Tackaberry & Anor v Hollis & Ors

The matters for decision in this case arise out of the acquisition in 1930 of a property (“the Property”) known as 201 Widmore Road, Bromley, in Kent by Anthony Tackaberry (“Anthony”). Anthony was one of ten children of John Breene Tackaberry (“the Father”) whose children were all born in the decade immediately before and the decade immediately after the turn of the twentieth century. In order of age they were Alice, Mary (sometimes called Molly), Henry, Margaret (sometimes called Daisy), John, Thomas, James (“Cyril”), Gwendolin (“Bill”), Anthony and Francis. Anthony was the second youngest child being born in 1906. The youngest was his brother Francis (“Frank”) who was born in 1909. All the Father’s children are, like him, dead. Anthony died on 20^th January 1985, Frank on 7^th February 1995. The Claimants are Douglas Tackaberry (“Douglas”) Frank’s son and John Antony Tackaberry (“John”), the son of Thomas Tackaberry (“Thomas”) Anthony’s elder brother. Douglas is the sole executor of Frank’s estate and an executor of his elder brother Henry’s estate. John is an executor of Thomas’ estate. The First Defendant, Peter Russell Hollis (“Mr Hollis”) is an Australian solicitor no longer in practice who is the sole executor of Anthony’s estate. The Second and Third Defendants, who have played no part in the proceedings, are executors of the estates of Alice and Gwendolin (“Gwen”) Anthony’s elder sisters.

The Property was purchased in Anthony’s sole name when he was approximately 24 years old and so able to acquire it in his own name as opposed to his younger brother Frank who had not, at the time of the purchase, passed his twenty-first birthday. At the time of the purchase Anthony’s elder sister Mary and elder brother John were resident in the United States and remained so resident for all material times until their deaths. By comparison with their siblings they were wealthy. They play a marginal part in these proceedings which only concern the remaining eight children of the Father.

On 9^th September 1982 Anthony, who, by this date, had been living and working in Australia since 1951, made a second will (the “Second Will”) by which, after specific bequests of relatively minor amounts to his brothers and sisters, made Millicent Shortland, then known as Millicent Torto (“Mrs Torto”) his residuary legatee for the first time. For some time prior to making this will Anthony had been suffering from Parkinson’s disease and Mrs Torto, who had nursed him, had taken him into her home where he died. If Anthony, at the time of his death, was the sole beneficial owner of the Property it will pass, or its proceeds of sale if sold will pass, to Mrs Torto under the provisions of the Second Will.

The Claimants claim that, at all material times since its purchase, Anthony held the Property for himself and his siblings, other than Mary and John, (“the Siblings”) upon “trust for such of Anthony and Anthony’s siblingsas were living and if more than one in equal shares” see paragraph 45 of the Points of Claim, alternatively, upon “trust for Anthony and Anthony’s siblings in equal shares” see paragraph 46. It is the First Defendant’s case that, at all material times until his death, Anthony was the sole beneficial owner of the Property. The Second and Third Defendants have played no part in the proceedings and appear only to be bound by any order which the Court may make.

The background facts emerging from the documents. The Property was purchased in the name of Anthony for an initial price of £1,050. On 1^st November 1929 he paid by cheque a deposit of £100 in reduction of that purchase price. On 6^th November 1929 Anthony retained the services of Messrs Lucas & Bailey (“L & B”) to act for him in the purchase. Mr F.W. Bailey (“Mr Bailey”) of L & B had been Anthony’s parents’ solicitor. The first sentence of the letter reads:-

“I am negotiating for the purchase of a house and should be glad if you will act as my solicitor ... ”.

Those instructions being accepted on 8^th November Anthony wrote to Mr Bailey:-

“It is intended to raise a mortgage on the property to the extent of £500 the balance being paid in cash. You will note from a letter that I enclose that the vendor is willing to allow a mortgage of the amount we require [to] remain on the property, I should like you to get in touch with him and find out whether this would be more advantageous to me than a loan from a bank or building society.”

On 11^th November L & B wrote to the vendor’s solicitors:-

“We understand from Messrs W. Levens & Son that you are acting for the vendor of the above property, and shall be glad to receive draft contract [Sic] for approval on behalf of our client Mr A. J. Tackaberry.”

On 21^st November L & B wrote to Anthony:-

“I enclose letter and report today received from the builder I instructed. Having regard to the defects mentioned by the builder I must question whether under present circumstances any building society would advance more than £500. You should carefully consider the matter with the members of your family and then return the letter and report to me and say whether, notwithstanding the report, you still wish the purchase to proceed ….”

On 24^th November Anthony replied:-

“I regret that owing to various members of the family being away just now I have been unable to arrange whether we shall go on with the purchase of the house. I expect to be able to let you know definitely by Tuesday night’s post. …”

On 25^th November, however, Anthony was able to write to Mr Bailey:-

“We have now gone into this matter thoroughly and it has been decided that we shall proceed with the purchase.

From the beginning it was expected that we should have to lay out a fair amount on necessary repairs such as papering and woodwork repair. We did not however expect to have to repair roof, chimneys and drains and renew cisterns. We think that the vendor should meet us in respect of these last items and make us a substantial allowance to cover same. We should be glad if you would get in touch with him and see whether he is agreeable to this course.

We should be glad if you will proceed with applying to building society for[a] loan, we agree with you that in view of the report the application should be for £500 instead of the amount previously arranged.”

Mr Bailey appears to have taken up the matter of the condition of the house with the vendor and informed Anthony of a reduction of £20 in the price which he was able to obtain because on 30^th November Anthony wrote to Mr Bailey:-

“Although the vendor’s offer appears rather small we are inclined to accept it. The price asked for the house was £1,200 the vendor agreeing to allow something for repairs but our offer of £1,050 was accepted on the understanding that this allowance for repairs would not be made. Another thing is that we have been looking for a house of this situation and size for the past twelve months and feel that we should not risk this expense and trouble all over again. In these circumstances we think that we cannot hold out for more.”

