Hardy v Hardy & Anor

This is a Part 8 claim about the correct construction of the last will dated 17th February 1984 (“the Will”) and of a codicil thereto dated 24th March 2002 (“the Codicil”) of Alfred Hardy (“Alfred”) who died on 18th December 2006, having regard to section 67 of the Adoption and Children Act 2002.

By clause 4 of the Will, Alfred directed his executors and trustees to hold his residuary estate in trust “for such of my children as shall survive me and attain the age of 21 years and if more than one in equal shares absolutely”.

Alfred had three natural children, namely Benjamin, the claimant, and David Hardy (“David”) and Andrew Hardy (“Andrew”), the defendants. They all survived Alfred and have attained the age of 21 years.

However, Benjamin (unlike David and Andrew) was adopted by his natural mother, Thelma, and by Alfred’s brother, Kenwyn.

Section 67(1) and (3) provide that an adopted person is to be treated in law as if born as the child of the adopters, and as not being the child of any other person. Section 67(6) provides that the section applies for the interpretation of enactments or instruments passed or made before as well as after the adoption, and so applies “subject to any contrary indication.”

Thus, Benjamin must be treated as not being one of Alfred’s “children” within the meaning of clause 4 of the Will, subject to any contrary indication.

David is the sole executor and trustee of the Will. He has taken no steps to obtain the court’s guidance regarding the correct interpretation of the Will, despite repeatedly indicating that he intended to do so after prompting by Benjamin. Therefore it fell to Benjamin to bring these proceedings. Apart from the fact that Andrew acknowledged service stating his intention to contest the claim, the defendants have not taken any part at all in these proceedings.

Benjamin contends that there are indications in the Will, in the Codicil, and in certain surrounding circumstances, that Alfred’s intention was to regard Benjamin as one of his children for the purposes of clause 4, contrary to the effect of section 67.

In particular, by clause 1 of the Will, Alfred appointed Andrew and Benjamin, whom he described as “my sons”, as his executors and trustees, and he repeated that description in a recital to the Codicil.

In my view, these descriptions of Benjamin, in the Will and the Codicil, as one of his sons is a very clear indication that Alfred’s intention was to regard Benjamin as his child, and therefore as one of his “children” within the meaning of clause 4 of the Will, contrary to the effect of section 67.

Although the Codicil goes on to appoint David in place of Andrew and Benjamin, and to declare that the Will should be construed as if David had originally been so appointed, I do not think that Alfred thereby intended the Will to be read as if he had not described Andrew and Benjamin as “my sons”. If he had intended this, he would certainly not have described them as such again in the Codicil itself.

I conclude that “my children” in clause 4 of the Will includes Benjamin.

It is not necessary for me to decide whether extrinsic evidence of certain surrounding circumstances is admissible in support of this conclusion, and I shall not do so.

I will therefore declare that on the true construction of the Will and the Codicil Benjamin is to be considered to be one of the children of Alfred and is therefore entitled to a one-third share of the residuary estate.

Benjamin also applies for an order requiring David to provide information about administration of the estate. According to a letter dated 15th April 2011 from David’s solicitors, David as the sole executor and trustee has divided the residuary estate into three equal shares, and as to one share he has not distributed it but instead is holding it until entitlement to it is resolved. But it is not clear how the estate has been administered and invested since 2006. A three-page document called “draft accounts” was provided to Benjamin in March 2012, but this only shows receipts and payments up to January 2009 and does not explain how estate monies have been invested. I therefore propose to make an order requiring David to furnish to the court a full inventory of Alfred’s real and personal estate and full estate accounts showing how the estate has been administered and invested since 2006, including full details of a £12,000 loan to “DH”, and also showing the full amount now available for distribution and Benjamin’s share thereof, the same to be verified by a witness statement containing a statement of truth and signed by David, all to be provided within 4 weeks of the order.

However, I will not, at this stage, make any order requiring David to make a payment into court.

Benjamin also applies for an order that the costs of these proceedings be provided for. It was not clear from the claim form, or from counsel’s skeleton argument, and only became apparent at the hearing, that Benjamin’s application is for his costs to be paid by the defendants, on the grounds that the proceedings have the character of hostile litigation and that the costs are greater because of the defendants’ failures to co-operate: as mentioned above, David failed to take any steps to obtain the court’s guidance despite repeatedly indicating that he intended to do so; he failed on many occasions to respond to solicitors’ letters; he also failed to acknowledge service despite indicating that he would do so and that he intended to contest the claim. And although Andrew acknowledged service stating that he intended to contest the claim, in the event he failed to serve any defence or file any evidence and also failed on numerous occasions to respond to solicitors’ letters.

As matters stand, given that until the hearing it was not clear that Benjamin was applying for his costs to be paid by the defendants, and that the defendants did not appear and were not represented at the hearing, I am not willing to make a costs order against the defendants. If Benjamin wishes such an order to be made, he must make a clear application to that effect, accompanied by written submissions, within 14 days of this judgment being handed down; the defendants may respond in writing within 14 days thereafter.

Subject to such an application being made, I would order that Benjamin’s costs be paid out of the estate, on the standard basis. In this connection, his solicitors throughout were Beviss & Beckingsale, and all work was done under a conditional fee agreement with a 95% success fee. Total costs, inclusive of VAT and disbursements, as shown in an amended statement of costs, amount to £29,630.09. Considering that statement overall and item-by-item, and accepting that the costs are greater because of the defendants’ failure to respond to letters and otherwise co-operate, I consider that the figure for total costs is reasonable, and so I will order that Benjamin be paid that amount out of the estate (which, for the avoidance of any doubt, means the estate before any division between and distribution to David, Andrew and Benjamin) subject always to him making an application for his costs to be paid by the defendants.

Finally, Benjamin’s legal representatives need not attend court when judgment is handed down.