Kloosman v Aylen & Ors

This application concerns the will of Mr Richard Frost (‘Mr Frost’) who died on 4 March 2008. The executor of the will is the Claimant, Mr Kloosman, a solicitor.

Mr Frost was bom on 11 May 1923 and so was 84 years old when he died. The will was signed on 26 September 2007. At that time Mr Frost owned a house at 212 Lee High Road, Lewisham, London SE13. He was not then living at that house, however, because he had moved in April 2007 to live with his daughter Linda Aylen and her family at Leigh-on-Sea in Essex.

In his will Mr Frost left his residuary estate to his trustees upon trust as to one third for each of his two daughters Linda Aylen and Susan Frost, one sixth to his son Andrew Frost and one twelfth each to Andrew Frost’s two children Robert and Tracey Frost. Those beneficiaries are the Defendants in this action.

Shortly after he made the will Mr Frost sold the Lewisham house realising net proceeds of sale of £353,480. On 2 November 2007 Mr Frost made cash gifts of £100,000 to each of Linda Aylen and Susan Frost. The estate left at his death comprised almost entirely the remaining proceeds of sale of the house and amounted to £143,103 gross and £137,078 net. Thus the cash gifts were not far short of what would have been the value of the one third share of the residue had the gifts not been made (in fact that share would have been £112,359).

The question arises whether those gifts should be brought into the estate and in effect treated as a large part of the daughters’ share of the estate.

The rules which I must apply are first the ‘presumption against double portions’ and secondly the ‘doctrine of ademption’. The most recent leading case on this topic is In re Cameron deed. [1999] Ch 386, [1999] 2 All ER 924. That case explains that the presumption against double portions arises because it is assumed that a parent only intends to fulfil his or her moral obligation to give a portion to each of his or her children on a single occasion. In that case Lindsay J. stated (at paragraph 58) that a ‘portion’ for this purpose is loosely defined as ‘a gift intended to set up a child in life or to make substantial provision for him or her’. Thus where a parent leaves a substantial share of his estate in his will to his children and then gives a large inter vivos gift to one of those children, and where both those gifts have the character of a portion, it is assumed, subject to evidence establishing the contrary, that the gift is supposed to be a substitute for the bequest. Where the presumption prevails, the doctrine of ademption applies on the distribution of the estate so that the inter vivos gift is treated as counting towards the donee’s legacy or share of the estate.

The presumption against double portions will not apply, therefore, if the inter vivos gift does not have the character of a portion. Where both the bequest in the will and the inter vivos gift are portions, the presumption will arise but can be rebutted if there is evidence that the testator did in fact intend to give two portions to the donee.

In re Cameron deed also makes clear that a gift can be regarded as a ‘portion’ for the purposes of the presumption when it is part of the residue of an estate even though by the time of the testator’s death the child in question does not need the money to establish him or herself in life.

At the hearing before me, Mr Kloosman and Andrew Frost were represented by counsel. Stephen Aylen (Linda’s husband) had provided a lengthy witness statement on behalf of his wife and her sister Susan and he attended the hearing where he was cross-examined by counsel for Andrew Frost. Mr Aylen also made short closing submissions on behalf of Mrs Aylen and Susan Frost. Robert and Tracey Frost were not represented and did not appear.

Neither Linda Aylen nor Susan Frost provided witness statements and they did not attend the hearing. This was unfortunate since they were the people who one might expect would give the best evidence about their father’s intentions at the time he made the gifts to them. Mr Aylen explained that they had not lodged witness statements because they had been advised, though he could not remember precisely by whom, that they should not tender witness statements if they intended to come to the hearing. They had had every intention of coming to the hearing but they only found out about the date of the hearing the afternoon beforehand. Mrs Aylen works as a palliative care nurse and could not get time off work at such short notice and Ms Frost had to accompany her husband for some difficult medical treatment on the day when the hearing took place. Mr Aylen told me that they were content that the hearing go ahead in their absence since they felt that the matter had already gone on long enough. On the basis of what Mr Aylen told me, I do not consider it is appropriate to draw any inferences from the lack of written or oral evidence from Mrs Aylen and Susan Frost.

There were a number of other witnesses who provided statements about various incidents and aspects of the relationships within the Frost family. One of those, Mr Walker, attended to be cross examined. His evidence, though I am sure truthful, related to matters occurring after the gifts had been made and so was not germane to the issues I have to decide.

Mr Andrew Frost was estranged from his father for many years up to and including the time of Richard Frost’s death. Neither he nor his children (who are now in their mid 20s) attended the hearing and though Andrew had lodged two witness statements, those focused on issues that do not, in the event, need to be decided.

The main relevant evidence therefore came from Mr Aylen. I found him to be an entirely credible witness and I accept his evidence as to the course of events that preceded Mr Richard Frost’s death. The following account is largely therefore taken from his witness statement, as amplified in oral evidence.

