Suggitt v Suggitt & Anor

There are before the court two claims relating to the estate of a Mr Frank Edward Suggitt (whom I shall refer to as “Frank”) who died on 25 October 2009:-

Although I heard all the evidence relating to the two claims at one sitting, the parties agreed to defer submissions in respect of the family provision claim until after the outcome of the primary action, the proprietary estoppel claim. This judgment accordingly deals with that claim.

The defendants are the executors of Frank’s proven will dated 26 March 1997 under which he left his estate to his daughter, Caroline, the first defendant (“Caroline”). The second defendant is Frank’s accountant, Mr David Robinson (“Mr Robinson”).

Frank was born on 14 May 1944. He was the son of Thomas Suggitt (“Thomas”) and Clara Suggitt (“Clara”). Thomas died on 20 January 1987. Clara is still alive, though now elderly and infirm and in a residential care home.

Frank came from a long line of farmers in Yorkshire. Frank’s family consisted of Suggitts (his father) and Peacocks (his mother). Clara (née Peacock) had six siblings: John, Hilda, Elizabeth, Margaret, Ada and Annie, though only John, Hilda and Elizabeth were alive during John’s lifetime. The Peacock side of the family seems to have been wealthier than the Suggitt side and contributed most of the property forming Frank’s estate at his death.

Frank married his wife Penelope Ann (now Abbey) (“Penny”) on 3 January 1970. They had four children, Heather, born on 7 February 1971 (now Mrs Heather Elizabeth Willis (“Heather”)), Caroline Ann Suggitt (“Caroline”), born on 31 October 1974, Rachael Margaret (now Mrs Rachael Taylor (“Rachael”)), born on 15 March 1977, and John born on 4 September 1980. John was thus the youngest and only boy. Frank and Penny divorced in November 1990. Penny subsequently remarried and is now divorced a second time.

Either by gift or purchase the extended family had, by the time of Frank’s marriage, acquired three farms near Wenby, Yorkshire: Witherholme Hall Farm (acquired by Frank’s grandfather, John Peacock, in 1915)), Cornborough Hall Farm (also acquired by Frank’s grandfather, John Peacock, in 1926) and Wellfield Farm (acquired by Frank’s parents in 1955). A bungalow, Penank (a combination of the names of Frank and Penny) was built on Wellfield farm for Frank and Penny on the occasion of their marriage. Planning permission was secured on the basis that the house was restricted (and still is) to an agricultural occupancy requirement.

By the time of Frank’s death Cornborough Hall farmhouse (but not the land associated with it) had been sold but he was, in the broadest sense (as will be seen) the farming owner of all three farms. At his death, these holdings consisted of some 400 odd acres of land devoted mainly to arable or potato farming and a small section (some 30 acres, more or less) farmed by John in the form of poultry farming, breeding of rabbits and guinea pigs and livery. The rest was, and still is, farmed under farm sharing arrangements entered into by Frank with the Coning brothers. The whole was valued for probate purposes at just over £4m net.

John was sent away to boarding school from about 1988 to 1997. When his parents separated and eventually divorced he split his time between each, helping his father on the farm at weekends or holidays as much as a boy could be expected to. He was encouraged to look after his own small flock of sheep. As a young child, like his sisters, he had been allowed to tend lambs. He helped at harvest time.

In the mid 1990s Frank first became seriously ill with pancreatitis. He entered into an arrangement with a Mr Peter Teasdale (from whom I did not hear evidence) whereby he seems to have had some kind of farm sharing arrangement with Frank and then later farmed about 30 or so acres of his land for potatoes. John helped at weekends.

In March 1997 Frank made his will after having become ill. This will was made in a period (between about August 1996 and April 1997) when the entire wider family seems to have been making their wills. Frank’s father, Thomas, had died in January 1987. His uncle, John Peacock, and his aunts Elizabeth and Hilda Peacock, also made their wills in this period. John benefitted with his siblings under each of these wills (save for his father’s 1997 will, as to which see below). Elizabeth Peacock died in March 1997, John Peacock in November 1998 and Hilda in December 2003.

