of the conversation with Mrs Whittaker about
why she put the account in joint names emerged was very unsatisfactory.
At the time of Mr Farwagi's conversations with Mrs Meek and Mr Downie
it appeared that Mrs Meek was simply relying on the fact of ownership by
reason of survivorship. Neither she nor Mr Downie made any reference to a
conversation in which Mrs Whittaker stated her intentions, as to the
account. In the witness statement the crucial part of the conversation was
referred to only in oblique terms. Matters were not clarified in response to
the request for information. Only in the witness box did Mrs Meek become
more definite about what was said. And she added the reference to Mrs
Whittaker's remark about the account being enough to buy a few nice
holidays only in court. This should have been in the statement and in the
reply to the request for information.
(d) The remark about the account not being enough to buy a yacht, but
enough for a few nice holidays, if it took place, was more aptly applied to
the legacy of £8,000. The account was worth over £300,000 at death and
had been worth more than £400,000 when it was put in joint names, which
would have been enough to buy a yacht, and would have paid for more than
a few nice holidays.
(e) It is open to question whether Mrs Meek really believed that she was
the beneficial owner of the account in the first months after Mrs Whittaker
died. Her disparagement of the size of her legacy to Lady Lowe and to Mr
Farwagi is odd if she really thought she was going to benefit from the
account as well. Even if she did not wish to tell people about the account
she need not have stressed how small her legacy was. Furthermore, on her
own evidence she did not know what the account was worth for at least five
months after Mrs Whittaker's death. She seems to have made no effort to
find out, which shows a curious lack of interest if she really believed she
owned it.
(f) There was no evidence that Mrs Whittaker ever told her solicitor
that she intended to benefit Mrs Whittaker. Indeed, the fact that
Mr Downie does not mention this leads to the inference that he was
not told. Nor did Mrs Whittaker mention her intention to Mrs Ryan
or, apparently to anyone else. Mr Hames of ABN Amro says that the
only reason given to him for the transfer to joint names was to 'avoid
Luxembourg inheritance complications',
[48] In favour of the proposition that Mrs Whittaker intended a gift, and as a
counter to the points made above, the following counter main arguments were
deployed.
(a) Mrs Whittaker knew that the result of her mother putting the account
into their joint names was that Mrs Whittaker ended up as the
beneficial owner. It is reasonable to assume she intended the same result
when she made Mrs Meek a co-owner of the account.
(b) Mrs Meek's account of the conversation was clear and honest. She
made it clear that she was not claiming to remember the detailed words
used, only the substance. But the substance was that Mrs Whittaker
intended the same result for Mrs Meek as her mother had procured for Mrs
Whittaker, ie beneficial ownership.
(c) There is no reason why Mrs Whittaker should not have made a
substantial gift to Mrs Meek. She had twice offered to make gifts to her
during her lifetime. She had no close blood relatives, hence her decision to
benefit her step-daughters and godchildren. Lady Lowe, another friend,
was given 15% of the residue of a gross estate worth some £2m, which is
an order of benefit not dissimilar to that provided for Mrs Meek.
(d) There was no need for the account to be in joint names to enable Mrs
Meek to meet Mrs Whittaker's nursing expenses. These were in fact paid
for out of insurance and UK bank accounts.
(e) There was no attempt to hide the account. There was no reason why
Mr Downie or Mrs Meek should have been particularly forthcoming to Mr
Farwagi on matters which were none of his business.
MY CONCLUSIONS ON THE QUESTION OE INTENTION TO MAKE A GIFT
[49] Before setting out my conclusions on this issue, it is necessary to make
some further findings of fact. So far as concerns Mrs Meek's evidence, I accept
that she is an honest witness. This means I also accept that she now genuinely
believes that it was Mrs Whittaker's intention that Mrs Meek should take the
account beneficially on her death. My job, however, is to determine whether
that belief is justified on the evidence available. So far as concerns Mrs Meek's
recollection of what was actually said to her, my view is that she has very
limited recall of the actual words used. This conclusion is reinforced by the fact
that she cannot remember any details of time or place for the conversation. I
accept that Mrs Whittaker had at least one conversation with Mrs Meek at
which she explained that she wished to put the account into joint names, and
that Mrs Whittaker made some reference to the fact that this is what had
happened as between her mother and herself. If I were convinced that Mrs
Whittaker actually used the words 'I want the account to come to you on my
death' and 'Its OK as long as you sign. It will come straight to you as it did from
Mummy to me' then, divorced of any context, I would have held that on balance
those words amounted to words of gift. But Mrs Meek does not claim to be
relating more than the gist of what was said. And even if those were Mrs
Whittaker's exact words, the meaning is
dependent on the context in which they were said. They would not have been
said 'out of the blue', but Mrs Meek cannot remember anything of the
conversation which preceded them. If that conversation had been about the
arrangements Mrs Whittaker was making to appoint Mrs Meek an executor,
and a holder of an enduring power of attorney, then they might, when uttered in
that context be considered simply to be a further aspect of the administrative
arrangements Mrs Whittaker was making to have her estate administered after
her death.