Mr Richard Frost worked variously as a tool maker and then as a gardener for the local council in Lewisham. He bought the Lewisham house (which had at that time been divided into flats) in two stages in the 1950s for about £1000 or £2000. It is a Victorian town house and Mr Frost lived there, as I have said, until April 2007. In early 2007 Mr Frost was diagnosed with bowel cancer. Initially he remained reasonably well but it became clear that he could not continue to live by himself. Mr Frost never had any money and very few possessions. The Lewisham house was heated with paraffin stoves and by the time he moved out in April 2007, the condition of the house had become extremely squalid. Power supplies had been disconnected because the bills had not been paid. His daughter Susan who lived nearby had been helping to take care of him when he lived in Lewisham, managing his daily household and financial affairs, shopping for him and supplementing his state pension. She used to take him to his hospital appointments and had to take time off work to do so. With her commitments to her own family, however, this became too much for her and in April 2007 she rang her sister and Mr Aylen and asked them to take over.

Shortly after, Mr Aylen collected Mr Frost from Lewisham to bring him to live in Southend with him and his wife. Mr Frost’s possessions at that time, apart from the house, comprised £3.41 in cash and £247 worth of shares that he had acquired many years previously as a result of a building society flotation. He had no furniture or linens of use and very few clothes. He did not operate a bank account and had no savings.

At the time Mr Frost went to live with Mr and Mrs Aylen, they were in the course of renovating their house. Some of this renovation was rapidly completed in order to accommodate Mr Frost. A bathroom was constructed and a bed purchased and some changes made to the proposed renovation to take account of Mr Frost’s taste. At that stage Mr Frost was still fairly fit although, of course already well into his 80s. He could still walk and was able to do a little light work on the garden at the Aylens’ house. The Lewisham house was not sold immediately after Mr Frost moved out in April 2007 because it was thought possible that he might survive long enough to be able to live there again if the house could be suitably adapted. In the meantime, Mr Aylen would visit the empty Lewisham house several times a week to ensure that it was secure.

The diagnosis of bowel cancer prompted Mr Frost to make a will. At the time the will was made, Mr Aylen said, the medical advice Mr Frost had received was that he could expect to live for another five to ten years. Solicitors were instructed to draw up the will and they attended at the signing of the will which took place at the Aylens’ home. Mr Frost made the will intending that whatever property he had left at the end of his life would be divided in the manner set out in the will.

At that time he made his will, Mr Frost did not realise that the Lewisham house he owned was so valuable. Also at that time, according to Mr Aylen, there was no fixed intention to sell it. In fact that decision was taken shortly afterwards and the Lewisham house sold very quickly. Mrs Aylen opened a bank account in her father’s name into which the proceeds of sale of the house were paid. The gifts of £100,000 to her and to Susan were made by Mr Frost from that bank account shortly after the sale was completed. Once the Lewisham house was sold there were various matters to be resolved. Mr Frost’s outstanding debts of various amounts - the utilities at the Lewisham house, the newsagent and so forth - were paid by the Aylens or by Susan.

Sadly, on Boxing Day 2007, Mr Frost suddenly became very ill and was taken into hospital. From that time on his health deteriorated rapidly and severely. It was apparent that on discharge from hospital, he was not going to be able to walk. The Aylens undertook substantial works to adjust their home to accommodate him, in particular work to the floors of their home so that a hoist could be installed as well as modifications to the bathroom and other floorings and furnishings. When Mr Frost came back to their home from hospital in January 2008 he was very ill indeed. Initially carers were brought into the home from an agency to look after Mr Frost but Mrs Aylen who, as I have said, is a qualified palliative care nurse, was not happy with the standard of care that was being provided for her father. Mr Frost asked Mrs Aylen to look after him herself and she gave up her full time employment to provide 24 hour care during the last very difficult few weeks of Mr Frost’s life.

There were two other important parts of Mr Aylen’s evidence. The first concerned the discussions that took place when the Lewisham house was sold and the gifts were given to Susan and Linda. Mr Aylen said that Mr Frost was very surprised at the amount generated by the sale of the house - this was a sum of money that Mr Frost, who had lived extremely frugally all his life, could not really comprehend. Mr Frost said that he wanted to give £100,000 to Susan and Linda to recompense them for the expenses that they had incurred in helping him and for the work and inconvenience involved in taking care of him. As far as the rest of the money was concerned, Mr Frost said he would give a much smaller gift to his son Andrew, if Andrew would come to visit him and be reconciled. He also wanted to take the whole family on a Mediterranean cruise and intended to give a small gift to Mr Aylen in return for his work in organising the sale of the Lewisham house. The remainder of the money was intended to be kept in the bank in Mr Frost’s name to be used to pay for his care if at some time in the future the Aylens were no longer able to look after him. Unfortunately Mr Frost did not live long enough to go on the cruise and he did not in fact make a gift to Mr Aylen.

