Tracy Daly & Anor v Gareth Webber

The Claimants’ claim is for a declaration that their late father’s estate has a 50% beneficial interest in 16 Westbourne Terrrace, Buckley, Flintshire, CH7 2LD (“the Property”) and/or that the Defendant is required to account to their father’s estate for their father’s share in the Property, together with further relief including equitable compensation for the Defendant’s use of their father’s share in the Property, interest and costs.

The Claimants are the daughters of Victor John Webber deceased (“Victor”) . No disrespect is intended by use of his first name. They are the administratrices and sole beneficiaries of Victor, who died intestate on 20^th June 2022.

Letters of Administration in Victor’s estate were granted to the Claimants on 7^th September 2024). For probate purposes, the net value of Victor’s estate was declared as £106,372, which included a 50% interest in the Property.

The Defendant is the sole executor of Vivien Mary O’Hanlon deceased (“Vivien”). Probate to Vivien’s estate was granted to the Defendant on 6^th January 2022.

Victor, Vivien and the Defendant were siblings and, accordingly, the Claimants are the Defendant’s nieces.

Vivien died on 21^st August 2021. She was a widow at the date of her death, but was survived by her brothers, Victor and the Defendant (another brother, Vincent, had predeceased her) and by two stepchildren.

Under the terms of Vivien’s last will dated 29^th May 2019 (“the Will”) after appointing the Defendant as her executor and directing the payment of her debts, funeral and testamentary expenses, Vivien left her residuary estate to be held on trust as to 25% to her sister-in-law, Doreen Webber, as to 25% to Victor, as to 25% to the Defendant and as to 25% to her step-daughter, Nicola Jane O’Hanlon (now Watson) (“Nicola”).

Doreen Webber died before Vivien and, as a result, the gift to her under the Will of a 25% share in Vivien’s estate lapsed. In the event, the Defendant, Victor and Nicola appear to have agreed that Vivien’s residuary estate should be distributed in equal one-third shares between them.

For probate purposes, Vivien’s net estate was declared at £239,221. This consisted of the Property, which was estimated for probate purposes at a value of £130,000, £107,221 in cash savings and £5,000 in insurance policies, less £3,000 funeral expenses.

The Defendant instructed Macaskills Solicitors of Buckley to obtain probate on his behalf and to act for him in the administration of Vivien’s estate. In February 2022 Macaskills concluded the administration of Vivien’s estate on behalf of the Defendant. This included getting in the sum of £103,714.42 from Vivien’s HSBC accounts. The balance of those accounts had been just over £3,000 higher at the date of Vivien’s death, but the funeral expenses were paid directly from the HSBC current account. After repaying an overpayment of a war pension of £317.53 and Macaskills’ fees of £3,426.00, the remaining cash balance of £99,934.89 from Vivien’s estate was paid by Macaskills to the Defendant on 22^nd February 2022. Mr Jones of Macaskills wrote to the Defendant on the same day, confirming that the funds had been transferred to his nominated account, advising him of his obligation to distribute the funds in accordance with the Will and concluding the instructions by enclosing a receipted invoice for the fees and indicating that the file would be closed and archived. In addition to these funds collected in by Macaskills, the Defendant had received £5,212 directly on 20^th September 2021 from LV insurance in respect of Vivien’s insurance policy as part of Vivien’s estate .

Between 24^th and 28^th February 2022, the Defendant made payments totalling £33,300 out of Vivien’s residuary estate to Nicola representing her third share in Vivien’s estate, excluding the Property. As early as 2^nd September 2021, the Defendant had indicated to Macaskills that he and Victor might ‘buy out’ Nicola’s share in the Property. On 27^th April 2022, the Defendant paid a further £46,000 to Nicola out of Vivien’s residuary estate in satisfaction of Nicola’s interest in the Property, being a contribution of £23,000 from Victor’s entitlement to the cash in Vivien’s estate and £23,000 from the Defendant’s cash entitlement in Vivien’s estate. This notionally valued the Property at that stage at about £138,000 (3 x £46,000).

That left the Defendant and Victor as the remaining residuary beneficiaries of Vivien’s estate, being entitled to what remained in equal shares. What remained was the Property and a smaller amount of cash (£20,634.89 from the HSBC funds, excluding the LV funds).

On 29^th April 2022, the Defendant as Vivien’s executor executed an assent (“the Assent”) to vest the Property in his sole name, and as a result of the Assent the Defendant was subsequently registered on 1^st June 2022 as the sole proprietor of the Property at H.M. Land Registry. The Property had previously been registered in the names of Vivien and her late husband. It is the Defendant’s case that he was entitled to assent the Property into his sole name because he alleges that Victor had agreed to give all his interest in Vivien’s estate to the Defendant for no consideration at a family meeting on 26^th April 2022. The Claimants deny this.

It is common ground that the Defendant has not made a distribution of any part of Vivien’s estate to Victor or his estate, except that the Claimants accept that the Defendant did make a payment of £10,000 to the First Claimant on 18^th July 2022.

I have heard evidence from the following witnesses on behalf of the Claimants (including the Claimants themselves) at the trial of this action in the following order:

I have heard from the following witnesses on behalf of the Defendant (including the Defendant) in the following order:

Nicola Watson, another witness who had provided a statement in support of the Defendant, was out of the country and a Civil Evidence Act Notice had been served in relation to her evidence. Pauline Murray had provided a statement in support of the Defendant but unfortunately, she was unable to attend the trial due to a fall and her evidence was not relied upon at trial.

She is the granddaughter of Victor and daughter of the Second Claimant. She confirmed that she was not at the family meeting on 26 April 2022.

After Victor’s partner, Beryl, had died, she and Victor had become close and she managed his finances for him. Victor had always told her and her mother and aunt that they should not trust Gary. This was because he believed that Gary had had an affair with his wife. When the marriage had broken down, his daughters had had a difficult childhood and he had not seen them for some time. After they re-established the relationship, he was adamant that he wanted to leave everything to his two daughters.