[50] The same lack of context applies to the remark I have referred to above
which Mrs Meek recalled Mrs Whittaker making about the account being
enough to pay for a few nice holidays. I am concerned that this remark was not
referred to in Mrs Meek's witness statement. It seems to be something which
Mrs Meek did not consider to be important when she made the statement, but
has subsequently come to seem more significant. I share Mr Wilson's doubts
about whether it really was intended to apply to the account at all, as opposed
to Mrs Meek's £8,000 legacy.
[51] Of course, if one could be sure that Mrs Whittaker understood that the
effect of her mother putting the account into joint names would be to pass
beneficial ownership of the account to Mrs Whittaker outside the operation of
her mother's will, then one could be more confident that, by introducing into the
conversation with Mrs Meek the transaction between her mother and herself,
Mrs Whittaker was intending to signal that she was making a similar gift to Mrs
Meek. This is the point Mrs Meek makes in her witness statement, quoted at
[41], above, and Mr Downie makes the same point in his statement. But neither
Mrs Meek nor Mr Downie actually knew anything about the details of the
transaction between Mrs Whittaker and her mother at the time of the supposed
gift. The statement that Mrs Whittaker knew 'that adding me as a joint account
holder would have the same effect [as her mother making her a joint account
holder], namely to pass the account in its entirety to me, both legally and
beneficially' is made, as I understand it, on the basis of the documents relating
to that transaction which were in Mrs Whittaker's papers, and which are only
now available. Having considered those documents, I think, on balance that it is
a reasonable inference that at the time they were executed Mrs Whittaker may
well have appreciated that she became sole beneficial owner of the account
solely by reason of her mother putting the account into joint names, with the
appropriate declaration in the documentation, and that the fact that she also
became her mother's sole executrix and legatee was nothing to do with the
matter. But whether, more than 15 years later this aspect of the transaction was
at the forefront of her mind is, I think, difficult to say. Certainly the fact that
putting the account in joint names avoided the need to make a will in
Luxembourg seems also to have been a consideration back in 1975, and
may have been present in Mrs Whittaker's mind in 2001.
[52] In view of the uncertainty over what was actually said in the crucial
conversation, I have looked for other evidence which might support either
side's case. It seems to me that there are a number of factors all of which tell
against Mrs Whittaker having an intention to make a gift of the joint account.
None of them are conclusive, indeed each can be rationalised in a way
consistent with Mrs Meek's case. But cumulatively I consider their effect to be
significant.
(1)1 find it hard to believe that if Mrs Whittaker intended to give the
account to Mrs Meek after her death she offered no explanation as to why
she was doing so. And I find it equally hard to believe that if such an
explanation had been given, Mrs Meek would not now be able to
remember it.
(2) If Mrs Whittaker intended Mrs Meek to have the account
beneficially, it is odd that she also gave her a legacy in the will. I can see
that there are reasons why she might have done this, but I still find it a
rather strange thing to have done.
(3) Mrs Whittaker did not tell Mr Downie that she had made Mrs
Whittaker a joint account holder with a view to making a gift to her. And
the only explanation given for the transaction to Mr Hames at ABN Amro
made no mention of this either.
(4) Following Mrs Whittaker's death, Mrs Meek showed no interest
whatsoever in the value of the account. It was not valued until about six
months after the death, and then for IHT purposes. And in the meanwhile
she played down the amount of her legacy and gave the impression she has
been ungenerously treated, without troubling to find out if that is in fact a
fair thing to say. Whether Mrs Meek actually told Lady Lowe that her
legacy was 'derisory' is perhaps beside the point. Whatever the language
used I am satisfied that Mrs Meek intended to make it clear that she
thought she had been ungenerously treated, and in my judgment, she really
believed that at the time.
