Boswell & Ors v Lawson & Ors

This appeal is about the will of the late Mr John Thomas Lynch Appleby. He and his wife Alice Doreen Appleby had four children: the three claimants are their daughters, and Philip John Appleby is their son. Carol Ann Appleby is (or was) married to Philip John Appleby. Mr Lawson and Mr Hudson are Mr John Appleby’s executors; they took no part in the appeal. Mrs Appleby died on 28 December 2004 and her husband on 21 March 2007. I will refer to the deceased as Mr and Mrs Appleby respectively.

On 13 November 1990 Mr Appleby executed a Deed of Gift by which a property, The Stephenson’s Arms, Wylam, (“the Property”) which was their home and stood in his sole name, became vested in the joint names of himself and his wife, on trust for themselves as beneficial tenants in common in equal shares.

On the same date both he and his wife executed wills, in matching terms. The relevant provisions of each will are as follows:

By clause 5 the testator’s half share in the Property was given to their son Philip Appleby, with a direction that the Property was not to be sold, while the surviving spouse was alive, without his or her consent, and with a substitutional gift in case Philip Appleby did not survive the testator.

By clause 6 the residuary estate was to be held for the surviving spouse absolutely.

Clause 7 said that if the spouse predeceased the testator, “then and only then clauses 8 and 9 hereof shall have effect”.

Clause 8 gave the residuary estate of the testator to such of the children as survived the testator, if more than one in equal shares, with substitutional provisions.

Clause 9 conferred administrative powers in relation to the residuary estate. Nothing turns on it for present purposes.

It appears that Mr Appleby was prompted to take these steps by the thought that it might make it possible to reduce the exposure of the Property and their respective estates to inheritance tax on their deaths.

In the events that happened, the terms of the wills are such that Mr Philip Appleby is entitled to the whole of the Property, by virtue of clause 5 of the will of each of his parents, and the residuary estate of Mr Appleby is divisible between the four children in equal shares.

The three daughters contend that this is not what their parents intended, and that Mr Appleby’s will should be rectified, under section 20 of the Administration of Justice Act 1982, so as to have the effect that they say he intended, namely that on his death as the survivor, the whole of Mr Appleby’s estate, including his half share of the Property, should be divided equally between the four children. Although it is apparently contrary to his interest, Mr Philip Appleby supports this argument. It is opposed by his estranged wife, Mrs Carol Appleby, whose interest it is that his assets should be the greater, from which she can claim financial provision on their divorce.

The 1982 Act allows the court to order the rectification of a will if, so far as relevant:

The proceedings were brought outside the statutory time limit, but the court has power to extend time. Appropriately (on the facts of this case) the issue as to whether to extend time was taken together with the issue of substance. The case was heard by Mr Recorder Holmes in the Newcastle-upon-Tyne County Court. He considered that the claim was not well made out and refused to extend time. With permission granted by Lord Justice Ward, the claimants appeal, supported by Mr Philip Appleby, who served a Respondent’s Notice.

As below, the claimants were represented on the appeal by Mr Goldberg, Mr Philip Appleby by Miss Smart and Mrs Carol Appleby by Mr Richardson. The executors were not represented on the appeal. All three Counsel assisted the court with clear skeleton arguments and succinct oral submissions.

The appellants’ case is that Mr Appleby’s will does not represent his testamentary wishes as they were at the time. That case is supported by evidence from immediately after the date of the two wills. On 19 November 1990 Mr Philip Morris, the solicitor who had drawn the wills, wrote to Mr and Mrs Appleby, sending them copies of the two wills and also his firm’s bill of costs. Mr Appleby replied on 28 November enclosing a cheque. The two letters undoubtedly provide material which supports the contention that the wills do not accord with the intentions of the testators.