In terms of the Property, she knew that Victor and his brother Gary had purchased Nicola’s share in the Property so that he could leave his half share in the Property along with all his other assets to her mother and aunt, being the Claimants.

He is the grandson of Victor and the son of Tracey. He became close to Victor from about 2019. Victor told him that he was leaving his assets to his two daughters in equal shares. He also told him that he and Gary were buying out Nicola’s share in the Property so that they both had a half share in the Property. He confirmed that Victor told him that he did not trust Gary.

She is one of the daughters of Victor and explained that she had been estranged from her father after her parents had divorced. However, they had developed a bond from about 2018 after her mother had died.

She confirmed that Victor had always told her that he wanted her and her sister to inherit everything from him in equal shares.

On inheriting a third of his sister Vivien’s estate, he and Gary had bought out Nicola, the other beneficiary, so that the two of them owned the Property in equal shares. After he had been discharged from hospital, shortly before he died, Victor had told her that he did not want the Property for himself and that he was content with his one bedroom bungalow in Shotton. He told her that he would tell Gary to sell the Property and get a small bungalow. She thought that Victor had said this to Gary. She remembered that when the two brothers had agreed to buy out Nicola, she thought that Victor told her that he thought this would make it easier for her and her sister when they inherited from him. In, addition, he had told her that he was thinking of replacing the kitchen and bathroom at the Property with a view to increasing its value but she had told him that there was no point in doing that. When he was in hospital, he had told her that he wanted his half share in the Property to go to her and her sister in equal shares.

She attended the meeting at the Property on 26 April 2022. It was a short meeting lasting only a matter of minutes. She said that the meeting appeared to discuss the terms of the Defendant’s will. She recalled that during the meeting the Defendant had said that under his will, 50% of the Property would be left to her and her sister and the other share to Lee, Hayley, Craig and Robert with £80,000 to go to the latter four. She told me that the Defendant was assuming that he was the sole owner of the Property but that her father did not say that. She did not know the terms of Vivien’s will until after Victor had died. She said that there was no discussion about Victor rejecting his share in the inheritance from Vivien. There was no discussion about buying out Nicola during that meeting. By this stage, her father, whilst present at the meeting, was very ill and she did not consider him to be “in his right mind”. She told me that she remembered that his feet were swollen and he was looking at the floor. She denied that he nodded his head in agreement with what was being said in the meeting. She denied that Victor said that all of his share of Vivien’s estate or the Property should go to the Defendant. After the meeting, she said that her father had again told her not to trust the Defendant.

She is a very old friend of Victor and had known “Webbs”, as she called him, since she was a baby. She would see him regularly as she cut his hair every 5 weeks and they would meet up on other occasions as well.

She said that he had told her on a regular basis that he was very proud that he would have something to leave to his daughters. He had also told her about his and the Defendant’s plans to buy out Nicola from the Property so that they would have an equal share in the Property. He did not tell her that he intended to leave the Property to Defendant.

She confirmed that neither she nor Victor trusted the Defendant. She recalled that on one occasion in March 2022, she had been with Victor in his bungalow and that the Defendant had walked into the property and helped himself to their sandwiches. On another occasion, Victor found a bank statement in a different place from where he had kept it and he suspected that someone had moved it after reading. In her statement, she says that “he had a knowing glance which meant he suspected it was Gary.”

She is the granddaughter of Victor and daughter of the Second Claimant.

She was clear that Victor wanted his daughters to inherit his estate in equal shares. She said that he would tell her not to trust the Defendant. She knew that he and the Defendant had bought out Nicola’s share of the Property but had not been told that Victor was giving his share to the Defendant.

She is the Second Claimant in these proceedings and is Victor’s other daughter.

She clearly had a very difficult childhood after her parents divorced and her father left the family home. She had lost contact with her father at one stage but they had later got back in touch once she had gone through a particularly difficult time in her childhood. She had also lived with Victor and his partner, Beryl, for a period of time during her childhood but that had not worked out. After Beryl had died in 2014, Victor kept in touch with her and her family on a far more regular basis.

It is clear from her evidence that Victor felt very badly about the childhood she experienced after he left the family home. He had always told her that he did not trust the Defendant. He had told her that he was leaving everything to her and her sister in equal shares to “make up for things”. There was a folder which Victor kept in the safe in his pantry which contained a DNAR, funeral plan, some readings for the funeral and a letter setting out his wishes. She said that this could not be found after Victor died. She clearly thought that the Defendant had something to do with its disappearance.

Victor had told her that he and the Defendant were buying out Nicola’s share of the Property so that she and her sister would inherit a half share in the Property from him. He had made it clear that he did not want the house himself as he was happy with his bungalow. She had told him not to bother replacing the kitchen and downstairs bathroom; she was adamant that this discussion about work to the Property was not about making it more comfortable for him and the Defendant to live in.

She was unable to attend the meeting on 26 April 2022.

She was adamant that she and her sister had relinquished Victor’s tenancy of the bungalow after he died and that her father had kept his tenancy on even though he was staying at the Property with the Defendant as he presented a falls risk.

He is the defendant and younger brother of Victor.

He said that he, Victor and their other brother, Vincent, who died about five years previously, went out for a drink every Saturday night for many years. He also said that he would contribute towards the cost of Victor’s rent and groceries “when he was short”. He would also take him to see their sister, Vivien, every Thursday.

He said that Victor’s health had deteriorated in 2021 and that Victor had asked him if he could stay with him for a short while. He stayed for Christmas and intended to return to his bungalow but was unwell and ended up in hospital in January 2022. He said that after he was discharged from hospital he had suggested to him that he lived with him in the Property and that in early 2022, Victor had given notice to the local authority to terminate the contract (previously known as tenancy) for the bungalow.