Application was made to the Woolwich Building Society for a loan of £600 to assist in meeting the purchase price, but that was declined because of the condition of the Property. Throughout the correspondence involved Anthony continued to use the word “we” in giving instructions to his solicitors.

In the result the balance of the purchase price was met by Anthony by means of a loan to him by Barclays Bank of £500 and loans (“the Original Family Loans”) from his sisters Margaret, Alice and Gwen of £250, £150 and £100 respectively, and from his elder brother Henry of £100, the family loans being secured by a mortgage on the Property in favour of the lenders providing for interest on the sums lent at 6% per annum. The loan from Barclays Bank was also secured on the Property. In the meantime Anthony entered into a contract, as purchaser, for the purchase of the house from the vendor which contract was duly completed on 10^th January 1930 in accordance with its terms. In fact the various loans obtained by Anthony for the purchase of the Property provided him with a surplus of £70 over the purchase price. There is no evidence explaining why this surplus was lent but it may be inferred that it covered costs of the purchase or refurbishment works to the Property. Among the papers in evidence were notes found in L & B’s file, apparently, dealing with the purchase which set out how the purchase price was provided but which also contain the words “Beneficial J T tenants”.

On 23^rd January 1930 Anthony wrote to Mr Bailey asking for advice concerning an appeal against a rating assessment in respect of the Property. L & B pursued the appeal on Anthony’s behalf which was successful. In the course of correspondence L & B wrote to Anthony asking amongst other things for him to indicate when the Property would be occupied to which he replied on 6^th February 1930 “We hope to move to Bromley on 19^th March.” On 27^th March 1930 L & B submitted an account to Anthony in respect of their charges covering the purchase of the Property and other matters which Anthony paid by cheque sent on 7^th April 1930 enclosed in a letter in which he also said:-

“We are now quite settled down in the new house and like it very much although things seem a bit crowded after Waltham Abbey, but I expect we’ll get used to that.”

Mr Bailey responded with a letter of 8^th April in which he says “I was much taken with the house and feel sure you will all like it.” Included in L & B’s file was a note associated, it would seem, with the firm’s instructions to appeal the rating assessment in Anthony’s writing in which he describes the Property as having been “purchased by me with vacant possession on 10^th January 1930 for £1030” and which includes a note “purchased by Afor occupation by his parents, himself and sisters.” The first members of the Tackaberry family to occupy the Property were Anthony’s parents, himself and his sisters Alice and Gwen.

Anthony’s mother died on 21^st January 1931. On 25^th February 1931 Anthony wrote to L & B seeking help about tax payable on the Property.

In 1932 Anthony’s elder brother Henry won the then substantial sum of £10,000 on the Irish Hospitals Sweepstake. It is accepted that, by comparison with the other Siblings, Gwen had always been comfortably off. Henry’s win provided another Sibling with a substantial capital sum. There is no evidence that Henry used any part of his winnings to refinance the Property or to contribute in any way to its maintenance. However on 14^th June 1932 the Property was again charged in favour of Margaret and Gwen to secure loans to Anthony of £250 and £650 respectively, the former at 5% interest and the latter at 1%, demonstrably a concessionary rate. It seems from endorsements made on the mortgage of 10^th January 1930 and from a letter of 15^th June 1932 from L & B to Margaret that the Original Family Loans were repaid at this time and replaced by these loans. It seems from later evidence that Gwen’s loan of £650 was at least in part to finance refurbishment works to the Property.

It appears that in July 1932 Anthony instructed L & B to sell a strip of land forming part of the garden of the Property for £37 10s. From a handwritten note on L & B’s letter of 8^th July 1932 to Anthony it appears that this was to enable Anthony to raise money to repay a bank overdraft. For this purpose he had written to L & B on 7^th July as follows:-

“I have agreed to sell to Mr Chas Tyler of 5 Highland Road Bromley a small strip of my garden for the sum of £37 10s. Mr Tyler will be communicating with you in connection with this matter.”

There was in evidence a document dated 17^th July 1932 recording the consent of Margaret and Gwen to this sale the contract for which shows Anthony selling “as beneficial owner”. L & B sent their bill for their services in relation to the sale to Anthony. The net proceeds of £34 19s were credited to Anthony’s account at Barclays Bank.

On 15^th June 1934 Anthony took out a house owner’s comprehensive insurance policy in respect of the Property the amount assured being £1200. On 26^th August 1934 Anthony wrote to Mr Bailey:-

“My sister Gwendolin is shortly proceeding to America to obtain a visa. She must pass a sort of “means test”. Could you write to her bankers (Barclays Bromley) to the effect that she is interested in my house to the extent of £600 and so enable them to issue a letter to the American Consulate as to her means?”

Mr Bailey responded to the effect that “her charge is really £650”.

In correspondence with L & B in December 1934 Anthony can be seen giving instructions in relation to the fences surrounding the Property.

The Second Claimant was born on 13^th November 1939. The Father died on 24^th November 1943. Margaret died on 3^rd March 1946. In the meantime Anthony having been employed in the UK by Ashanti Goldfields between 1940 and 1942 went to work for that company in the Gold Coast in February 1946. Apart from his employment with Ashanti Goldfields, Anthony had been employed in the UK in responsible and, presumably, well-paid employment. This emerges from a CV of Anthony recording his various employments between 1923 and 1949. After rejoining Ashanti Goldfields in 1946 Anthony never again worked in the UK. From this CV it emerges that Anthony was never employed by a single employer for more than three years on end. However the CV was accompanied by references from his employers which universally praise the quality of his work and recommend him to future employers.

As already recorded in about 1951 Anthony moved to work in Australia where he remained for the rest of this life with occasional visits to the UK on holiday and to visit his relations. It is accepted that Anthony never occupied the Property after his departure abroad and that it was occupied from time to time by one or more of the Siblings and not exclusively those who originally moved into it in 1930. It is also accepted that for festivals such as Christmas and holidays, it was the habit of the Siblings to have family gatherings at the Property. It was also the habit of family members living elsewhere to visit the Property at weekends. In particular Frank appears to have lived in the Property for substantial periods of time.