The letter dated 19 November is as follows:

Mr Appleby’s reply on 28 November was, so far as relevant:

Thus, the letter dated 19 November explains the effect of the wills in a way which does not correspond with their actual effect, because it says that, on the death of the survivor, the remaining half share of the Property is divided, together with the residuary estate, between all the children, instead of going to Mr Philip Appleby alone. The appellants contend that Mr Morris’ explanation of the will shows what he had been instructed to achieve, aimed to achieve, and thought he had achieved, when drafting the wills, and that Mr Appleby’s statement that he and his wife were satisfied with the arrangements as described shows that the description in the letter accorded with his understanding and intention as well.

Perhaps not surprisingly after the lapse of time, no note of the instructions taken by Mr Morris for the wills or the Deed of Gift survives in the records of Lawson & Thompson, nor did Mr Morris have any actual recollection of the relevant events. He gave evidence at the trial. He had known both Mr Philip Appleby and his wife Mrs Carol Appleby. The introduction to Mr John Appleby and his wife was effected by Mr Philip Appleby, for the purpose of these transactions.

Mr Morris described his normal practice in his oral evidence. Assuming that he followed that practice as described, he took instructions for wills from his clients without any of the beneficiaries in attendance. He took notes of the instructions given. From those notes he drafted the wills (and the deed of gift). He made an appointment for the clients to attend in order to execute the documents at the end of the working day. On that occasion he explained the documents to his clients in laymen’s terms, rather than reading them through verbatim. After the execution of the documents, he dictated a letter with which copies of the wills would be sent to the clients, which would serve both as an attendance note and as an explanation to the clients. When dictating the letter he had in front of him both the will and the file including his notes of instructions. The letter would have been dictated more or less immediately after the appointment for the execution of the documents. Any delay before it was typed, signed and sent was the result of the weight of business and the fact that he operated a branch office and his primary tasks were litigation-based. In cross-examination he said this:

If Mr Morris’ notes of his instructions were accurately reflected in the terms of his letter, then it seems that the wills as executed did not conform with the instructions. Certainly something went wrong at this stage. Either the wills were correct, but the explanation was not, or the explanation was in accordance with the instructions and the wills were not. In resolving that issue, which is at the heart of the case, it is of course relevant that we have not only Mr Morris’ letter but also Mr Appleby’s reply to it.

The judge did not accept that the error was made in the drafting of the wills. There was other evidence which suggested that Mr Appleby’s testamentary intention had been, and still was, to give the Property to his son Mr Philip Appleby. I will refer to this next.

Mr Appleby was by profession an engineer. He spent quite a large part of his working life abroad. He was meticulous and careful. For example, the reason that we have not only the solicitors’ letter to him of 19 November 1990 but also his reply of 28 November is that he kept letters received, and he made copies of outward letters in a correspondence book; the copy is on page 43 of the book.

The Property had been in his mother’s family for some considerable time - at least for several generations. It had been a public house, with residential accommodation above the public areas. Its trade as a public house ceased in about 1956.

Although no trace was found of any previous will, it seemed probable that Mr Appleby had made a will before 1990. Mrs Carol Appleby said in terms that he had told her that he had done so.

Mrs Dodd, half-sister to Mr Appleby, said that in the 1970’s Mrs Appleby told her of her concern at the fact that Mr Appleby was intent on leaving his whole estate to their son to the exclusion of the daughters. Mrs Dodd said that she said to Mr Appleby that she thought this would cause ill feeling among the children. She got the impression that he was intending to leave at least the Property to his son. She tried to dissuade him from doing so. In her witness statement she said that he agreed not to do so, but in cross-examination she accepted that she was not sure that she had succeeded. It must follow from this that he had not agreed that he would not leave it to Philip Appleby alone. The question was not raised with or by her again.

Mr Philip Appleby married his wife Carol in 1977. In about 1981 they sold the house that they had bought on marrying and moved to the Property, first of all paying Mr Appleby a rent and later paying the outgoings on the Property. The residential accommodation had been rented out before this, but Mr Appleby was annoyed by the way it had been treated by one tenant. He preferred it to be occupied within the family. Mr Philip Appleby said in evidence that his father assured him that he would be secure in the Property, but that he had said nothing more specific than that, and in particular had said nothing about what would happen on his death.