By the time he left school in July 1997, John was living at Penank with his father and Caroline who had by then graduated from Leeds University. John worked for his father or for the Teasdales on Frank’s land (for no wage) but occasionally for the Teasdales on other land (for which he was paid). He had his own small flock of sheep on 50 acres allocated to him rent free by his father. His food, board and lodging were all met by Frank.

Between 1998 and 1999 John attended Bishop Burton Agricultural College to learn farming skills. There he met and formed a relationship with Gemma. She became pregnant and had a son, William, born on 9 September 1999 though by this time the couple had separated. They got back together again late in 2005 and resumed their relationship. Their second son, Alfie, was born on 29 December 2006. They have a third son, Edward, who was born on 1 January 2010, after Frank’s death.

John was not a diligent student. He did not attend the entire course but did enough, it seems, to satisfy himself he had learned the necessary skills to run his father’s farm which is how he viewed it. Frank paid all the fees.

By the time he left the college (after attending the following year) in 1999, John was helping his father with the harvest and sale of grain. In his evidence John was apt to grumble and complain that his father gave him nothing: no wage, no share, nothing. He seemed entirely to overlook the fact that his father paid everything for him: his food, board, lodging, college fees, living expenses and gave him a share of the grain harvest (the sweepings or left overs was how John characterised or implied it but it amounted to about £4,700 odd paid to John) and of the sheep sales (from which he received about £5,000). In addition John was permitted to set up and run his own herd of beef cattle on the farm and benefitted from the profits (some £12,000 over 2001/2002). The total John benefitted is a matter of some dispute and he himself was slow in forthcoming with the figures or any kind of accounts.

From about November 1999 onwards the Teasdales met increasing financial difficulties. Frank by this time found it increasingly difficult to manage the farm yet did not deem his son John fit to run it. He rebuffed John’s attempts to make suggestions by telling him he could do what he liked with the farm when it was his. Frank instead asked his agent Mr Mudd to invite tenders for rent of the farmland, including one from John.

John put in a verbal bid but it was not well thought out or planned. He was not successful in his bid and instead his father entered into a farm sharing arrangement on 7 June 2000 with the Conings family permitting them to farm the entire holding, bar about the 50 or so acres John was permitted to farm.

In September 2001 John received an inheritance of some £38,000 under the will trust of his aunt, Elizabeth. He also started to sell off his beef cattle.

Sometime in 2002 after the last of the cattle had been sold off John left Penank. Caroline too had left in the meantime for Holland to live with her then partner. John indicated that he was resentful at not being paid by his father. He gave up the 50 or so acres he had rent free off his father. He went to live with friends in York. Despite his resentment he again seems to have overlooked the fact that all his food and living expenses had been met by his father who had given him a roof over his head. He had also been free to go and work in a pub in the evenings. He had inherited some £38,000 which he managed to spend in the 9 months he remained in York.

Faced with John’s departure, Frank was left with the decision of what to do with the land. In April 2002 he extended the farm sharing agreement he had made with the Conings for 10 years and included the 50 or so acres surrendered by John when he left (but he also included a provision permitting him to claw back 10% of the land per annum if need be).

By July 2002 Caroline (now with her son, Thomas) returned to Penank and lived with Frank. The following year, after spending 9 months in York, John’s money had run out so he returned to Penank but Caroline did not want him to stay in the same house. John went to live at Wellfield Farm with Clara where he stayed as before, in the sense that all his immediate living expenses were met. He went back to work in the pub in the evenings to supplement his income since apart from the economic support of meeting his living expenses (food, roof over head and so on), John was not being paid by his father. The farm was by now being managed by the Conings so John helped out with the refurbishment of Witherholme which had become vacant after the death of Hilda Peacock, stripping wallpaper, gardening, and doing preparatory works.

Between 2004 and 2006 John continued to work occasionally at the restoration of Witherholme as above. He also continued to work at the pub and at a sports shop as a bicycle technician and at one time for a very short period for a landscaping company. He and Gemma became reconciled and Gemma moved into Wellfield. Frank, who spent his nights at Penank, resumed his old habits of taking his meals with his mother and now with John and Gemma and their son at Wellfield. John also received some £34,000 from his maternal grandmother’s estate.