In 1957 it was proposed that the Property be purchased by Frank. On 12^th June 1957 Anthony, writing from Australia, wrote to Mr Bailey at L & B, not realising that Mr Arthur Bailey had taken over the Tackaberry file from his father, as follows:-

“201 Widmore Road

It has been decided to sell the above property. My sister, Miss Alice M. Tackaberry, will act on my behalf. I would be glad if you would send me the necessary authorisations for signature.”

The proposed sale did not take place. It was the first of a number of abortive attempts to sell the Property.

On 5^th November 1958 Anthony executed his first will whereby he bequeathed his real and personal estate to his nephews and nieces.

On 2^nd May 1961 Messrs Collins & Co on behalf of Frank wrote to L & B under the heading 201 Widmore Road:-

“We act for Mr F.R.G. Tackaberry of 33 Heathdene Road Wallington, Surrey who is proposing to purchase the above property for the sum of £2700. We understand that our client already has an interest in the property which will be set off against the purchase price. We are further informed that you hold the deeds of the property and act for other members of the family whose interest our client is buying.”

On 3^rd May Arthur Bailey wrote to Alice informing her of this letter and commenting:-

“We do hold the deeds on behalf of your brother Anthony and there is nothing with these deeds to say that your brother Frank has any interest whatsoever in the property although I am under the impression that at one time he did have some interest. Will you please let me know whether the property is to be sold to your brother Frank for £2700 and the amount which is to be set off against the purchase price.”

On 4^th May Alice wrote to L & B “yes the house is being sold to Frank for that sum (£2700) less whatever he says. I never knew exactly how things were.” On 8^th May L & B wrote to Anthony in Australia informing him of Alice’s letter and continuing:-

“As you know, the property is in your name and I shall therefore be deducing title but shall be obliged if you will confirm the selling price and let me know the amount due to your brother. If you do not know, who will know please?”

Anthony’s response to this letter is dated 15^th May as follows:-

“I confirm that I am agreeable to selling the above property to my brother Francis R. Tackaberry for £2700. The proceeds of sale are to be allocated as follows:

Gwendolin M. Tackaberry.	700. 0. 0.	In settlement of Charge on the property
Francis R Tackaberry.	333. 6. 8.	1/6th. Of residue (£2,000.0. 0)
Alice M. Tackaberry. Henry J. Tackaberry. Thomas R. Tackaberry. Cyril J. Tackaberry. Anthony J. Tackaberry	333. 6. 8. 333. 6. 8. 333. 6. 8. 333. 6. 8. 333. 6. 8.	} }Equal Share of Legal Costs, }Stamp Duty, etc. to be }deducted from each of these }payments.

Net payment required for F.R. Tackaberry will thus be £2366 13s 4d

I would be glad if you will accept payment for the house on my behalf and pay the amounts as above. My share can be paid into my account at Barclays Bank Bromley Kent.”

Three matters are of note with regard to this letter. Margaret is omitted because she had died on 3^rd March 1946 although she left children. Gwen is also omitted from those to receive the £333 6s 8d “share” of the net proceeds after she has received £700 to release her charge for £650, the balance, up to the figure of £700 being, presumably, accrued interest. Finally Henry is shown as receiving a share of the proceeds.

Again this sale did not go through, though it seems from a letter from Frank’s solicitors to L & B that Frank was “in possession of the Property but we understand that this is a matter of arrangement within the family.” The failure to go through with the sale is explained by a letter of 28^th December 1961 from Alice to L & B saying that:-

“Frank can’t get a mortgage on 201 Widmore Road Bromley so we want him to rent it from us. …So now if you would be so good as to draw up some kind of an agreement letting him have 201 at say £200 a year ….”

There is no evidence that anything like this was done.

On 4^th July 1963 Anthony wrote to Arthur Bailey from Australia:-

“My sister Gwendolin M. Tackaberry has written stating that she would like to take over the Widmore Road house. I am quite agreeable to this and would be glad if you would arrange the transfer.

On 15^th May 1961 I advised you that I was agreeable to selling the house to Francis R. Tackaberry for £2700 but on my last visit to England I suggested to Frank that this figure be substantially reduced so that the sale could be completed. I think that this proposed reduction should be implemented in this new proposal so I consider that £1700 would be the figure to work on. Gwen would retain £700 in settlement of the charge in her favour and the net proceeds of £1000 would be shared amongst those listed in my letter of 15/5/61. Costs would be charged in accordance with normal practice.

I am sure everyone will be satisfied with this arrangement.”

Again Gwen, for no apparent reason, appears to be excluded from any “share”. On 10^th July Arthur Bailey wrote to Gwen:-

“I have today received a letter from your brother Anthony stating that he is agreeable to you taking over 201 Widmore Road and he suggests the purchase price should be £1700 so that as there is, I understand, £700 owing to you, the net amount to be found by you would be £1000 which sum less the costs would be divided between Frank, Alice, Henry, Tom, Cyril and Anthony in equal shares. Obviously Anthony will agree to this and I feel sure that your sister Alice will agree. I do not anticipate any difficulty with Henry or Tom but will Frank and Cyril agree? You will appreciate that when the matter came up in May 1961 the suggested purchase price was £2700. On that basis each one of the six would have had £333 6s 8d less a proportion of the costs etc. whereas on the present basis each one will only get £166 13s 4d less costs.”

Again nothing came of this exchange of letters.

On 17^th March 1965 Anthony wrote to Arthur Bailey:-

“My sister Gwendolin M. Tackaberry has revived her proposal to buy the above property and has asked me to write to you. I would be glad if you would arrange to have it transferred to her. £1700 was the price mentioned in my letter of 4^th July 1963 and I am prepared to let it go at that.”

On 14^th April 1965 Arthur Bailey wrote to Gwen informing her of Anthony’s letter asking whether she wanted to proceed but drawing her attention to the fact that, by contrast with the other Siblings, she would only obtain repayment of her advance as a result of the transaction but no share in the net proceeds. The letter does not mention it but she was obviously going to get the Property at a knock-down price if the transaction were to proceed. It only proceeded to the extent of the preparation of a transfer by Anthony to Gwen “as beneficial owner”.