Mrs Carol Appleby said in evidence that Mr Appleby went to Ryton in about 1981 to make a will, and that he told her the terms of the will, at least to the extent that the Property was to go to her husband. Mr Philip Appleby denied knowing anything about this, or ever having had either any specific assurance from his father about the Property or any discussion with his father about the terms of his father’s will at all. He cast doubt on whether his father, whom he described as very private, would have told Mrs Carol Appleby about his will. The judge accepted that Mr Appleby had given his daughter-in-law assurances in 1981 that the Property would go to his son Philip under his will.

In or about 1986 Mr Appleby and his wife returned from abroad to live at the Property, having spent a few weeks there during 1984. Extensive building works were carried out to create two separate apartments within the building, one for themselves and the other for their son and daughter-in-law and their children. The judge accepted that part of those works was paid for, in effect, out of the net proceeds of the former matrimonial home of Mr Philip and Mrs Carol Appleby.

There was no evidence of any event in the family, or otherwise, which might have altered Mr Appleby’s intentions as regards the property, or his estate generally, in or before 1990, so as to lead him to want to make a will in different terms from those which he had used before. The only motive for the new arrangements in 1990 seems to have been his having read an article in the Daily Telegraph about inheritance tax. So, the judge considered, Mr Appleby could not be shown to have had an intention to change the dispositions effected by the previous will other than in consequence of the Deed of Gift and the division of the beneficial ownership of the Property which that Deed effected.

Moving on to the period after 1990, when Mrs Appleby died in 2004, all four children, as well as Mrs Carol Appleby, were present with Mr Appleby at the time of the funeral. It is not in dispute that he read over, or at least told them of, at least part of the terms of his wife’s will, including that her half share of the Property went to Philip Appleby and the residue to himself as the surviving spouse. There is a dispute as to whether he also said that his own will was in similar terms. The judge said this:

The separation between Mr Philip and Mrs Carol Appleby did not occur until 19 July 2005. She had no further contact with her father-in-law after that date. In her Form E document served in early March 2007 in the course of the divorce proceedings, shortly before the death of Mr Appleby, she said this about the Property:

Not all the dates or details in that passage are quite correct, and the reference to seeing the wills may, in context, be to Mr Appleby’s earlier will in 1981 rather than the 1990 wills, but even so this provides confirmation of her evidence as to the earlier testamentary intention of Mr Appleby.

We do not have an equivalent document from Mr Philip Appleby made before his father’s death. A position statement put in on his behalf in the divorce afterwards did say, however:

This was put to Mr Philip Appleby in cross-examination. He said there was something wrong with the statement that he should have picked up. The judge referred to this in paragraph 51 of his judgment. What he said about its timing is over-simplified, but he evidently accepted the submission that Mr Philip Appleby did expect, before his father’s death, that he would receive the whole of his father’s share of the property, rather than sharing it with his three sisters, and he rejected Mr Philip Appleby’s evidence that he did not know about his father’s intentions either from the time of his mother’s death, or for that matter beforehand, from 1981. He could also draw support from this for Mrs Carol Appleby’s evidence as to the previous testamentary intentions of Mr Appleby.

The judge was satisfied that Mrs Boswell and Mr Philip Appleby (together with the other children and Mrs Carol Appleby) were told of the terms of Mrs Appleby’s will on her death, and were also told that Mr Appleby’s will was in the same terms. He was satisfied that Mr Appleby made no reference to the letter of 19 November 1990 when he gave this explanation of the wills to his children, and that the explanation he gave was inconsistent with the terms of the letter. He was also satisfied that Mr Appleby had made an earlier will in 1981 under which the whole Property (then owned by Mr Appleby alone) would have gone to his son. In turn, he was satisfied that neither Mr nor Mrs Appleby intended to make any change in the arrangements in 1990 other than the division of the ownership of the Property during their lifetimes, for the sake of reducing the impact of inheritance tax. The end result was to be the same, after the death of the survivor, as it would have been previously on the death of Mr Appleby.