Mr Aylen said, not surprisingly, there were considerable additional expenses for the Aylen household on a daily basis once Mr Frost came to live with them. There were the sums paid out in modifying their home at first to provide him with a room and bathroom and then to accommodate the medical equipment he needed. There were considerable on-going costs associated with his incontinence problems and there were the frequent little treats that he asked the Aylens to provide for him or to give to other members of the family - although each of these was small in itself, they added up to a significant amount. Mr Aylen also had to take time off work to help take Mr Frost to medical appointments with his wife.

Mr Aylen was challenged by Mr Hodson as to why he had not produced to the court receipts or invoices evidencing at least the large sums expended. I do not accept that the absence of receipts casts doubt on the truthfulness of Mr Aylen’s account. It was not clear from Andrew Frost’s witness statements that he disputed the fact of the expenditure. Further, these were payments that Mr Aylen could not have realised at the time that he might be required to prove. I do not consider that it is suspicious that receipts or invoices cannot now, several years later, be produced.

What does this evidence say about the nature and the purpose of the gifts of £100,000 to Mrs Aylen and Susan Frost? Did these payments amount to the gift of a portion for them from their father?

Mr Hodson, appearing for Andrew Frost, emphasised the size of the gifts and the fact that they each amounted to about one third of the eventual estate. Mr Aylen said, and I accept, that Mr Frost did not fix on the figure of £100,000 to give, to Susan and Linda because it was roughly a third of the proceeds of sale of the house. The amount was simply a large round sum of money which Mr Frost suddenly found himself in a position to give them.

Mr Hodson also stressed the chronology of the relationships between the will, the gifts and the daughters’ expenditure. Susan Frost’s payment of Mr Frost’s bills, her help with his shopping when he was living in Lewisham and the Aylens’ payment for the initial work to adapt their home had already been incurred at the time Mr Frost made his will at the end of September 2007. If Mr Frost had really wanted to recompense them for things that had happened in the past, Mr Hodson submitted, Mr Frost could have done so by leaving them specific legacies in his will or by giving them a larger share of the residue than he left to Andrew’s family. Instead he chose to divide his estate equally between his three children and their families. Conversely the expenditure on the modifications to the Aylen home made in January and February 2008 when Mr Frost came out of hospital and the loss of income resulting from Mrs Aylen giving up work to care for him postdate the making of the gifts in November 2007. The gifts, Mr Hodson submitted, cannot be regarded as recompense for those things because if Mr Frost had died between the time the Lewisham house was sold and the date of the two gifts to his daughters, the proceeds of sale of the house would have been divided equally among his children without any special provision for the daughters’ recompense.

Such an approach does not, in my judgment, accord with the reality of Mr Frost’s position. Until the Lewisham house was sold Mr Frost had no money and was dependent on his daughters to manage his financial and household affairs. He had no expectation that his estate would amount to a considerable sum both because he had no idea of the value of the house and because he did not expect to die so soon after making his will. He could not have known that £100,000 would in fact turn out to be about one third of the value of his estate at his death. It is not realistic to expect someone of his background to contemplate recompensing his daughters for their money and time by adjusting the provisions of his will.

At the time the house was sold and the gifts made Mr Frost was already 84 years old and he knew he had bowel cancer. He was already living in his daughter’s house and he must have realised that, having sold the Lewisham house, he was likely to live with the Aylens until he died. He also knew that Mrs Aylen was a nurse and so was likely to take on the burden of caring for him when he asked her to. He would also expect Susan to continue to play her part in taking care of him.

It is clear to me on these facts that the gifts of £100,000 were not intended as ‘portions’ to the daughters or as an anticipation of their share of his estate. Rather they were intended in part to repay them for the sums of money they had already spent taking care of him and in part to help them finance the inevitable future costs of his care and housing for what remained of his life. The gifts in fact fulfilled that purpose in that they enabled his daughters to provide for him so that he could live in relative comfort for the short time that was left to him. According to Mr Aylen, some of the £100,000 given to Mrs Aylen was spent trying to trace Andrew Frost at Mr Frost’s request. Some was used to reimburse Mr Aylen because he had paid for his mother-in-law’s funeral some time before hand when Mr Frost had not had the funds to do so himself. Mr Aylen recalled that £10,000 of the £100,000 given to Mrs Aylen was paid to a charity for cancer sufferers at Mr Frost’s request.

In my judgment the presumption against double portions does not arise because the inter vivos gifts in November 2007 to Mrs Aylen and Susan Frost did not have the character of portions.

I therefore order that the estate be distributed by dividing the residue in the manner provided for in the will without taking into account the gifts to Mrs Aylen and Susan Frost.