BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Franks v Sinclair & Ors [2006] EWHC 3365 (Ch) (21 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/3365.html Cite as: [2006] EWHC 3365 (Ch) |
[New search] [Printable RTF version] [Help]
CHANCERY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Morley Lionel Bowman Franks |
Claimant |
|
- and - |
||
Jonathan Sinclair David Sinclair Ann Sinclair |
Defendants |
____________________
Leon Sartin (instructed by Mishcon de Reya) for the 1st and 2nd Defendants
Ann Sinclair (acting in person) 3rd Defendant
Hearing dates: 27, 28, 29 and 30 November and 1 and 4 December 2006
____________________
Crown Copyright ©
The Honourable Mr Justice David Richards:
"Before the decline in her health she was a formidable and at times highly abrasive character; her relationship with most other members of the family could be characterised as "stormy" from time to time."
She has been described as feisty and I have no doubt that, balancing the characteristics described above, she was lively and interesting with a strong sense of loyalty and love for her family. With her brother and sisters she was a talented musician, who trained at the Guildhall School of Music.
"20. From the late 1980's, I became closer to my grandmother and started seeing her regularly. We got on well and we were very close. I was aware that as she was living on her own, things needed to be done and was very happy in dealing with the practical necessities of living. We enjoyed each other's company.
22. I enjoyed a close and warm relationship with my grandmother. In the early 1990s I lived and worked near my grandmother who was then living at Hendon Lane. I saw or spoke to my grandmother on an almost daily basis. I helped her with shopping, gardening, home repairs, collecting her pension, taking her to medical appointments and other practical matters."
Mrs Sinclair and others gave evidence of the warm relationship between Mrs Franks and Jonathan. In Mr Franks' evidence, while not accepting from his own direct knowledge that this was their relationship, he readily accepted that he had no reason to doubt it.
"In the years that I knew her Mrs Franks often talked about her grandson Jonathan with great affection as well as her feelings towards her son Morley. Mrs Franks told me that the poor relationship with her son arose out of an incident when he sold a property in a street called Crooked Usage (which is very close to where we live) which had been registered in his name for tax purposes. Mrs Franks told me that when she found out about the sale, she had asked him for the proceeds. Her son had refused to give them to her and Mrs Franks felt that he had stolen money from her. Essentially she did not trust her son. I cannot remember precisely when she told me about this, but she certainly mentioned it on more than one occasion."
There was no challenge to the accuracy of this as a summary of what Mrs Franks told Mr Winston. Mrs Winston gives a similar account in her statement, on which she was not cross-examined. She states:
"7. In all my discussions with Mrs Franks she left me in no doubt about her son Morley. She would often talk to me about how he had "robbed" her. She felt very strongly about it.
8. I can recall Mrs Franks met with my husband to have her will drawn up. I was not privy to those meetings, but Mrs Franks told me on numerous occasions that Morley had already received everything he was going to get from her.
10. ...In all my conversations with her during the period that we were neighbours (1987 until June 1995), she never said to me that she had changed her view of him. She never stopped complaining about him and was adamant that he would not receive anything more from her.
11. She was very fond of Jonathan and was very much aware of all he did for her. She often talked about him with great affection. She told me on more than one occasion that Jonathan would be the beneficiary of her estate."
"Mrs Franks asked me to prepare an EPA appointing her grandson, Jonathan, to be her attorney. I recall that I had several long conversations with Mrs Franks regarding this and in particular regarding the reasons why she did not want to appoint her son, essentially because she did not believe he had her best interests at heart and so did not trust him."
"I am interested in the land referred to in the foregoing caution as a beneficiary pursuant to a Will of the registered proprietor JENNIE FRANKS The registered proprietor is still alive but has granted a Power of Attorney under Section 10 Powers of Attorney Act 1971 to a third party and I am fearful that that third party will sell the property pursuant to the Power of Attorney notwithstanding that the Power of Attorney is now at an end as the registered proprietor is medically incapable of making her own decisions and therefore the Power has lapsed"
I shall return to the terms of this declaration. Mr Franks confirmed in evidence that the reference to "a third party" was a reference to Jonathan.
"I give devise and bequeath all the remainder of my property whatsoever and wheresoever both real and personal not hereby or otherwise disposed of by me unto my Trustees upon trust to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss and after payment thereout of my debts funeral and testamentary expenses to stand possessed of the same (hereinafter called "my residuary estate") UPON TRUST for such of them my child or children as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if any such child or children of mine shall predecease me leaving issue living at my death and who attain the age of eighteen years such issue shall take and if more than one equally the share of my residuary estate which such child or children of mine would have taken had he she or they survived me "
I think it very unlikely that Mrs Franks understood the effect of clause 8 just as a result of it being read out loud to her. It is expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook. There is the long preamble of the administration trusts before one reaches the principal gift, which itself refers only to "children" without any names, and is then followed by the dense language of the per stirpes substitution gift. It requires explanation. In my judgment, the reading of the will cannot be relied on as establishing Mrs Franks' knowledge and approval of its terms.
"Where a client intends to make a gift inter vivos or by will to his or her solicitor, or to the solicitor's partner, or a member of staff or to the families of any of them and the gift is of a significant amount, either in itself or having regard to the size of the client's estate and the reasonable expectations of prospective beneficiaries, the solicitor must advise the client to be independently advised as to that gift and if the client declines, must refuse to act."
The application of this general principle was subject to a number of qualifications in the commentary, paragraph 5 of which provided:
"Where the donor or testator is a relative of the solicitor and wishes to make a gift or leave a legacy to the solicitor, the solicitor must consider whether in these circumstances independent advice is essential. The same principle will apply if the intended recipient is a partner of the solicitor, or a member of staff and the donor or testator is a relative of the intended recipient."
"All I can add further is that, as regards the wording of Clause 8 of the new Will (dealing with the residuary estate), the wording I used followed my firm's standard precedent (that I had used on hundreds of occasions). Our standard precedent in such circumstances always stated that everything was left to the children of the testator in equal shares with the usual per stirpes provision. The only time that I named children was when another child was being left out for some particular reason."
"notwithstanding that the Power of Attorney is now at an end as the registered proprietor is medically incapable of making her own decisions and therefore the Power has lapsed."
This statement inevitably prompted the question as to why Mr Franks had not taken steps in October 1995 to register the enduring power of attorney dated 26 May 1994 which he held.
"The person I was referring to was Jonathan who held a Section 10 Power of Attorney and not to my knowledge an Enduring Power of Attorney. Accordingly, the Section 10 Power would lapse if my mother was mentally incapable of making her own decisions and the view that I held at that time was that during the latter half of 1995 she became incapable."