Therefore, the judge considered, Mr Morris’ error was in his letter, not in his drafting of the wills. The appellants criticise his paragraph 43, which is as follows:

They contend that the judge failed to deal adequately with the probabilities and the proper inferences arising from the exchange of letters in November 1990, that he was not justified in making a finding as to Mr Appleby’s testamentary dispositions and intentions before 1990, and that he wrongly gave weight to issues as between Mr Philip Appleby and his wife in the divorce proceedings, and criticisms of the conduct of Mr Philip Appleby, which were irrelevant to the issues before him in the rectification claim.

I do not accept the criticism of the judge as regards his having found that Mr Appleby made at least one previous will (in 1981) under which the Property was to go to Mr Philip Appleby outright. This finding was not only based on uncorroborated evidence of Mrs Carol Appleby. Her oral evidence was supported by the terms of her Form E document made in March 2007. This is, of course, a statement of her own, but as a previous consistent statement, made before the death of Mr Appleby, it shows what she believed at the time. There has to be some reason for her having forecast accurately the provision made by Mr Appleby’s will. It was supported by Mr Philip Appleby’s position statement in the divorce, referred to above. It was also consistent with Mrs Dodd’s evidence as to Mr Appleby’s intentions. Moreover it was for the judge to decide which of Mrs Carol Appleby and her husband he regarded as the more credible. For that purpose it was certainly legitimate for him to take a view as to the course of, and the positions taken in, the ancillary relief proceedings in the divorce.

Equally, the appellants cannot successfully challenge the judge’s findings as to what was said by Mr Appleby after his wife’s death, by way of reading over or explaining the terms of her will, and his statement that his own will was to the same effect. In that respect, the judge’s findings are consistent as to what Mr Appleby had done, and intended, before 1990, as regards the destination of the Property after his death, and what he said in 2004 on the same subject. They are also consistent with the terms of the 1990 wills. One factor that is plainly not consistent with this is Mr Morris’ letter of 19 November 1990. It is said that Mr Appleby’s reply is also not consistent with it, in that it shows that Mr and Mrs Appleby accepted and approved of what Mr Morris stated in his letter. Accordingly the letter and the reply require examination.

Some reliance was placed on the fact that, after the death of Mr Appleby, Mr Lawson explained the terms of the will in the same way as was set out in the letter dated 19 November 1990. However, it seems from his evidence that before he first gave that explanation he already had a copy of the letter, and that he relied on the letter rather than on examining the will directly. So this does not show that, independently, he made the same mistake as Mr Morris made in 1990.

In his witness statement and in his oral evidence, Mr Morris said that he was certain that the error was in the drafting of the wills rather than in the letter. However, since he did not profess to have any actual recollection of the events, it seems to me that this evidence is the product of rationalisation with hindsight. On this basis the judge was in at least as good a position – and in fact rather better because of his knowledge of matters before and after 1990 – than Mr Morris to decide the probabilities. I would therefore place no reliance on this aspect of the evidence of Mr Morris and I consider that the judge was right not to do so either.

As it seems to me the critical question arises from Mr Morris having explained to Mr and Mrs Appleby in his letter what he thought the effect of the wills was, and Mr Appleby having acknowledged the letter (and referred to it as describing the deed of gift and the will) and said that he and his wife were satisfied with the arrangements. Mr Goldberg submitted, for the appellants, that it is a reasonable inference from the terms of his letter that he had read Mr Morris’ letter, having noted (correctly) that it did describe the effect of the deed and the wills, and that it is also a reasonable inference, from what is known of Mr Appleby’s carefulness, that he had read it with care and understood what it said. If so, submitted Mr Goldberg, if it did not accord with the instructions that he had given to Mr Morris, how could he have failed to point this out, or at least raised a query with Mr Morris, rather than simply pay the bill for a task properly done?