He said that as there was cash available in Vivien’s estate, he and Victor had discussed installing a wetroom in the Property to make it easier for Victor to shower as well as having the garden landscaped so that it was easier for the two of them to maintain.

He said that Victor had told him and several other people that he did not want anything from Vivien’s estate. Victor felt that the Defendant should benefit and not him as he “had not done anything for mum and dad except “cause them grief””.

He said that he had instructed his solicitor to draft his will on the basis that of his half share in the Property, half was to go to Victor’s two daughters and the other half to his granddaughter, son, step-son and nephew in equal shares. The residue of his estate was also to go to his side of the family, not Victor’s daughters.

He said that, in respect of the meeting at the Property on 26 April 2022, he had asked his solicitor, Andrew Jones of Macaskills, solicitors, to attend to read Vivien’s will. He invited Hayley and Nicola to attend. He did not invite the First Claimant so presumed that Victor did.

He said that Andrew Jones had read Vivien’s will out. There was then a discussion between all present, save for the First Claimant, but including Victor, who he says was living with him permanently by that stage, that he and Victor would buy out Nicola’s share of the Property and that she would receive a third of the cash in the estate. He had already paid some of this to Nicola prior to the meeting and paid her the balance on the following day. He said that Victor had made it clear during the meeting that he wanted nothing out of Vivien’s estate and that his share in Vivien’s estate would pass to the Defendant. He said that the First Claimant heard this.

He said that after Victor’s death, the First Claimant had told him that she believed that there was money left which was due to her from her father’s estate and that she had been told that she had a half share in the Property. He had told her that Victor had given that half share in the Property to him and that she had been made aware of this in the family meeting on 26 April 2022. She had said that even if the Property was going to him, the cash in Vivien’s estate had not and she requested £10,000. He gave this to her and he thought that he would make an adjustment to his will to readjust for the fact that he had given her the £10,000 at that stage.

He also said that about a fortnight later, both Claimants went to the Property saying that they owned half of the Property. He told them that there was nothing for them and that this was wrong.

There were several events he did not recall. He did not recall going to Macaskills office to instruct Mr Jones to act on his behalf in the administration of the estate of his late sister, Vivien. He denied seeing the HMRC “Return of Estate Information” form even though he had signed it on 14 October 2021. He did not remember receiving the Liverpool Victoria funds from Vivien’s estate in the sum of £5,212 as executor of her estate, saying that “I did not distribute it as I know nothing about it. All the money I received I paid out to everybody.”

He agreed that of the £99,900 odd he received from Macaskills in relation to the winding up of Vivien’s estate he paid none to Victor “as he had bequeathed it to me….John (he called Victor by his second name of John) told me that we would both buy Nicola out.”

He admitted that before the Property had been transferred into his name, he had asked his solicitor to draft a will giving half of the Property to the Claimants. He said that he had done this because he “wanted to benefit Tracy and Sally as they were nieces and I thought it was the right thing to do. I had lived there nearly all my life. It was not their inheritance. John gave me the Property from the word go. I tried to do things which were the best. As soon as I told him about Viv’s will, he said he wanted nothing to do with it and it should go to me as I had looked after Viv and my brother.” He said that he could not remember if he gave his solicitor instructions in March 2022 to transfer the Property into his sole name and to draft a will on his own behalf.

When it was put to him by Counsel for the Claimants that what he said happened at the family meeting on 26 April 2022 was untrue, his reply was that “my memory is not good. I was very ill at the time. The meeting was to sort out the will for John and to explain to Tracey that he was going to leave his share in the house to me.” He denied that all that happened during the family meeting was that information was provided to enable his solicitor to finalise his will.

He was adamant that Victor contributed to the meeting on 26 April 2022 and that Victor trusted him. In terms of Victor’s capacity in that meeting, he replied that “his mental state was bright as a button.” He was also adamant that during that meeting, Victor had said that he wanted the Property put into Gary’s name.

He denied having an affair and accused Victor’s ex wife of lying to Victor that they were having an affair.

He was also shown another Land Registry document entitled “Assent of whole of registered title(s) by personal representatives”. Again, this relates to Vivien’s estate and is dated 29 April 2022 and transfers the Property on the register of Land Registry to the Defendant. He said to Counsel for the Claimants that “this is the first time I have seen this” but when it was pointed out to him that he had signed the document, he said that “I might have seen it, thinking about it.”

He said that he had planned on leaving half of the Property to the Claimants “out of the goodness of my heart.” He knew nothing about the proposed restriction on the title (preventing disposition of the Property without the consent of the Claimants) until his solicitor had written to him about it.

It was interesting to note that after I had to adjourn the trial overnight whilst the Defendant was in the middle of his evidence, the Defendant turned up on the next day with documents upon which he sought to rely. I did not grant him permission to rely on these.

He explained that he had paid a total of £46,00 to Nicola out of the cash in Vivien’s estate. Even though there was money remaining in the account, he did not transfer any to Victor as “Victor had passed his inheritance over to me……Victor said that he wanted nothing to do with Vivien’s will. He said I had done all the work and looked after Vivien. We were going to make the house up to make it comfortable for me and him. I was not expecting him to die. He wanted me to have the house and he wanted me to have the money…..It is a lie that Victor’s family say that he was giving them the money.”

He accepted that Victor’s bungalow had been emptied after he died. He denied having the keys to the bungalow and entering the bungalow without permission. He denied taking the folder of documents including the letter containing details of Victor’s wishes from Victor’s property.

He said that after Victor’s death, the Claimants had demanded that he sell the Property as they wanted to put “their” money in a trust for Deron, another family member. “I told them that their dad had left them nothing. He had given it to me.” He said that the dispute had arisen because he had already given them the £10,000 and that they wanted more money. There is reference in the Claimants’ solicitors email of 24 January 2024 to Gary’s then solicitor, Mr Jones, to there having been “ a somewhat heated telephone conversation yesterday in which your client (the Defendant) made it clear that he would not be taking any action to secure our clients’ or the Estate’s interest.” The Defendant replied that he was at Ms Murray’s house when they phoned and that “they were abusive, calling me a thief and a liar.”