In late 2006 John persuaded his father to recoup about 30 acres from the Conings at Wellfield to enable him to set up a small poultry and livery business (Gemma it seems was keen on horses) and to sell rabbit hutches and breed rabbits and guinea pigs. John refurbished some old stables and build some more. To assist him Frank, as trustee of a family discretionary trust arranged for John to receive £600 per month which continued, so far as I can tell, until after Frank’s death. In May 2007 Frank declined an offer from his solicitor to review and revise the terms of his 1997 will.

In March 2008 Clara went into residential care.

At the date of Frank’s death Caroline was living with her son, Thomas, born on 20 July 2001, at Penank where, apart from interludes at University and in Holland between 2001 and 2002, she had lived almost all her life. John and Gemma live with their children at Wellfield. The distance between the two houses is a few hundred yards at the most. The emotional distance between John on the one hand and Caroline on the other is however enormous. Frank, as had been his custom for many years during his lifetime after his divorce, used to live at Penank and eat his meals (often, as was described in evidence, in the form of a second meal) with his mother, Clara, at Wellfield until she went into the residential home in about March 2008. Even after that Frank’s daily habit of living at one place and taking his meals at the other continued to his death.

After Frank’s death John received further substantial funds though the details are not very clear. In January 2010 he received about £50,000 from the estate of one of his great aunts or uncle, a further £20,000 from John Peacock’s estate in February 2010, £21,000 in May and just under £17,000 in September 2010. In all, excluding the £600 per month, John has received since September 2001 nearly £180,000 from family trusts and estates. In addition his sisters have each provided him with substantial sums to finance the litigation.

Probate of Frank’s professionally drawn will dated 26 March 1997 was granted to two of his named executors, Caroline and his accountant, Mr Robinson on 13 September 2010. Under the terms of this will Frank left his entire estate to Caroline but also provided:

“AND I EXPRESS THE WISH (without imposing a trust) that if at any time my son John Michael Suggitt shall in the absolute opinion of Caroline show himself capable of working on and managing my farmland that she shall transfer my farmland to him”.

Frank’s £4m estate comprises:

The parties to the proprietary estoppel claim are John (Claimant), and Caroline and Mr Robinson (Defendants). The parties to the family provision claim are John, Gemma, William and Alfie (the last two acting by Gemma as their litigation friend) (Claimants) and Caroline and Mr Robinson, the executors (Defendants).

John’s central and primary case is that throughout his life his father had repeatedly promised the farm to him and repeatedly indicated to him and to others it would be his on his death. Hence the basis of this claim lies in proprietary estoppel. In this respect:

Subject to the outcome of the primary proprietary estoppel claim, John, Gemma and their two eldest sons claim as the child of the deceased (John) and dependants (Gemma, William and Alfie) for provision out of Frank’s estate. As noted, submissions in respect of this claim were deferred pending the outcome of the primary claim.

Caroline does not dispute that Frank intended John to inherit the farmland but only when and if he demonstrated or proved his readiness and capability to farm the land. In short, she says, his will was a true and fair indication of his wishes. She also points out that Frank had also promised her that she would be a rich woman on his death and that he had indicated shortly before he died that John would not inherit Wellfield.

I have set out above the terms of Frank’s will, and my findings as to the family dynamics and background in broad detail on the basis of the totality of the evidence that I saw and heard but I ought to say something about that evidence.

This was from a variety of sources, documentary (as set out in the trial bundles) and witnesses.

For the claimants in both actions I heard oral evidence from John, Penny, Heather, Rachael, Gemma and her mother, Mrs Cheryl King. I was also provided with a statement from Clara who could not attend due to infirmity which both sides accepted I could read and attach such weight as was appropriate to her statements. I also heard evidence from two old friends of Frank, Mr Paul Daniel and Mr Jack Binks whom I found particularly helpful.

For the defendants I heard evidence from Caroline, Mr Robinson, Mr Richard Coning (with whom Frank had the farm sharing arrangement) and his land agent, Mr Tim Mudd.

All these witnesses also provided witness statements. I accept, subject to the comments below, that they were all trying to do their honest best to assist the court.

However, there are certain matters that I particularly bore in mind in assessing the oral evidence.