As Lord Justice Wilson pointed out during argument, the letter could have been correct with only the addition of a few words. If the second paragraph of the letter had read as follows (the inserted words being underlined) it would have been accurate:

However, that would only resolve part of the puzzle. It could explain why, or at least make it less surprising that, Mr Morris sent his letter in those terms, despite (on this hypothesis) having had, and correctly put into effect, instructions as to the wills as they stand. It would not explain why Mr Appleby, on reading the letter, did not notice that it described the effect of the will in a different way, not consistent with the instructions he and his wife had given, and did not query this with Mr Morris.

Mr Goldberg submitted that Mr Appleby, careful as he was, must have read Mr Morris’ letter and cannot have read the will. If he had read both documents he would have seen the inconsistency between the two and must have mentioned it. If he only read the letter, then if his instructions for the will had been that the survivor’s half share should go to Mr Philip Appleby, again he must have queried the explanation in the letter. Only if he read the letter (but not the will) and the letter’s explanation accorded with the instructions that he had given could he have replied in the terms in which he did, without asking for clarification. His argument in this respect built on the points set out in the Respondent’s Notice on behalf of Mr Philip Appleby.

That argument is well made, but it does depend on how carefully and to what level of detail Mr Appleby read the letter. The judge described Mr Appleby at his paragraph 24 as “a meticulous man with an orderly approach to such matters”, namely ordering, maintaining and recording his correspondence. Mr Philip Appleby accepted the proposition in cross-examination that his father was “careful and thorough”, and Mrs Carol Appleby likewise accepted in cross-examination the description of him as “meticulous”. Does it follow that on receipt of the letter dated 19 November, some ten days after the wills had been made, he read through in detail the explanation of the effect of the wills in the letter – something which he presumably thought he knew already? Clearly he did read the letter sufficiently to see that it did contain a description of the effect of the deed and of the wills, and he also saw and noted the bill which was enclosed. Whether he studied the second paragraph of the letter is a matter of inference.

The only criticism that seems to me to be justified as regards the judge’s judgment, in all other respects careful and thorough, is that he did not address in terms the significance of Mr Appleby’s letter in reply to that of Mr Morris. Without Mr Appleby’s reply, Mr Morris’ letter would be of much less weight. The significance of the reply is, however, a matter of inference and this court is therefore in as good a position as the judge to form a view as to the proper conclusion to be drawn, especially with the benefit of the judge’s findings on other points as to which, as I have said, it does not seem to me that there is any scope for challenge.

In deciding what inference to draw in this respect, it is necessary to look at the facts as a whole. Thus, the Property had been in the family for a long time. Mr Appleby had shown an intention to leave the Property to his son in the 1970’s. Despite suggestions to the contrary by his wife and his sister, he would not then agree not to do so. In 1981 he made a will under which the Property was left to his son. In 1990, with no other reason for changing his mind as to what should happen to the Property in the end, he decided to put the Property into joint names with his wife, in the hope of saving some inheritance tax. At the same time they made matching wills, under which the Property would go to their son alone. In 2004, after his wife’s death, he read out, or at least explained, her will to his children, including the specific gift of the half share in the Property to their son, and stated that his own will was in corresponding terms.

None of those facts is consistent with the idea that in 1990 the intention of Mr and Mrs Appleby was that their son should receive anything other than the whole of the Property. If the explanation in Mr Morris’ letter were correct, they would have intended that he should get a half share, at a time when he could make no practical use of it, and then a further eighth share when it became realisable, on the second death. For my part I do not see what would have been the sense of that.

Miss Smart submitted that the new element in 1990 was that Mrs Appleby became the owner of a half share, so that her wishes would be more directly relevant than they had been previously. She had been unhappy, in the 1970’s, about the idea that the Property should go only to their son. Therefore, argued Miss Smart, she may have taken the opportunity to make her views effective by qualifying the extent of the gift to the son. That is an interesting theory, but it seems to be no more than speculation. Of course, if she had survived her husband she could have altered her own will; equally, since she was the first to die, if the gift had been in the terms explained by Mr Morris in his letter, Mr Appleby could have changed his will so as to make an outright gift of his half share to their son instead.