It was of note that he hinted at the fact that he has now re-written his will, replying to Counsel for the Claimants that this was the case but that “I am not going to disclose that. It is possible. Victor passed it onto me and I never had an inkling to change my will. It was always in the girls’ favour. He did not want to leave them anything.” He laughed when Counsel for the Claimants suggested to him that he had taken the letter indicating Victor’s wishes about his assets.

Mr Jones was the Defendant’s solicitor at the material time. He dealt with the winding up of Vivien’s estate and he drafted the Defendant’s will. He attended the family meeting on 26 April 2022. Mr Jones’ attendance notes are sparse. His way of working appears to be to note something down if it means that he has to take some sort of action but not to take any further note beyond that eg there is no attendance note relating to the family meeting on 26 April 2022. However, there is a draft will for the Defendant which Mr Jones has drafted which requires information, such as an address or information re residuary beneficiaries and that will was completed after that meeting so it would appear that during that meeting, Mr Jones obtained those details which were outstanding and was then able to finalise the Defendant’s will.

He had initially been instructed by the Defendant to obtain a grant of probate for Vivien’s estate. He did not recall the Defendant asking him to deal with the administration of the estate.

He believed that the Defendant had told him about him (the Defendant) and Victor essentially buying Nicola out of the Property and he was aware that there was an issue about there not being enough money for the Defendant to buy Victor out as the Defendant was living in the Property at the time.

In relation to Vivien’s estate, he was instructed to collect the HSBC moneys, pay the liabilities of the estate and to release the balance to the Defendant. He did not distribute the funds to the beneficiaries on the basis of instructions from the Defendant.

Once he had completed his work in relation to Vivien’s estate, the Defendant returned, and asked him to prepare a will on his behalf and to transfer the Property into the Defendant’s name. He did not recall what else was said. He said that he would have given the Defendant advice about the transfer of the Property to him on the basis that he was the executor and that there were other beneficiaries as well as him. He said that it is his practice to give general advice to executors that they must abide by the terms of the will and that whilst the Property could be transferred into his name, he would hold it as executor.

He said that he was instructed to draft a will for the Defendant leaving half of the Property to the Claimants.

He had no recollection of who attended the family meeting at the Property and, in the absence of an attendance note for that day, had no recollection of what happened in that meeting either. He thought it likely that he took the draft version of the Defendant’s will as at that date with him to the family meeting so that he could obtain the information which was outstanding. He thought that the draft will with his annotations which appears at page 157 could have been his attendance note of that meeting. Essentially, he has recorded in writing that half of the Property is to go to the Claimants in equal shares and the other half to members of the Defendant’s side of the family with the Defendant’s side of the family inheriting the residue of his estate. He recalled no detail from the meeting. He said that the transfer of the Property into the Defendant’s name would have been discussed as that was the reason the will was being written in that way. He had no recollection of this, however. He thought that it was a short meeting and that it could have lasted five minutes. He said that he was relying on his note of his meeting with the Defendant of 14 March 2022 (when the Defendant had instructed him to transfer the Property into the Defendant’s name and to prepare a will). The Defendant had executed the will and signed the Assent three days after the meeting on 26 April 2022, namely on 29 April 2022.

He did also recall that prior to this family meeting that he had advised the Defendant that he could register a restriction on the Property for the benefit of the Claimants but he did not recall when that was. Whilst the Defendant did not want this, he had said that he would abide by the terms of Vivien’s will. He understood that he was transferring the Property into the Defendant’s name as executor of Vivien’s will.

He had employed the Defendant for a lengthy period and also knew Victor but he was “more of a passing acquaintance.” He said that he had spoken to Victor in the pub after Vivien’s funeral. At that time, it is likely that Victor thought that he would be inheriting a quarter of Vivien’s estate but in his statement he says that Victor had told him that “it was his sole intention to leave his part of Vivien’s will, that is his third, to Gareth (Gary).”

He is the nephew of the Defendant and Victor and lives opposite the Property. He described himself as always having been close to them and their sister, Vivien. He said that the Defendant was the carer of Vivien. He said that after Victor had been in hospital, Victor wanted to go to the Property, the former family home, to live with his brother.

The Defendant had helped Victor out for many years. He had paid Victor’s rent for him from the 80s “right to the end”.

She is the granddaughter of the Defendant. She was present at the family meeting on 26 April 2022 and accompanied the Defendant to the meeting with Mr Jones at his offices soon thereafter.

She was adamant that during the family meeting, the Will was discussed and it was agreed that the Defendant and Victor would buy Nicola out of the Property. Victor also said that he did not want anything to do with Vivien’s estate and that it should all go to the Defendant to reflect his ongoing commitment to his family over the year. Victor had told Mr Jones to put the Property in the Defendant’s name. She said that the First Claimant heard this discussion but did not contribute or comment.

When cross examined by Counsel for the Claimant, she was adamant that details of the Will were read out “as why would Nicky be there; there would be no point in Nicky being there otherwise.” The terms of the Defendant’s will were touched upon once they had discussed the Will in the context of the Property.

She said that the purpose of the meeting was not to discuss the residuary beneficiaries under the Defendant’s will.

Nicola did not attend the trial as she was abroad. A Civil Evidence Act notice had been filed in relation to her absence. It is a matter for me what weight I attach to her evidence.

She said that the meeting was arranged to discuss the Will. She was happy to be bought out of the Property. She said that Victor had said that “he was happy for the Property to be put into Gary’s name as John (Victor) was not interested in it.” The Claimants were not discussed in the meeting.

She said that she and the Defendant had looked after Vivien and that the Defendant had lived with Vivien for a long time.