On 18^th June 1966 Anthony wrote to Arthur Bailey saying that it looked as if the proposed sale was not going to proceed and asking Mr Bailey to send him a bill for his work in the matter commenting that “I must have given you a lot of trouble over this matter.” That letter and a subsequent letter of 18^th August 1966 included instructions about the insurance of the Property which it seems that Anthony was paying although there are indications that Frank paid at least some of the premiums when he was living at the Property.

On 27^th October 1966 Henry died.

On 4^th January 1967 Frank wrote to L & B that he needed to raise £500 pretty quickly and “my only asset is a share in 201 Widmore Road”. The letter continues:-

“Before he went back to Australia, my brother Tony told me that the proceeds from the sale would be divided evenly between the five of us.”

There is no evidence of what became of this proposal.

It appears that the question of the sale of the Property again surfaced in August 1967 when Frank wrote to L & B indicating that he wished to move out of the house and suggesting that Anthony had told him that the decision whether to sell the Property or not was to be his. In a letter dated 14^th August 1967 to Anthony L & B informed him of this approach. On 21^st August Anthony wrote to Arthur Bailey as follows:-

“I note that my brother Frank is now anxious to leave [number 201]. When I last saw him in January 1966 he said he wanted to leave then and as the rest of the family were agreeable to the house being sold I asked him to see an estate agent and arrange the sale but I heard nothing further from him. Lately my sister Gwen has been consulting with agents about the sale of the house and I would not like to upset any plans she may have made. If Frank is definitely leaving the place it could be sold much more simply and quickly.

Gwen has spent a lot of time and money keeping the house in good repair over the years so she has the greatest say in its disposal and although I am agreeable to the house being sold as soon as possible I would not now do anything without consulting her. Perhaps you could have a word with her and see what she intends doing now that there is a prospect of the house being without a tenant during the coming winter.”

It appears that in July 1968 on Gwen’s initiative the Property was put on the market for sale. On 8^th July 1968 the agents instructed in the sale of the Property wrote to L & B as follows:-

“We understand that you have been instructed to act on behalf of our mutual client Miss Tackaberry … in regard to the sale of her freehold property to our applicant Mr A. J. Salmins… at the agreed figure of £6,500 ….”

It seems from the correspondence which followed that this sale also fell through, on this occasion, because Frank was not in a position to move out of the Property which he was still occupying.

On 21^st July 1968 Alice died. The remaining Siblings were therefore Thomas, James, Gwen and Frank.

In a handwritten note of Arthur Bailey on the 1932 charge of the Property he notes that Anthony had told him that Margaret’s loan of £250 to Anthony, which the charge secured, had been repaid at an unspecified date but during her lifetime leaving Gwen’s loan of £650 outstanding.

There was in evidence a draft Declaration of Trust to be entered into by Anthony, which carries the date 1969. It is accepted that this draft came into existence in early 1969. The draft has been extensively altered in an unidentified hand particularly the second recital and by the insertion of a third recital. The first recital recites the conveyance of the Property to Anthony on 10^th January 1930 “in fee simple”. As altered the second recital should read:-

“(2)

The said property was purchased for the purpose of providing a family home for John Breene Tackaberry and Marie Ellen Tackaberry the parents of the parties hereto of the second part and for the said parties hereto of the second part…” [Anthony, Thomas, Frank and James].

The recital continues as altered repeating the reference to Frank with in addition the words “and his sisters”. A new third recital is added recording the fact that the Father and his wife made their home at the Property. The fifth recital records that the consideration for the purchase of the Property by Anthony “was not in fact provided by [Anthony] alone but was provided by the parties of the second part” the four surviving male Siblings, Anthony, Thomas, Frank and James.

The sixth recital records that “immediately following the said conveyance [the 1930 conveyance] extensive works of repair and alteration were carried out to the said premises at a cost of £650 which sum was advanced by way of loan by [Gwen] to the said [Anthony] at interest. Interest on the said sum was paid by [Anthony] to [Gwen] for some years but for many of the said years has been waived and the said sum of £650 is still due and owing to [Gwen].” The seventh recital recites that “the parties hereto agree and admit the Recitals hereinbefore contained and have agreed to enter into this deed in the manner hereinafter appearing.”

By clause 1 of the draft deed “[Anthony] shall henceforth stand possessed of the said freehold property upon trust to sell the same and to stand possessed of the proceeds of such sale after payment of the costs thereof and also of the rents and profits until sale of the said freehold property upon trust (after payment thereout of the sum of £650 to the said [Gwen]) for the parties hereto of the second part as tenants in common in equal shares.”

This draft deed was never entered into by Anthony and it will be seen that many of its provisions are inconsistent with facts apparently recorded in documents referred to earlier in this judgment. Its significance is perhaps, in the first place, to show that in 1969 Gwen’s loan of £650 had not been repaid and part at least of the interest accruing due on it, albeit at a very concessionary rate, had been waived. Secondly it contains the suggestion that part at least of the purchase price of the Property in 1930 had been provided by Anthony’s brothers though it does not appear how they actually did so. Thirdly the deed makes no reference that Anthony, at the date of its preparation, was already holding the Property upon trust for the surviving Siblings as one might expect had that been the case. Fourthly it is to be noted that Gwen is again omitted from the class of beneficiaries to whom the draft makes Anthony declare himself trustee.

On 21^st February 1969 Anthony executed a codicil to his first will the material passage in which is at paragraph 1 which reads “I devise free of duty my freehold dwelling house and premises at 201 Widmore Road Bromley … to such of them my sister [Gwen] and my brothers [Thomas, Frank and James] as shall be living at the date of my death and if more than one in equal shares absolutely.”

On 24^th July 1970 Anthony wrote to Arthur Bailey under the heading 201 Widmore Road:-

“I am considering claiming for refund of part of the UK income tax deducted from my UK dividends. The return I have to complete asks if I possess or keep a place of abode in the United Kingdom. Before completing this form I would be glad if you would advise how the claim would affect my position with the UK tax department. I have paid no tax on this property for years. Presumably my brother [Frank] paid any taxes which were due. I have received no rent or other payments from the house but I question whether the UK tax department would believe this. The amount of possible refund for this year [1-7-69/30-6-70] is about £25. Would you please advise by air mail whether I should proceed with or defer my claim.”