(5) When Mr Farwagi questioned Mr Downie about the account Mr
Downie said nothing about the fact that Mrs Whittaker had told Mrs Meek
that she wanted her to have the account beneficially. He does talk about the
possibility that Mrs Whittaker may have left instructions for Mrs Meek as
to how to deal with the account. While Mr Downie may have thought that
the terms of any arrangement between Mrs Whittaker and Mrs Meek were
none of Mr Farwagi's business, I see no reason why Mr Downie should
have tried to mislead Mr Farwagi by raising speculations which he knew to
be unfounded. Mr Downie gives the impression that he really does not
know what passed between Mrs Whittaker and Mrs Meek on subject of the
account. And in his statement he says nothing on this subject either. Mrs
Meek believes that she did speak to Mr Downie about the joint account,
and no doubt she did, but if she did she seems to have left him in the dark
about such details of the conversation as she now claims to remember.
(6) Mrs Meek herself said nothing to Mr Farwagi about the fact that
she believed that Mrs Whittaker had told her that she wanted
Mrs Meek to have the account. Instead she carefully stuck to the
formula that the account was put in joint names and that now it
belonged to her. Mrs Meek said in evidence that she thought she had
answered Mr Farwagi's inquiries about the account fully, and that it
did not cross her mind to mention what Mrs "Whittaker had said to
her. I find that surprising, if at that time her belief in Mrs Whittaker's
desire to make a gift of the account was as strong as it now is.
(7) If his letters are correctly dated, Mr Downie was advising
Mrs Whittaker about the account as early as May 2000 (see [12] and
[13], above). At that stage it appears that Mrs Whittaker's concern is
that Mrs Meek should be able to operate the account. Nothing is said
which shows that Mr Downie had been told that Mrs Whittaker
wished to give a beneficial interest in the account to Mrs Meek (see the
letter of 15 May 2000). A significant part of the background which
makes a possible decision to give a beneficial interest in the account to
Mrs Meek seem plausible in early 2001 is that Mrs Whittaker was at
that stage making a new will, and was clearly considering her
testamentary dispositions. But if the correspondence is correctly dated
in 2000 it appears that the decision to make Mrs Meek a joint account
holder had been under consideration months previously, at a time
before the return of Mrs Whittaker's cancer had been diagnosed. On
the other hand, if the correspondence is to be dated 2001, the
reference to Mrs Meek being able to operate the account reinforces the
idea that putting her name on the account may have been for practical
reasons, rather than with a view to making a gift of it.
[53] Having regard to the above factors, and taking account of the arguments
deployed on Mrs Meek's behalf, my conclusion on the totality of the evidence is
this. I think that Mrs Whittaker probably intended that putting Mrs Meek's name
on the joint account was a matter of administrative convenience. But I think she
probably did not spell this out in terms, and she may well have used language
which, to Mrs Meek's ears, was ambiguous. I do not think that Mrs Meek
originally really believed that the account was put into joint names with a view
to making her a gift of it, but that after discussing the workings of the principles
of survivorship with Mr Downie she began to believe that perhaps after all a gift
had been intended. This belief may have been encouraged by her
perception that she otherwise had not been generously treated by Mrs
Whittaker in return for all the services she had rendered her, and by the hostile
and unjustified accusations which came to be made against her by the
beneficiaries under the will. Even between the making of her witness statement
and her evidence at trial there was a noticeable firming up of her evidence in
this regard. As I have said, in all of this I acquit Mrs Meek of dishonesty, and I
think it probable that a significant share of the blame for this unfortunate
dispute must lie with Mrs Whittaker for failing to ensure that her wishes were
more clearly stated. It is also unfortunate that Mr Downie, once he discovered
that his client had put the account in joint names, also failed to get to the
bottom of exactly what she intended by it.
[54] I have addressed this issue so far without reference to the presumption
of a resulting trust. In view of the fact that I have decided, on balance, that the
evidence points the same way as the presumption, it has no application.
However, had I not felt able to form the view I have formed about Mrs
Whittaker's likely intentions I would have described the evidence as
inconclusive. And had I reached that conclusion it seems to me that the
presumption would have come into play in the claimants' favour.
[55] In conclusion therefore, in my view Mrs Whittaker did not intend Mrs
Meek to take the account beneficially. Accordingly the account forms part of
the estate.
UNDUE INFLUENCE
[56] In the light of my conclusion that no gift was intended, the question of
undue influence does not arise. I should however deal with it in case my
judgment goes on appeal. I can do so quite shortly.