Before turning to the resolution of this case, it may be helpful to summarise the applicable legal principles in the field of proprietary estoppel, as to which there was no disagreement.

The applicable principles (and authorities) were recently reviewed by the House of Lords in Thorner v Major [2009] 1 WLR 776 (a claim also to a farm based on assurances made by the deceased to the claimant, and, as will be seen a much stronger case than this).

The principles may be summarised as follows. To establish a claim based on proprietary estoppel the claimant must prove a promise, representation or assurance made to him or her, reliance on that promise by the claimant and detriment in consequence of his/her reasonable reliance.

Put more specifically the claimant must prove:

As the majority speeches in Thorner (and other cases) emphasise: ultimately the question becomes one viewed as at the moment of crystallisation, namely, whether, looked at in the round, in the circumstances that have happened, it would be unconscionable for the promise not to be kept even if there was not initially a legally binding contract.

If and once the equity arises (i.e. if the elements of proprietary estoppel are established) the task of the court is to do justice – to do what is necessary to avoid an unconscionable result. Here it may be relevant to consider again the context as a whole and consider the proportionality of the claimant’s claim and expectations. The court has a wide judgmental discretion: see Jennings v Rice [2003] 1 P & CR 100 CA.

John’s own evidence as to the promises or assurances made by his father is opaque to say the least. His claim is that his father promised him it would “all” be his one day, His evidence stated that the promise was that the “the farm” or “farms” would be his, by which he meant, he says in paragraph 26 of his witness statement “all 3 of these areas [i.e. Cornborough Hall, Witherholme Hall, Wellfied Farm and Penank], including the 4 properties, machinery, the goodwill attached to the business and any cash at the bank relating to the farming business.”

The evidence that John does provide as to the promises allegedly made to him is not strong and is repeatedly conflicting with statements made by Frank to others, actions (his will and refusal to change it) and apparent regard of John as lazy. These actions however are by their very nature full of ambiguities and conjectures and the authorities clearly show that all due allowance has to be made for context. It was also not always readily apparent whether what Frank was expressing was his intentions or wishes as opposed to a statement of something he definitely would do. However, what is important at the end of the day is not what he said to others but what he said to John.

Amongst the statements John makes in support of his claim include those made by Frank about the time Frank entered into the arrangement with the Teasdales. John says he was told by his father that “no farmer pays their son, as it will all be theirs one day” (paras. 42, 65). He was sent to agricultural college so that he could learn the skills “to run the farms in the future” (para. 45). When his ideas for running the farm were rejected, he was told by his father “You can do what you want when the farm is yours” (paras. 58, 61).

Having regard to the evidence as a whole I have nevertheless little doubt that Frank intended and wanted John to have the farmland and that this is what he meant by “the farm” and “all”. He was clearly (as the evidence established) overjoyed at the birth of a son after so many daughters and looked for a son to inherit the farm and carry it on after him. But he also had daughters to consider. Also whilst at the same time being proud and joyful in his son, he also became disappointed in him: he told him he was lazy and in my judgment John did not turn out as his father had hoped.

In my judgment the 1997 will, which he much later refused to alter, was and remained overall a fair reflection of his own wishes. He knew Caroline was on and reflected one side of his divided family and her siblings (and mother and John) were on the other. He also knew Caroline was clever and quite shrewd (he did not, for example, want her during his lifetime to find out too much about his affairs!). Even Penny in her witness statement evidence indicated that Frank wanted John to complete his college course and gain experience before passing on the farm (paragraph 35) and in her oral evidence, before she realised what she had said, but entirely consistently told me that Frank had told her that if John proves himself, he would get the farm.

In my judgment this is exactly what Frank wanted and he was repeatedly disappointed by John. He wanted John to succeed him; he also wanted him to be a good farmer in the family tradition. He brought him up in a tough way and in a tough world, but John could not cope. John wanted more and wanted it now. Frank was disappointed in John’s bid in 2000 because it was not thought through. So he let the Conings have the farm sharing arrangement. He was disappointed when John gave it all up and left for York. He even let the Conings have the acreage he had kept back for John.