To that letter Arthur Bailey replied:-

“I am very doubtful whether 201 Widmore Road is a place of abode available for you. If the furniture in the house is yours then definitely it would be a place of abode, but if as I believe to be the case the furniture belongs to your brother Frank or anyone else then I cannot see that it is a place of abode. Furthermore could it not be said that you are a part owner only of the property. ”

In a letter of 13^th August 1970 Anthony indicated that he was not going to make a claim.

Thomas died on 15^th May 1971. James died on 16^th August 1974. Thus the only survivors of the Siblings were Anthony, Gwen and Frank at this date.

On 16^th February 1977 Anthony wrote to Arthur Bailey pointing out that he was rising 71 years old and should sort out his private affairs. His letter continues:-

“We will have to decide what to do with the Widmore Road house. It is in my name but Gwendolin and Francis have an equal interest in it with me. Frank has been living there rent free for some time (he pays the rates and tax on it) and I would not like to disturb this arrangement. I would be glad to have your suggestions.”

Mr Bailey’s response is dated 18^th March 1977 and is as follows:-

“201 Widmore Road stands in your name although I believe you owe your sister Gwendolin £650 unless of course it has been repaid since October 1968 which I doubt.

By the will and codicils you have left this property on your death to Bill [Gwen] and your brothers Tom, Frank and [James]. Tom and [James] having died it means the property will pass to such of them [Gwen] and Frank as are living at the date of your death. That is to say that if one only is living at the date of your death that one will take the whole property and if neither of them are living at the date of your death then the property would fall into residue and pass under your will to such of them Michael, Pauline, John and Frank’s child or children as shall be living at the date of your death and attain the age of 21 years and if more than one in equal shares.”

He goes on to recommend that Anthony leave his existing will to stand. In his response of 23^rd March 1977 Anthony confirmed that Gwen had not been repaid. It is the Claimants’ case that Anthony was something of a rolling stone living from hand to mouth and seldom having any money in reserve. There are contra-indications to this suggestion in the documents recording Anthony’s work record up to late 1949 to which I have already referred. It is true that Anthony does not seem to have stayed in any particular employment for more than two or three years but his employers seem to have been pleased with him. Two letters, from L & B to Barclays Bank dated 2^nd August 1977 and from that bank to Anthony dated 7^th September 1981 show that in 1977 Anthony held a portfolio of investments and that in 1981 he had a holding of British Savings Bonds and a life insurance policy. These letters do not exclude the possibility that Anthony had other investments and savings which were not mentioned.

In December 1981 a yet further attempt was made to purchase the Property which is evidenced by a letter of 31^st December of that year from the Christian Action Bromley Housing Association Limited addressed to Frank who was at this time living alone in the Property. That letter offers to buy the Property for £39,000 excluding the strip of land sold by Anthony many years previously in the circumstances which I have already described. This approach was notified to L & B where a Mr Clark was dealing with Mr Arthur Bailey’s work, he having been taken ill. Mr Clark pointed out that it was necessary to get Anthony’s consent to any sale since it was held in his name. In due course Anthony was notified of the approach and by letter of 27^th January 1982 gave his consent to the sale at £39,000 indicating that “the proceeds of sale of the Property are to be divided equally between [Frank and Gwen] and myself….” There followed correspondence directed to whether Margaret’s loan (referred to as “Daisy”) of £250 secured on the Property had ever been repaid. At this stage Tony was suffering from Parkinson’s disease and Mrs Torto with whom he was living was writing his letters for him or they were being typed. It seems that the only loan in respect of which there was a question as to whether it had been repaid was the £250 lent by Margaret. No issue appears to have been raised with relation to Gwen’s loan of £650 which, as already noted, appears to have still been outstanding in March 1977. Again this proposed sale of the Property appears to have run into the sand.

In mid-1982 Mr Hollis was retained by Anthony to advise him. On 9^th September 1982 Anthony was taken to a meeting with Mr Hollis by Mrs Torto. That meeting was described by Mr Hollis and Mrs Torto in their oral evidence and was in two parts in the morning and in the afternoon with a break for lunch. The purpose of the meeting was the preparation of a new will for Anthony. Such a will was prepared and executed by him in due form in the course of the meeting. At the same time Anthony entered into a general power of attorney in favour of Mr Hollis over his affairs. The will made a number of bequests in favour of individuals including bequests of 1,000 dollars to Gwen and Frank. Subject to those bequests which totalled rather more than $10,000 Anthony left the residue of his estate to Mrs Torto. The description of the meeting by Mr Hollis and Mrs Torto was not challenged.

In the late autumn of 1982 John visited Anthony in Australia. John gave evidence and, in his witness statement between paragraphs 19 and 25, describes this visit. Save as to paragraph 24 this part of his evidence was not challenged. He describes how he found Anthony suffering from Parkinson’s disease being looked after at their home by the Torto family and their anxiety to obtain sufficient funds to provide him with some of the comforts of life. He describes how, therefore, the discovery, shortly before his arrival, that Anthony had at least an interest in a house in England, which was available to be sold, came as a godsend. At paragraph 24 of his witness statement John describes how, in the course of his discussions with Anthony during this visit, Anthony said to him that he believed the Property belonged to the family and that he did not consider it to be his to dispose of but if sold the proceeds should be shared between himself, Gwen and Frank.

On 8^th December 1982 Mr Hollis wrote to Anthony consequent on their meeting on 9^th September and having been provided by Anthony with some documents. In the first paragraph of the letter he asked for confirmation “that the 201Widmore property was purchased out of your own funds and not left to you under a will.”