[57] If, contrary to the conclusion I have reached above, Mrs Whittaker did
intend to transfer a beneficial interest in the account to Mrs Meek, I am quite
satisfied that she would have done so on the basis of her own free will, entirely
free from any influence on the part of Mrs Meek. As I have noted above, all the
evidence shows that Mrs Whittaker was a strong-willed and independent
minded woman who was conspicuously not amenable to persuasion by her
friends even in fairly minor matters. At the time the account was transferred
into joint names she was in full possession of her faculties and had access to
independent professional advice (even though it appears that she did not in fact
obtain advice about the account). So far as concerns her relationship with Mrs
Meek, in my judgment Mrs Whittaker was, if anything, the dominant partner in
that friendship. It will be recalled that Lady Lowe's opinion was that when she
visited Mrs Whittaker and Mrs Meek during their holiday in France it was Mrs
Whittaker who was 'extremely bossy' to Mrs Meek, whom Lady Lowe felt was
being 'pushed around' by Mrs Whittaker.
[58] I am aware that in these matters appearances can sometimes be deceptive, in that
the apparently subservient partner in a relationship may in fact be subtly manipulating
the other party. But I detect nothing of this here. I have seen no evidence that Mrs Meek
was in fact manipulating f H Mrs Whittaker, or that she had any influence over her, I do
not consider that it would be consistent with Mrs Meek's character as I observed it, and
as others testified to, to seek to take advantage of Mrs Whittaker's friendship even were
she in a position to do so.
[59] Of course any gift of the account would be a large and generous
I gift. But if made, it was made in the context of Mrs Whittaker knowing
[that she was suffering from the recurrence of a potentially terminal disease
! and at a time when she was making preparations generally for disposing of
her property on death. Mrs Meek understood that she was not to draw on
the account while Mrs Whittaker was alive—on any view of the matter it
was intended to be a form of testamentary gift. Mrs Whittaker had no
blood relations to whom she wished to leave anything—her will divides
the bulk of her estate between an old friend (Lady Lowe) her two godsons
and her two step-daughters. Had she decided to give the account to
Mrs Meek I would not have found that particularly surprising. As it
turned out the account was worth somewhat more than the share of the
estate given to Lady Lowe, but it was not of a different order of
magnitude.
[60] In the light of these findings the question whether there was a
relationship of trust and confidence, and the question whether the gift called for
an explanation do not really arise. For what it is worth I think there was a
relationship of trust and confidence, although not one which gave rise to any
real position of influence on the part of Mrs Meek. The gift too, I think, would
be large enough to call for an explanation. But those conclusions
notwithstanding, I am firmly of the view that any gift of the account would
have been entirely understandable and explicable, and that the decision to make
such a gift, had it been taken, would have been the product of Mrs Whittaker's
'free and independent volition'.
THE COUNTERCLAIM AND PART 20 CLAIM
[61] Finally, I turn to the counterclaim. As at trial this comprised a claim for
£54.96 for telephone calls made by Mrs Meek on behalf of the estate between
December 2003 and March 2005, the sum of £94.80 for the cost of travelling to
Cardiff in estate business and the sum of £201.77 which represents the amount
by which Mrs Meek claims the other expenses she incurred on behalf of the
estate (£3,501.17) exceeded the amount she actually drew from one of the
estate's bank accounts to cover them (£3,300). These claims total £350.93. In
response to the counterclaim the claimants put Mrs Meek to proof in respect of
the whole of the £3,300
expenses in respect of which she has already reimbursed herself. I am glad to
say that very little time at trial was spent arguing about these relatively trivial
amounts. My understanding of the position at the end of the trial was that the
claimants accepted all of Mrs Meek's expenses claims except a sum of £200
which she had to pay to get her car released from the Lambeth car pound. Mrs
Meek explained that on the day of Mrs Whittaker's death she visited the house
in Cleaver Square and in her distracted state she accidentally parked her car
illegally, with the result that it was towed away. While my sympathies are with
Mrs Meek on this issue, I think that Mr Wilson must be correct in saying that
this is not a proper expense for an executor to incur at the expense of the estate
(I do however trust that the claimants will feel able, on behalf of the
beneficiaries, to be magnanimous about this). This means that Mrs Meek is
strictly entitled to £153.93 on the counterclaim, plus interest. I trust counsel
will be able to agree an appropriate sum by way of interest—it is not clear to
me for what period it should run.
Order accordingly.