Yet like all (or most) fathers he never entirely gave up on John. In this respect I entirely agree with the submission to this effect by Miss Reed QC for John. When John returned he got back the 30 or so acres from the Conings to allow John to operate his new livery, poultry and rabbit business. This was done by persuasion in the form of the top and bottom fields near to Wellfield rather than by formally exercising any right of claw back under the farm sharing agreement. Frank was a Yorkshire farmer, not a lawyer.

Frank also gave him food and shelter; he took in Gemma and delighted in their children, all at his expense. He hoped his son would come into partnership with him and introduced him to his accountant, Mr Robinson, to try and set up the arrangements (see John’s witness statement, para. 118). John did not seem to realise what it was his father was trying to do and treated it all with suspicion as a scam of some kind by Mr Robinson which he firmly rejected. But in my judgment this was all part and parcel of Frank wanting John gradually to take over the reins much as he himself had done as a younger man and it was this he repeatedly indicated to John and to others. John foolishly rejected this.

But what Frank wanted, and what he led John to believe is not necessarily the same thing. This is not a Thorner v Major case. The facts here are not nearly as clear cut as they were there in that case but in my judgment looking at matters in the round on the totality of the evidence, and I so find, it is more likely than not that Frank did make some kind of repeated promise or assurance to John that led him reasonably to expect that someday at least the farmland (and by implication if not expressly somewhere to live) would definitely be his following his, Frank’s, death.

I accept that every indication is that Frank started his son off with a limited farming area or acreage and limited duties in the hope and expectation he would learn and profit from the experience. He also indicated as such to his agent, Mr Mudd. He attempted to bring his son into partnership with the assistance of his accountant Mr Robinson. Even after John’s return from York, Frank continued the same limited approach. He got the 30 or so acres back from the Conings, but not in any formal way; more by negotiation. The indications, assurances or promises too continued both to John and to other members of the family and friends.

Thus while I can well understand why Caroline has advanced a case (based, as she fairly accepted, largely on the will) that the promise made by Frank was conditional, I do not so find. John was a disappointment to his father: he had not made as much of the 50 acres as he had no doubt hoped between 1997-2002, he had not done as well at Agricultural College as he hoped, he had effectively run away to York and spent his inheritance, but his promises and assurances to his son, as a loving father, were unconditional.

Equally, there are quite late indications of ambivalence by Frank. Caroline gave evidence of a row in 2008 when Frank, John and Caroline had a conversation about Wellfield, Frank declaring that John would not inherit Wellfield (to which I referred above). When challenged by John, Frank said all he’d ever wanted was John to have the farm. I regard this evidence as entirely consistent with John’s promises as regards the farm land; he did not necessarily make any promises about the farm houses: there were after all, three possibilities as to houses: Wellfield, Penank, and Witherholme and there was also Caroline to consider as well as Clara. Equally I have no doubt Frank did not want John to be homeless.

Again I regard John’s case and evidence in support as weak. But enough is enough. I accept John worked from time to time for no direct wage, I accept he returned to the farm after his break at York (when the money ran out) but this is a man who into adulthood was being fed, watered, and housed by his father free of charge; he received substantial sums of money from family trusts (most it is fair to point out after Frank’s death), he received the proceeds from some of the sales of sheep, grain and cattle (above), and supplemented his income by working in the sports shop and pub. John constantly tried to portray himself as someone who had been doing a great deal for nothing for many years. I do not accept that. I do accept he was paid no wage, but that was how it was done and expected to be done in the family. It was the quid pro quo (which is why I accept that there was some reliance). John did not work for nothing, but he did not work for as much as he might have expected had he been an agricultural worker. On the other hand as an agricultural worker he would have had his own living expenses.

Did John therefore rely on the promises or assurances? The answer in my judgment is yes. The necessary degree of linkage is in my judgment established. John worked on the farm in the expectation and reliance that the farmlands would be his one day.