On 10^th February 1983 Mr Hollis had a further meeting with Anthony at his office. Mr Hollis gave evidence describing this meeting which appears between paragraphs 11 and 14 of his witness statement upon which he was cross-examined. Mr Hollis’ evidence was based on an attendance note prepared by him as a result of the meeting. Mr Hollis’ evidence of what Anthony told him at this meeting by reference to his attendance note was that Anthony had said that he met the purchase price of the house in 1930 assisted initially by loans from his family which had been repaid. Margaret lent him £250 and Gwen also lent money the amount of which he thought was £650. Both those loans were repaid, Gwen being repaid by instalments. Anthony could not recollect whether he had paid to Gwen the interest becoming due. This loan was to renovate the Property. Anthony stated the house was his house, and he paid for it, but his father wanted him to let his brothers and sisters live in it. Of the original purchase price Anthony asserted that he had “put up £500”.

There was in evidence a letter, dated 28^th March 1983, written by John to his sisters Mary and Gwen and to Frank describing his visit to Anthony the previous year. This is a long letter. In it, under the heading “the financial position”, John described how Anthony needed money to provide for himself while living in the Torto household and, under the heading “the way ahead”, that the solution would be the sale of the Property and the division of its proceeds amongst those entitled. The letter continues:-

“When the house was originally purchased, Daisy and Bill [Margaret and Gwen] contributed financially to its purchase, while the house was actually conveyed into Tony’s name as a matter of convenient administration. (In passing I consider it would be a rather curious piece of convenient administration and would in due course be intrigued to know the reason why). The technical administrative steps do not appear to have been taken to clear the title in respect of the original contribution by Daisy and Bill, nor indeed does any step appear to have been taken to execute some record of the way in which the house proceeds were to be divided up in the event of a sale. However it seems to me to be clear that Tony is presently of the view that the right course is to share the proceeds three ways, that is to say, between himself, Bill and Frank.”

John made a further visit to Anthony in Australia in September 1984. On 26^th October 1984 he wrote a letter for distribution to the Tackaberry family describing his visit. The letter then goes on to deal with the problem of the Property where he says:-

“As I understand it, Tony, years ago, proposed (or agreed to the idea of) a three-way split between himself, Frank and Bill. However so far as I am aware this idea was never formally recorded in an executed deed, although if my recollection is correct he was generally in favour of this idea still two years ago … Since such a resolution would have advantages for all three (some much needed cash for Tony, capital – for flat – for Frank and repayment of investment for Bill [Gwen]) I took it upon myself to instruct my own solicitors when I returned to the UK to look at the situation and comment on the three-way split idea. In sum, the advice which I was given was that the family appeared to have set up an informal trust of the Property and it may indeed have amounted to a tontine (an arrangement whereby the survivor of a pool of persons takes the whole fund). ”

The reference to a “tontine” is apparently a reference to an Irish custom whereby Irish families bought a home for the family vesting it in the youngest member of the family, who was likely to survive longest, but intending that, if matters did not work out as planned, the property would end up with the last surviving family member.

On 11^th October 1987 Mr Hollis wrote to Frank a “without prejudice” letter which is nonetheless in the bundle of documents before the Court. By this letter Mr Hollis was seeking to come to an agreed arrangement for the disposal of the proceeds of sale of the Property if and when sold. The letter contains ten questions for Frank to answer. Frank referred that letter to Messrs Rooks Rider solicitors whom he was then instructing, Mr Hollis, as Anthony’s attorney, having withdrawn instructions from L & B. Rooks Rider responded by seeking Frank’s comments on Mr Hollis’ ten questions.

The first question which was asked was “Is it correct that you did not contribute to the purchase of the house? As far as I am aware you did not in fact put up money at the time but I shall be grateful if you will confirm this.” The answer to that question from Frank was “No, I did not contribute any lump sum towards the purchase of the house and until quite recently I had thought that the money had been put up by Gwen and Daisy [Margaret] and this seemed to be confirmed by the endorsements on the deeds that Gwen had put up £900 or £950 and Daisy £250 or £200 which covered the cost. Now I understand Gwen was given the money by Henry to get the purchase cleared up. Henry had won £10,000 in the Irish Hospitals Sweep in 1932.”

The second question was “I was not given to understand that Tony paid for the house. I was given to understand that more than half the purchase price was put up by Henry and that Gwendolin and Daisy also put up part of the money. I have no information as to Tony putting up any of the money at all. Do you know whether Tony put up any of the money and if so, have you any idea how much?” Frank’s answer to the second question was “I feel quite confident that Tony did not contribute anything to the purchase. In the 1930s jobs were scarce and wages and salaries low particularly for those without any qualifications other than education to matriculation level which I and my brothers were. None of us had any capital except Henry after his sweepstake win.”

The third question was “I did not understand that Tony repaid all loans. In the first place I did not think that all the loans had been repaid and in the second place there was no reference in my information to Tony having provided the money to repay any of them. Do you know anything to the contrary?” Frank’s answer was to the effect that money was extremely tight in the family at the time and had to come from those in employment. “Tony collected these sums and paid the bills. I do not remember that any of this money was used other than for domestic expenses.”

The fourth question was “My understanding was that Tony had no option about leaving the family in occupation when he left. Although the legal estate had been vested in Tony as the youngest of the family and therefore likely to live the longest he was merely a trustee and had no option as to who occupied the Property. Do you know anything to the contrary? Do you know what your father’s wishes were in connection with the matter?” Frank’s answer was “I must have misled you in regard to seniority. I am the youngest of the family. Tony was three and a half years my senior. I did not become 21 until October 1930 and as Tony had had longer business experience I assumed those were the reasons he got the job. My father had little or no say in any of these arrangements. The sisters and brothers regarded the house as home and came and went as they pleased.”

The remaining questions and answers are not material to the issues but there is a postscript in which Frank said:-

“Tony last visited England in 1977 and there was no evidence of Parkinson’s disease then but I remember there was some general discussion about wills and Tony said that there would no [sic] trouble with his will as his estate would be divided six ways. I assumed that took care of nephews and nieces but it seemed to indicate the existence of a will then whereas the present will we are dealing (sic) was probably drawn up shortly before his death at an advanced stage of the disease and much influenced by Mrs Torto. That will would clearly indicate his understanding of the ownership of the house. I have been wondering whether that will had been drawn up by Lucas and Bailey’s successors.”