There was a marked difference in the presentation of the witnesses. The Claimants and their witnesses came across as very straightforward. They gave their answers in a direct fashion. They did not seek to give evidence by way of submissions. In marked contrast, I found the witnesses of the Defendant not to be so straightforward. The Defendant himself would deny having seen documents which he had clearly signed. When questions became difficult or awkward for him, he would simply not be able to recall events. On return to giving evidence on day two of the trial, he suddenly remembered things he had previously not remembered and tried to introduce additional evidence which should have been disclosed pursuant to standard disclosure. He had clearly been doing some “homework” overnight.

Douglas Lester’s account of his conversation / overhearing a conversation with Victor could easily have been misinterpreted by him. I am satisfied that Victor is likely to have said that he did not want the Property (given that he had his own bungalow) but given Mr Lester’s clear favourable view of the Defendant, I am satisfied that he could not be a “balanced” witness in the sense that he was quite obviously on “Team Gary”. Furthermore, his evidence was contradictory in that at one stage he said that he had overheard a conversation involving Victor at the funeral and at another stage he said that it was Victor who had told him that he did not want the Property. In addition, his evidence was clearly written with the benefit of additional information provided to him since these proceedings were commenced as he refers in his statement to Victor telling him at the funeral that Victor intended to leave his third of Vivien’s will to the Defendant whereas under the terms of the Will, she left only a quarter of her estate to Victor.

I appreciate that it is a stressful experience to give evidence in court but even taking that into account, Craig Webber came across as very aggressive in his manner in the box. He had clearly formed the view that the Defendant had done a lot for Vivien and subsequently Victor over the years, that Victor’s side of the family (the Claimants and their offspring) were relatively new to the family in the sense that they had not had much involvement with Victor until about 2018/19 and that the Defendant was therefore entitled to the Property in its entirety.

Hayley Panton was quite hostile and argumentative in her evidence. She gave evidence after the Defendant and it was clear to me that she had been preparing her evidence. She was overthinking things and, as Counsel for the Claimants pointed out to her, giving evidence by submissions as opposed to simply answering the question. She was almost arguing with Counsel for the Claimants in relation to various issues such as why Nicola would have been at the meeting if the issues in relation to the two brothers buying out Nicola had been resolved.

It is also significant that Hayley and Craig were beneficiaries of the Defendant’s estate so, assuming they remain so, they would benefit from the Defendant successfully defending this claim.

The principal issue is whether at the family meeting on 26 April 2022 there was an agreement that Victor would assign his beneficial interest in the Property to the Defendant and whether the Assent of the Property dated 29 April 2022 by the Defendant as executor in his own favour as sole owner was with the agreement of Victor.

Counsel for the Defendant submits there was such an agreement. Nicola was present at the meeting and she would not have been there had there not been a discussion about the beneficial interest in the Property. There is no dispute that there was a family meeting on 26 April 2022. Victor was present because he knew that the issue of the beneficial interest in the Property was to be discussed and that is why he invited his daughters to attend. That was why the solicitor was also invited. The Defendant’s will was also to provide for half of the Property to the Claimants. It was absurd to think that the Defendant made a will on the basis that he only owned half of the Property and that therefore only a quarter of the Property would be left to the Claimants. The First Claimant had made it clear that she was not close to the Defendant so there was no reason for the Defendant to leave anything to her save for because he had become sole owner of the Property as a result of Victor giving up his share in Vivien’s estate to him. The Assent was made on 29 April 2022, 3 days after the family meeting. It could have been made in March or April but it was not as it was made after the meeting when it was vested solely in the Defendant. The assent had no conditions that the Defendant was to hold the Property on trust and it would have contained such information had that been the case. He urges me to accept the evidence of the Defendant as to what happened at the meeting on 26 April 2022, that he would not have allowed the First Claimant to attend had he been dishonest and that he would not have paid Nicola her half share. He also suggests that one or both of the Claimants gave their solicitor instructions that there had been an agreement reached based on their solicitors’ letter dated 21 December 2023 (page 43 of the bundle). He is critical of Mr Jones’ attendance records and ultimately Mr Jones has no recollection of the meeting.

Counsel for the Claimants makes the point that Nicola was content to receive her share of Vivien’s estate in cash as she was not interested in the Property. That then left the Property and about £20,000 in cash in the estate. There was also the LV money which the Defendant received direct. This meant that the Defendant and Victor were entitled to half of the cash and half of the Property. The issue is whether there was an agreement reached that Victor would give up his share in Vivian’s estate to the Defendant. Victor may have said that he did not need the Property but that is not the same as saying he did not want anything from Vivien’s estate. The meeting on 26 April 2022 was to discuss the Defendant’s will, not Vivien’s. Mr Jones had already closed his file in relation to Vivien’s estate. Mr Jones’ practice was to make a note if something significant occurred and he did not on 26 April 2022. He would have made a note had he been instructed to make a gift and document a deed of variation. Mr Jones was clearly of the view that despite the Assent, the Property remained held by the Defendant on trust for the beneficiaries of the estate of Vivien. There was information outstanding on the draft will which Mr Jones had prepared for the Defendant and after that meeting, that information was completed, supporting Mr Jones’ view that he is likely to have obtained that information in the meeting. He criticises the Defendant’s witnesses.

Although it is accepted that the Claimants have to prove their case that they are entitled to a declaration that Victor’s estate has a 50% interest in the Property, on the balance of probabilities, the Defendant’s defence is that this was varied by agreement at the family meeting on 26 April 2022 when Victor agreed to give his share of Vivien’s estate to the Defendant. There is therefore an evidential burden on the Defendant to prove that an agreement as alleged by him was reached at the meeting on 26 April 2022. That is the crux of this case. In coming to a conclusion as to whether such an agreement was reached in that meeting, the family history is important.