Reliance and detriment are often the same or overlapping concepts in this area. In my judgment it can be fairly said that John acted in some measure to his detriment or changed his position in reliance on the promises made by his father and in the expectation he would inherit even after his break with his father when he left for York. Both before and after his 9 months in York he at least did some work on the farm, he agreed to go to college to learn necessary skills, he helped with the sheep and grain and built up a beef herd. But all in all it was nothing like the sort of work done in Thorner v Major. John’s problem is he wants the maximum for the minimum. The work he did was barely, vaguely and weakly particularised: after his return from York he worked on Witherholme and the outbuildings - this seems to have been some stripping of wallpaper, clearing rubbish, gutters and work in the garden when he was supposed to be off work sick. He mended fences (almost certainly those round his own 50 acres in the period 1997-2002), cut grass and maintained some machinery. He developed, with his father’s encouragement, the livery and poultry and other related activities on the acreage recovered by his father from the Conings, Gemma moved in and lived with him at Wellfield on which John also did work. The profits made went back in one form or another into the business. On the other hand, as Miss Toman’s helpful analysis showed, John had also benefitted much more than he attempted to portray, from working for the Teasdale’s, from grain sales, from sheep sales and from beef cattle sales. Nevertheless, save for the break in York, it is, in my judgment, fair to say, as does Miss Reed, that John positioned his whole life on the basis of the assurances given to him and reasonably believed by him.

Standing back and looking then at the situation as at the date of Frank’s death (the point when the alleged promise was broken) and at matters in the round, I am satisfied that it would be unconscionable to deprive John of his reasonable expectations based on his father’s repeated assurances and indications that the farm or farmland would be his when he was gone. I am not however at all satisfied he promised him everything as John suggests. Frank had promised Caroline she would be rich and he knew she had lived all her life with him after his divorce save for the years she was in Holland and at University. He knew she too would be and was dependent to a large extent on him.

In my judgment what Frank had in mind was much as his actions dictated: his will had specified the farm land (not the houses), but he also must have known John needed somewhere to live. In 1997 that was Penank, a bungalow tied by its agricultural restriction to the land so at least in 1997 he might reasonably have contemplated John continuing to live there. Later, with adulthood and a new partner, Gemma and children that clearly became no longer possible. But the broad thrust of the promise was reasonably clear: the farmland and (by implication) somewhere to live.

Although I formed no greatly favourable impression of John as must be apparent, nevertheless I must consider carefully how the equity in this case ought to be satisfied. In my judgment therefore, equity ought to be satisfied bearing in mind all the circumstances in the following manner which I consider more than meets his reasonable expectations.

In my judgment John should have the farm land (subject to the arrangements as regards the Conings) and a house in which to live. I am inclined to think this should be Wellfield where he and his family now live. I do not consider he should be entitled to the money in the business accounts or other assets beyond what might be regarded as incidental farm machinery but should also include the farm outbuildings incidental to the farming activities and insofar as they can be regarded as separate structures from farm houses (the intent being the houses can be separated from the outbuildings).

John is not in fact succeeding to any farming business; that finished sometime ago. The business is effectively being run by the Conings. I consider too that this part of the estate should therefore be subject to the agreement with the Conings and bear the proportion of inheritance tax (IHT) that falls on it. This in my judgment both reflects overall what Frank intended and indicated by his assurances as well as being proportionate in all the circumstances. In so far as Caroline has in the meantime benefitted from any intermediate income from the farm in my judgment she should be entitled to retain it and the right to it until the order on this judgment is perfected or the agreement with the Conings expires after the 10 year period granted in 2002, whichever is the later.

My thinking behind the latter is as follows:

That would leave Caroline with the remainder of the estate and the income in the meantime as indicated. Where she chooses to live, whether at Penank so near to her brother, or at Witherholme or elsewhere, I leave to her and her siblings to resolve. How they deal with the agricultural restriction is something for them to resolve too. This portion of the estate too will bear its own share of IHT. John urged me to give Caroline a mere life interest or life occupancy. I do not consider this fair or just to Caroline. In my judgment there should, so far as possible, be a clear division between her and John. One of the unfortunate features of this case has been the inability of the parties to compromise an obviously compromisable case. Whether they now do so in light of this judgment is a matter for them. Thus Caroline’s position ought equally to be as clear and strong as possible and not fettered by her being tied to her brother if she does not wish it.

If necessary and subject to any agreement between the parties I will hear further argument as to the actual form of the order and consequences in due course.