Anthony died on 20^th January 1985.

Gwen died on 18^th October 1991.

Frank died on 7^th February 1995.

The oral evidence

The material parts of John’s witness statement are his “understanding” of the ownership of the Property between paragraphs 12 and 14 and his description of his visits to Anthony in Australia between paragraphs 19 and 29. At paragraph 12 of his witness statement John says:-

“I always understood since I was any age to understand anything that the Property belonged to family members and that any member of the family was entitled as of right to return and live there. It never crossed my mind that it belonged to any one of them. ”

Then at paragraph 13, having said he was never involved in discussions of proposed sales of the Property in 1982, contributions to the purchase price or mortgages of the Property because he did not see them to be relevant because the Property was a “family home”, he continues:-

“Later on when I specifically started to discuss the ownership of the Property with Frank and [Gwen] they told me that it went to the last one surviving which they all expected to be Frank. … I cannot recall anyone explaining to me why the Property was held in Tony’s name. I assume it was because he was around and was the youngest male over 21.”

John’s witness statement then continues to point to the similarity between the arrangement under which he appears to have understood that the Property was held with an Irish “tontine” under which a family house is held in the name of the youngest family member in whom it is likely that it will ultimately become vested but in default vesting in the last survivor.

I have already summarised the contents of paragraph 24 of his witness statement where he deals with his first visit to Anthony in Australia.

In cross-examination it was pointed out to him that there is no mention of his conversation with Anthony, described in paragraph 24 of his witness statement, in which Anthony said that he did not regard the Property as his to dispose of, in his letter of 28^th March 1983 written to Margaret, Gwen and Frank in which he describes that visit. In the course of his cross-examination he introduced, for the first time, the suggestion that his uncle Henry, one of the Siblings, was not to be included amongst those for whom Anthony was holding the Property in trust. This was, according to John, because of the wealth he had acquired as a result of his win on the Irish Hospitals Sweepstake but also because he had gone to live in China which John said happened before the Property was purchased in 1930: see paragraph 10 of his witness statement.

This claim was first advanced in correspondence in April 2005. These proceedings were commenced on 21^st April 2006.

The law

Where land is acquired in the sole name of an acquiring party the burden of proof rests on a non-acquiring party or parties to show that there was some agreement between the acquiring party and the non-acquiring party or parties, express, or to be inferred from their conduct at the time of the acquisition, that the beneficial ownership of the property acquired was to be shared between them: see per Lord Hope inStack v Dowden [2007] UKHL 17 at paragraph 4.

The proper approach of the court in determining whether such an agreement has been established is summarized in the judgment of Lord Justice Mustill in Grant v Edwards [1986] 1 Ch 638 at page 651 in a case where the Claimant was a female cohabitant who had assisted with work to improve the property in question.

“(1)

The law does not recognise a concept of family property, whereby people who live together in a settled relationship ipso facto share the rights of ownership in the assets acquired and used for the purposes of their life together. Nor does the law acknowledge that by the mere fact of doing work on the asset of one party to the relationship the other party will acquire a beneficial interest in that asset.

(2)

The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing law of trusts. There are no special doctrines of equity, applicable in this field alone.

(3)

In a case such as the present the inquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of the acquisition. Second, if the answer is "Yes," by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself, and (b) referable to whatever happened on acquisition. (I use the expression "on acquisition" for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.)

(4)

For present purposes, the event happening on acquisition may take one of the following shapes. (a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. The parties do not themselves make explicit what the claimant is todo. The court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor's promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) An explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way.

(5)

In order to decidewhether the subsequent conduct of the claimant serves to complete the beneficial interest which has been explicitly or tacitly promised to her the court must decide whether the conduct is referable to the bargain, promise or intention. Whether the conduct satisfies this test will depend upon the nature of the conduct, and of the bargain, promise or intention.

(6)

Thus, if the situation falls into category (a) above, the only question is whether the claimant's conduct is of the type explicitly promised. It is immaterial whether it takes the shape of a contribution to the cost of acquiring the property, or is of a quite different character.

(7)

The position is the same in relation to situations (b) and (d). No doubt it will often be easier in practice to infer that the quid pro quo was intended to take the shape of a financial or other contribution to the cost of acquisition or of improvement, but this need not always be so. Whatever the court decides the quid pro quo to have been, it will suffice if the claimant has furnished it.

(8)

In considering whether there was a bargain or common intention, so as to bring the case within categories (b) and (d) and, if there was one, what were its terms, the court must look at the true state of affairs on acquisition. It must not impute to the parties a bargain which they never made, or a common intention which they never possessed.

(9)

The conduct of the parties, and in particular of the claimant, after the acquisition may provide material from which the court can infer the existence of an explicit bargain, or a common intention, and also the terms of such a bargain or intention. Examining the subsequent conduct of the parties to see whether an inference can be made as to a bargain or intention is quite different from examining the conduct of the claimant to see whether it amounts to compliance with a bargain or intention which has been proved in some other way. (If this distinction is not observed, there is a risk of circularity. If the claimant's conduct is too readily assumed to be explicable only by the existence of a bargain, she will always be able to say that her side of the bargain has been performed.)”

In the same case Sir Nicholas Browne-Wilkinson at page 654 under the heading of “The proof of the common intention” and, having dealt with cases where direct evidence of such an intention is present, goes on to consider the requirements where that intention can be inferred as follows:-

“(b)

Inferred common intention (pp906A-908D): Lord Diplock points out [in Gissing v Gissing [1971] AC886] that, even where parties have not used express words to communicate their intention (and therefore there is no direct evidence), the court can infer from their actions an intention that they shall both have an interest in the house. This part of his speech concentrates on the types of evidence from which the courts are most often asked to infer such intention viz. contributions (direct and indirect) to the deposit, the mortgage instalments or general housekeeping expenses. In this section of the speech, he analyses what types of expenditure are capable of constituting evidence of such common intention: he does not say that if the intention is proved in some other way such contributions are essential to establish the trust.”