The Claimants’ parents’ marriage had broken up because their mother was believed to have had an affair and their mother had told their father, Victor, that she had had an affair with the Defendant. Whilst the Defendant always denied this, this would explain why the Claimants said that Victor told them not to trust their uncle Gary. Furthermore, Carol Jones, a lifelong friend of Victor, gave evidence that Victor believed that the Defendant had had an affair with Victor’s then wife. Regardless of the fact that they continued to have a relationship as they were siblings, I am satisfied, on the balance of probabilities that Victor did not trust the Defendant as a result of that experience and that that attitude did not change. Carly Wilson, Victor’s granddaughter and daughter of Sally, gave convincing evidence of an incident during her birthday celebration in 2015 when there was an altercation and Victor had stormed out. Victor then rang her and explained that the affair was the cause of his frustration. She said that the relationship between Victor and the Defendant had always been strained. This sort of detail has an air of authenticity to it. Of course, the Defendant and his witnesses will argue that the relationship between Victor and the Defendant was good. Why else would Victor spend his last Christmas with the Defendant and end up staying with the Defendant before his final admission to hospital? Firstly, Carly Wilson says that her mother (Victor’s daughter, Sally) begged Victor to make peace with him and secondly, the best place geographically and practically for Victor to stay after he was discharged from hospital having been desperately ill was the Property where the Defendant was then living. In addition, the First Claimant said that she had looked after Victor for a week after he had been discharged home to his bungalow after his penultimate hospital stay. She had gone into see to him three times a day during that period. He had fallen and clearly presented a falls risk so she had suggested that he move in with the Defendant as he would be around, being retired, and she had to go back to work. Furthermore, the Property was closer to her home so it was easier for her to pop in and see Victor at the Property.

Whilst the Defendant and his witnesses stated that the Defendant had helped Victor out financially by paying his rent and buying his groceries, the Claimants and their witnesses were not aware of this. The First Claimant denied that this was the case. Victor had told her that the Defendant took him to see Vivien sometimes but not on a regular basis. If Victor told her this, I would have expected him to have told her about the Defendant buying him groceries and paying his rent. It he was planning on passing his share in Vivien’s estate to the Defendant, it could have been an opportunity for Victor to have an honest conversation with his daughters to explain why he was giving his share in Vivien’s estate to the Defendant, in terms of the fact that the Defendant had helped him out financially. Carly also said that she helped Victor with his finances and that she did not think that the Defendant helped Victor out financially. She would have known if Victor’s finances were so bad that he needed help from the Defendant. That was not her evidence. I am satisfied that the Defendant and his witnesses have exaggerated the Defendant’s financial contribution (if there was any at all) towards Victor. Carol Jones, Victor’s childhood friend who does not profit from the Will and therefore has no agenda, states that Victor was not short of money so she doubted that the Defendant contributed towards his rent and groceries.

As a result of the end of Victor’s marriage to the Claimants’ mother, the Claimants had a very difficult childhood and their father clearly felt that he had not been there for them. He wanted to make up for this. Victor had also had a difficult time in his youth and had been in trouble with the law but was clearly proud that he had some assets which he could give to his daughters towards the end of his life. Carol Jones gave convincing evidence that she went to see Victor after Vivien died and that he was proud that he could leave his daughters this inheritance. For all of those reasons, he would have wanted to keep his inheritance from Vivien’s estate so that he could pass it onto the Claimants. Carol Jones also said that Victor had told her that he and the Defendant had bought out Nicola’s share of the Property as he thought that it would be difficult for the Claimants if the Property was split in three. In hindsight, that is understandable. Given that Victor did not trust the Defendant he probably thought that if the Claimants wanted to sell the Property in the future when he was no longer alive, the Defendant would not be able to refuse to do so given that his share would have been equal to that of the Claimants and he would want to avoid a situation where, if Nicola had a third share in the Property, there was a risk that she would side with the Defendant as opposed to with the Claimants. Indeed, she has provided a statement for the Defendant not the Claimants in this litigation.

In the lead up to the meeting on 26 April 2022, the Defendant had liaised with Mr Jones the solicitor in relation to the winding up of Vivien’s estate. Mr Jones, the solicitor, dealt with the Defendant as executor of Vivien’s estate. By 22 February 2022 (page 240 of the bundle) Mr Jones wrote to the Defendant that he had “now received funds from HSBC and have transferred the balance to your nominated account. Please note your obligations in respect of distributing the will. ….Your file will be closed.” Therefore, there was no need for Mr Jones to attend the Property on 26 April 2022 to discuss Vivien’s estate because as far as he was concerned, he had carried out his duties in relation to Vivien’s estate. Furthermore, given that in that letter, Mr Jones reminds the Defendant of his “obligations in respect of distributing the will” it is clear that he is dealing with the Defendant as executor of Vivien’s estate, not as sole beneficiary.

It would appear that the Defendant then returned to Mr Jones, asking him to prepare a will for him. There is a handwritten attendance note dated 14 March 2022 by Mr Jones relating to the Defendant and it would appear that the Defendant asked Mr Jones to do two things for him, firstly to deal with transfer of the Property from Vivien to the Defendant and secondly, to draft a will for the Defendant leaving half of the Property to Hayley, Lee, Robert and Craig (the Defendant’s side of the family) and the other half to the Claimants. On 14 April 2022, Mr Jones sends the Defendant a letter enclosing a draft will. Hayley’s surname and address are missing from that draft will. In addition, the draft will deals with division of the entirety of the estate, not the Property specifically.

There is then another draft of the will with the surname and address of Hayley inserted in handwriting. Mr Jones said that this looked like his secretary’s handwriting so it would appear that she has received a message from the Defendant providing those details. There is then another draft will which has the surname and address of Hayley included in typing but in relation to the half share in the estate, it looks like Mr Jones has handwritten “House” and then underneath, it says “residue – Hayley Lee, Robert and Craig.” In my judgment, it is likely that this version of the draft will and the issue of residuary beneficiaries of the Defendant’s estate was considered in the meeting at the Property on 26 April 2022 because by 29 April 2022 there is a fully typed up will including this provision and it has been signed on that day by the Defendant. The handwritten notes on that draft version of the will are likely to have been added by Mr Jones having taken instructions in the family meeting. There is also a bill dated that same day addressed to the Defendant for “legal fees” which is likely to be for Mr Jones’ drafting the Defendant’s will.