Against the context of the facts summarised at paragraph [44] above, the two points which are not consistent with the wills as drafted having been as intended by Mr and Mrs Appleby are (a) Mr Morris’ letter and (b) Mr Appleby’s reply. It seems to me that Mr Morris’ letter can be explained as being the product of a slip in the dictation or the typing, as described at paragraph [39] above. The same cannot be said of Mr Appleby’s reply. However, the significance of his statement that he and his wife were satisfied with the arrangements depends on whether he had taken on board the explanation in the second paragraph of the effect of the two wills, as being different from that which (on this hypothesis) had been intended. If he did read it and see that a different explanation was given of the effect of the will from that which (hypothetically) he had intended and understood, I agree that it is most unlikely that he would have said what he did. He would have asked for clarification or made an appointment to see Mr Morris in order to ensure that the wills were properly in accordance with their intentions. So the question is: why did he not do so?

Mr Goldberg and Miss Smart said that it was because the explanation was as Mr and Mrs Appleby had intended, and it was the wills that were out of line. Mr Richardson submitted that it should not be assumed that Mr Appleby did in fact read the letter so closely as to see that the explanation was different from that which had been intended. He saw that there was a description of the effect of the deed and the wills, and that copies of the wills were enclosed, together with the firm’s bill. He no doubt filed the copy wills away in accordance with his careful system of record keeping. He paid the bill. Can it be assumed that he read the letter in order to check that the explanation was in accordance with the instructions which had been given and, so far as he knew, implemented? Only ten days beforehand he and his wife had been to Mr Morris’ office to execute the deed and the wills, and Mr Morris had (if his normal practice as described in evidence was followed) explained the deed and the wills to them in laymen’s terms before they were executed. They must have been satisfied with the explanation given at that time. At all events, Mr and Mrs Appleby may well have thought that they knew what the wills said, having made them so recently with an explanation at the time. Therefore they may not have read closely the supplementary explanation given in the letter.

On balance, though the point is a little puzzling, it seems to me that by some way the most probable reconciliation of the facts is that the wills did correctly reflect the instructions given by Mr and Mrs Appleby. That is consistent with all of the rest of the history summarised at paragraph [44] above. On that basis, Mr Morris would have provided an accurate explanation at the time when the wills were executed. His letter is mistaken, probably because of a slip in the dictation or the typing. Mr Appleby, receiving the letter, did not read it with such close attention as to spot the error, probably because he thought (rightly, on this basis) that he already knew what the wills said and that they were in accordance with the instructions given. He said, correctly, that he and his wife were satisfied with the arrangements made, and paid the bill accordingly.

On that basis, the only error is in the explanation given by Mr Morris in his letter dated 19 November 1990, not in the wills.

For those reasons, I conclude that the judge was right to decide that Mr Appleby’s will did not fail to give proper effect to his testamentary intentions, and therefore to refuse to rectify it as sought, and to refuse permission to make the application out of time. If he had addressed in terms the implications of the letter dated 28 November 1990 from Mr Appleby, it seems to me that he would and should still have come to the same conclusion as he did. I would therefore dismiss the appeal.

I agree.

I also agree. On any view the careful and meticulous Mr John Appleby cannot have carefully read and compared both the copy will and Mr Morris’ letter. The key provision of the will is in clear and plain English quite unclouded by legalese. He could not have mistaken its meaning if he had read it.

Thus it is entirely possible that it was the copy will which Mr Appleby read with care, and that he failed to notice the discrepancy in the letter. He would have known that what really mattered was the will and so it would have made entire sense for this careful man to focus on that. He may well have seen the main purpose of the letter really as enclosing the bill and not bothered with its detail, given that he had the actual terms of the will. That seems to me the most likely explanation for the disparity between letter and will, given all the other surrounding circumstances. These, both pre- and post- will, for all the reasons given by Lloyd LJ, point strongly to Mr Appleby’s intention being as in the will.