The decision of the Court of Appeal in Grant v Edwards has recently been approved and applied in Stack v Dowden in particular in the speech of Lord Neuberger at paragraph 124 and following where he says, under the general heading of “Beneficial ownership on acquisition: constructive trust”:-

“124.

In many cases, there will, in addition to the contributions, beother relevant evidence as at the time of acquisition. Such evidence would often enable the court to deduce an agreement or understanding amounting to an intention as to the basis on which the beneficial interests would be held. Such an intention may be express (although not complying with the requisite formalities) or inferred, and must normally be supported by some detriment, to justify intervention by equity. It would be in this way that the resulting trust would become rebutted and replaced, or (conceivably) supplemented, by a constructive trust.

125.

While an intention may be inferred as well as express, it may not, at least in my opinion, be imputed. That appears to me to be consistent both with normal principles and with the majority view of this House in Pettitt, as accepted by all but Lord Reid in Gissing (see at 897H, 898BD, 900E-G, 901B-D, and 904E-F), and reiterated by the Court of Appeal in Grant v Edwards [1986] Ch 638 at 651 F-653A. The distinction between inference and imputation may appear a fine one (and in Gissing at 902G-H, Lord Pearson, who, on a fair reading I think rejected imputation, seems to have equated it with inference), but it is important.

126.

An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.

127.

To impute an intention would not only be wrong in principle and a departure from two decisions of your Lordships' House in this very area, but it also would involve a judge in an exercise which was difficult, subjective and uncertain.”

Conclusion

Paragraph 44 of the particulars of claim summarizes the factual matrix upon which the Claimants base their case that Anthony acquired the Property subject to a trust for the Siblings as follows:-

“44 At the time the Property was purchased it was intended by Anthony and his Siblings, other than Mary and John, that the beneficial interest in the Property would not be in Anthony alone but would be shared between them.”

This matrix of fact, it is submitted, results in the two alternative trusts which the Claimants say were imposed on the beneficial interest in the Property and which I have summarized in paragraph 4 of this judgment. It is accepted that there is no direct evidence of any agreement or arrangement capable of supporting the existence of such a trust. But it was contended that the documentary evidence of what took place at the time of the purchase of the Property, and the evidence of the conduct of the parties subsequently, sufficiently supports the existence of a common intention to create such a trust so as to discharge the burden of proof resting on the Claimants. I have arrived at a conclusion contrary to the Claimants as to the effect of the evidence from the documents that came into existence at the time the Property was purchased. I now consider the Claimants’ interpretation of the evidence, again documentary, of events subsequent to the purchase.

The Claimants place reliance on the letters of 2^nd, 3^rd, 4^th, 8^th and 15^th May 1961, the material contents of which I have set out at paragraph 26 of this judgment and following. It was submitted that those letters show Frank claiming an interest in the Property, in the course of his attempt to purchase it in 1961, through the solicitors which he had instructed for that purpose and an acceptance by Arthur Bailey in response that he had been “under the impression that at one time he did have some interest.” It was submitted that Anthony’s letter of 15^th May is to be construed as an acceptance by him that the Siblings had such an interest. It was then submitted that the only “interest” which Frank could have had at that time was a beneficial interest under a trust which Anthony was acknowledging.

I am unable to accept these submissions. It is clear from her letter of 4^th May that Alice was unaware that Frank had any such interest. On the Claimants’ case she was a member of the class capable of benefiting, with Frank, under the alleged trust and you would have expected her, therefore, to have been aware of it if it existed and to have mentioned her own interest in her letter.

It is the Claimants’ case that Gwen was also a beneficiary, yet Gwen is not acknowledged as a sibling to receive a share by Anthony in his letter of 15^th May. This difficulty is dealt with by the Claimants in their submissions as being simply a mistake. I do not accept that explanation because it is a mistake which the documents show being repeated subsequently when sharing the proceeds of sale of the Property is considered later in the course of subsequent attempts to sell it: see the letter of 4^th July 1963 from Anthony to Arthur Bailey and the latter’s letter to Gwen of 14^th April 1965 drawing her attention to the fact that, by contrast with her siblings, she was not to receive a share of the equity of the Property, in the share out then being proposed by Anthony.

It was John’s evidence for the Claimants that his understanding was that the beneficial class did not include Henry because he was living in China at the time of the purchase and was wealthy as a result of his winnings at the races, yet Henry is shown in Anthony’s letter of 15^th May as being a proposed recipient of the proceeds of sale.

As the documents surrounding subsequent attempts to sell the Property, which I have set out above, show, the idea that the surviving Siblings might receive equal shares of the proceeds of sale of the Property when sold recurs in the correspondence resulting from the attempts to sell the Property following that of May 1961. However, significantly, in 1969 a draft Declaration of Trust for Anthony to enter into (which he did not) came into existence and he executed the second codicil to his will. Both these documents are inconsistent with the existence of a trust as contended for by the Claimants. The draft Declaration of Trust, if entered into by Anthony, would have declared a trust from the date of its execution on the basis that Anthony was then entitled to the whole of the beneficial interest in the Property. The second codicil, which he did execute, is entirely inconsistent with such a trust. By 1969 Henry was dead but it is of note that the draft Declaration of Trust omits Gwen as a potential beneficiary but she is included, for the first time, in the codicil.

In my judgment the correspondence of May 1961, and the subsequent correspondence and documents coming into existence during subsequent attempts to sell the Property, are not to be treated as evidence of a common intention between Anthony and the Siblings in 1930 that he should acquire the Property upon any sort of trust for himself and his brothers and sisters but excluding John and Mary. It seems to me much more likely that Anthony, at all material times, regarded himself as the legal and beneficial owner of the Property the proceeds of sale of which he intended to share out amongst his relations either by inter vivos gift or bequest. Until the arrival of Mrs Torto on the scene, he wished to benefit those of his brothers and sisters who were least well endowed and so his choice of those that would get a share varied from time to time and he communicated his intentions to the potential recipients to obtain their approval.