On 29 April 2022, Mr Jones also completes the Land Registry document “Assent of Whole of Registered Title(s) by Personal Representatives.” On 1 June 2022, Mr Jones submits an application to enter a restriction form to the Land Registry providing that “no disposition by the proprietor of the estate is to be registered without the consent of Tracy Daly and Sally Webber or their conveyancer.” The applicant is listed as Gareth Webber. (Victor dies on 20 June 2022). This generates a letter from the Land Registry dated 6 September 2022 raising queries in relation to the Assent and, it would appear, the application for a restriction. This then results in a telephone call between Mr Jones and the Defendant on 15 September 2022 as there is a short note written by Mr Jones which states that “Gareth doesn’t want the restriction on title. He will honour it but doesn’t want any restriction if he wants to sell etc.” As a result of this a “Reply to Requisition form” is sent to the Land Registry on 23 September 2022 which states that “we wish to withdraw the request of the restriction to be entered.”. The Property is registered in the Defendant’s name but it was Mr Jones’ evidence that he understood this to be in the Defendant’s name as executor of Vivien’s estate.

Therefore, the only thing which was happening at around the time of the family meeting on 26 April 2022 was the finalisation of the Defendant’s will. In my judgment, that is likely to have been discussed in this meeting, particularly the issue of the residuary beneficiaries of the Defendant’s will.

It is significant that when the First Claimant attended the family meeting, she did not know the terms of Vivien’s will. This was also a very short meeting so not much could have been discussed. I am also satisfied that had something unexpected happened during that meeting, Mr Jones would have recorded it as that is the way he records matters. I accept the First Claimant’s evidence that it was not confirmed during the meeting that Victor and the Defendant would buy out Nicola’s share of Viven’s estate. That had already been discussed by them prior to this meeting and it is likely that they will have agreed it prior to this meeting. In addition, if the “agreement” had been reached during this meeting, why would they then have to agree jointly to buy out Nicola when the Defendant could have done this without Victor’s agreement. The First Claimant confirmed that the Defendant had told his solicitor that he wanted half of his share of the Property to go to the Claimants and the other half to his side of the family. She confirmed that her father did not say that the Defendant was the sole owner of the Property or that all of his share in Vivien’s estate was to go to the Defendant. Her father said nothing and simply looked at the floor. She said that he had swollen feet. Again, that is the type of minor detail which makes her account of this meeting convincing. Victor was, after all, a very sick man by that stage.

Furthermore, whilst Nicola did not give oral evidence at trial, her witness statement is interesting as she says that during the meeting, Victor said that “he was happy for the property to go into Gary’s name (my emphasis) as John (Victor) was not interested in it.” It is unfortunate that Nicola could not attend the trial but if Victor did say that, that is consistent with Victor not wanting the hassle associated with the Property. He had his own home. He knew that this was the old family home and that the Defendant was living in it prior to Vivien’s death. He also probably knew that he was not going to be around for much longer which turned out to be the case given that he died in June 2022. However, he was not giving away his share of the Property to the Defendant. If he had wanted that, surely he would have said that he was happy for the Property to go to the Defendant, not into the Defendant’s name. After all, if he were doing that and, indeed, if he were giving up his entire share in the Vivien’s estate, why go to the trouble of agreeing to buy out Nicola’s share with the Defendant? Why not tell the Defendant, he could have all of his share and leave the Defendant to then buy out Nicola’s share in the estate? It makes no sense.

Much has been made by Counsel for the Defendant about the content of a letter sent by Amgen Law, the Claimants’ solicitors to Macaskills, where Mr Jones works and who acted for the Defendant in this litigation initially, about a sentence in the second page of that letter which says that “we understand that the agreement between your client and the late Mr Webber (Victor) took place at the Property in April 2021 with a solicitor from your firm present. Given your firm was instructed by Mr Webber (Gary) in his capacity as an executor of the late Vivien O’Hanlon and the late Mr Webber was unrepresented, we would presume you have detailed notes of the attendance which strongly recommends independent legal advice be sought.” That sentence cannot, however, be seen in isolation as it is clearly prepared on the basis of other correspondence from Mr Jones, setting out his understanding of what happened. It notes the decision to buy out Nicola, effectively giving Victor and the Defendant a half share in the Property. It then goes on to state that “at this point, the normal course of action was apparently departed from and an email from your Mr AG Jones of 9 August suggests that the late Mr Webber and your client agreed that the Property be registered in your client’s (the Defendant’s) sole name. This was ostensibly to prevent a sale of the Property while your client was in occupation. The apparent “deal” was that your client would leave the late Mr Webber’s share in the Property to our clients (being Victor Webber’s sole beneficiaries). In effect, this equates to your client providing a “gentleman’s promise” that he would alter his will and then not change it. This is a wholly unsatisfactory situation as it in no way binds your client to comply and leaves the Estate severely exposed.”

The correspondence between Mr Jones and the previous solicitors instructed by the Claimants, Hughes Parry Solicitors, is also of note. In reply to a query to the Claimants’ solicitor about the will of Vivien, Mr Jones replies on 23 May 2023 that “we dealt with the estate of Vivian (sic) O’Hanlon and paid the residue to the executor Gareth Webber for distribution.” That is consistent with the Claimants’ case.

On 20 July 2023, the Claimants’ then solicitor again emails Mr Jones and states that “when we were initially instructed, the administrators notified us that the late Mr Webber (Victor) was a beneficiary under the Will of the late Mrs O’Hanlon. The administrators understood that the late Mr Webber was the joint owner of the late Mrs O’Hanlon’s property being 16 Westbourne Crescent, Buckley…..We are aware that as at the dates of Mrs O’Hanlon’s death she was the owner of 16 Westbourne Crescent …and we can see that on the 29 April 2022 an Assent was made from the Estate placing the property into the sole name of Gareth Webber. Thereafter the Land Registry records that Gareth Webber is the sole owner of the property….The Will of the late Mrs O’Hanlon leaves 25% of her estate equally to 4 beneficiaries and yet the property has been assented not into the name of the beneficiaries but into the name of only one beneficiary. Our client requires clarification….”.

Mr Jones replies to this by email dated 25 July 2023, stating that “those were our instructions from the executor. Of course he is bound by the terms of the will and is aware that he must honor (sic) the same. Please can you provide a copy of the will of Victor John Webber and confirm whether probate has been granted, If you can confirm your clients (sic) wishes we can advise our client as to what needs to be done.”

Having spoken to the Defendant, Mr Jones then emails the Claimants’ then solicitors that “we are instructed that it was agreed between Gareth Webber and Victor John Webber that the property would be transferred into the name of Gareth Webber as Gareth Webber was residing in the property and still does. This was to protect Gareth Webber from any sale of the property whilst still in occupation. As was also agreed Gareth Webber will bequeaths half of the property to Victor John Webber’s issue.”

What is clear there is that the Claimants do not understand why the property is registered in the Defendant’s sole name. If they knew about this, why would they be surprised at this? Furthermore, the additional information from Mr Jones about the “agreement” between the Defendant and Victor only appears to emerge after Mr Jones has had a meeting with the Defendant. Prior to that Mr Jones is only referring to the instructions which he received from the Defendant as executor of Vivien’s estate.

I am satisfied that Victor invited his daughters to the family meeting as he did not trust the Defendant. He said as much to the First Claimant immediately after the meeting ended. He was also a man in poor health and probably felt that he needed support from his daughters whom he trusted.

Counsel for the Defendant submits that the Defendant was a credible witness. I do not accept that he is. I am concerned that, as executor, he appears to have simply kept the LV money from Vivian’s estate without any attempt to distribute it in accordance with the terms of Vivien’s will. His evidence in the witness box was poor and I am particularly concerned that he gave evidence that Victor had decided to live with him and that it was Victor who ended his tenancy yet there is clear evidence in the form of text messages that it was the Claimants who cleared Victor’s rented property after his death and gave notice to the landlord. I am also concerned that in terms of the £10,000 paid by the Defendant to the First Claimant on 18 July 2022, this was clearly a distribution of Victor’s share of the remaining cash in Vivien’s estate. I have seen a text sent by the Defendant to the First Claimant dated 18 July 2022 which confirms that the Defendant transferred £10,000 to the First Claimant on 18 July 2022 and that when the First Claimant thanks him, he replies “It’s ok love, should have done it ages ago but other things on my mind xx”. It makes more sense that the Defendant is apologising for the delay in distributing the funds since Vivien’s death and Victor’s subsequent death as opposed to gifting this money to the First Claimant. If it were a gift, why apologise for the delay in sending her this money? It makes no sense. Furthermore, it is significant that despite the Defendant telling Mr Jones that he did not want a restriction placed on the disposal of the Property without the agreement of the Claimants but that he would nevertheless honour this, he hinted in his evidence in the witness box that he had changed his will so that the Claimants would no longer inherit from his estate. Therefore, based on his own unchallenged evidence, he would be an extremely dishonourable man who would not comply with an agreement he had reached with his brother.

I do not think that it is controversial that Victor and the Defendant agreed to buy out Nicola’s share of the Property. Accordingly, they both had an equal share in the Property. The real issue therefore which I have to determine is whether the Defendant has a valid defence to this claim on the basis that during the family meeting on 26 April 2022 “Victor agreed to give all his interest in the estate of the deceased (Vivien) including his interest in the Property to the Defendant absolutely and for no consideration ” (para 8 of the Defence). I find that there was no such agreement. For the reasons set out above, I find the evidence of the Claimants to be more credible and I do not accept the evidence of the Defendant and his witnesses.

At no stage and certainly not in the meeting on 26 April 2022 did Victor agree to give his share in the Property to the Defendant. He wanted to leave his assets to his daughters as some kind of compensation for their traumatic childhood and to make up for his absence. He did not trust the Defendant. He thought that the Defendant had had an affair with his ex wife. He would not, in those circumstances, have agreed to hand over his interest in Vivien’s estate to the Defendant. I am satisfied that he was not interested in the Property per se and that he said as much to other individuals. He had his own bungalow. He did not need the Property. He was probably not bothered about the Defendant remaining in the Property whilst Victor was alive. Victor was very ill. He probably knew that he would not be alive for much longer. That does not mean that he was giving his share in Vivien’s estate to the Defendant. He wanted to give his share of Vivien’s estate to his daughters. There was no agreement.

Accordingly I grant a declaration that Victor’s estate has a 50% interest in the Property. I note that the Claimants seek either an order that the Property be transferred into the joint names of the Claimants and the Defendant or that the Defendant accounts to Victor’s estate for his share of the Property. I believe from Counsel for the Claimants’ submissions that what is sought is an order that the Property be transferred into the joint names of the Claimants and the Defendants but if the alternative order is sought, I will deal with that at the next hearing. The claim for equitable compensation reflecting a market rent for the Defendant’s occupation of Victor’s share of the Property since Vivien’s death is not pursued as there is no evidence in relation to the market rent for the Property. There is also a claim for “further or other relief” and under that the Claimants seek the nominal sum of £100 for breach of the Defendant’s duties as executor of Vivien’s estate. However, I accept the submission that a specific sum of money has not been claimed for and that no such issue fee has been paid. Accordingly, whilst I am willing to find that the Defendant has failed to comply with his duties as an executor and has failed to distribute Vivien’s estate appropriately, I am not awarding compensation for that. I am willing to find that based on the evidence I have heard, the Defendant has failed to account for the LV moneys and that he must do so.