Lindsay Bisiker v Judith Ann Bisiker & Ors

The Bisiker family is in dispute about the beneficial ownership of a property known as ‘Moonhills’ in Moonhills Lane, Beaulieu, Brockenhurst, Hampshire SO42 7YW which is registered at HM Land Registry under title number HP125859. All the parties to the claim share a common surname and I will refer to them using their given names.

The dispute is between Lindsay, the sole claimant, and her half-siblings Judith, Brian and Heather, and her sibling Malcolm. They are respectively the first to fourth defendants. Only Judith, the first defendant, as the registered proprietor of the property, has played a formal part in the proceedings. However, Brian, Heather and Malcolm attended the trial as witnesses to support Judith’s case that she owns the property both legally and beneficially. Lindsay says the property is held in trust for the family.

The fifth defendant, Jim, is the children’s father. His involvement in the claim is through his second wife Brenda who is the sixth defendant. She is mother to Malcolm and Lindsay, the two younger children. Brenda has adopted a neutral position and has participated in the proceedings to provide the court with evidence on behalf of Jim. Wendy Neilson was married to Jim until their divorce in 1969. She is Brian, Judith and Heather’s mother and she appeared as a witness to support Judith’s case.

Brenda is Jim’s litigation friend on the basis of her certificate dated 7 April 2025 that she is a suitable person to represent his interests and he has been assessed as lacking capacity to manage his affairs and therefore does not have capacity to conduct litigation. Her certificate is supported by a detailed report from Dr Richard Shulman who is a consultant in Geriatric Psychiatry. He assessed Jim after meeting him at his home in Toronto on 12 May 2023. He also assessed Jim’s susceptibility to undue influence although undue influence is not directly an issue in the claim. I will return to his report later in this judgment.

Jim signed three statements that are relevant to the principal issue in this claim, two on 19 May and one on 25 May 2023 (which is referred to in the claim and elsewhere as being dated 22 May 2023), just a few days after Dr Shulman’s assessment. The last of these statements is relied upon by Lindsay as providing evidence to support her claim that Moonhills is held on trust. All of them were signed well before these proceedings were issued. I will come to the circumstances in which they were made.

Lindsay relies upon capacity assessments (there are in fact three assessments bearing the same date – 23 May 2023) by a Social Worker, Coco Johnson. She met Jim on 18 May 2023, just six days after Dr Shulman met him, in circumstances that are in dispute. The court is asked to reach a concluded view about Jim’s capacity in May 2023 to make the statement dated 25 May 2023 based upon the reports provided by Dr Shulman and Ms Johnson and later reports procured by Lindsay. No expert evidence in a form that complies with CPR rule 35 has been provided to the court and the order made at the CMC is clear that no provision has been made permitting expert evidence to be called at the trial.

Jim’s position is controversial. Put in summary form, Lindsay says Jim had relevant capacity to make the statements in 2023 and he supports her position. The rest of the family say that Jim lacks capacity to conduct this claim and lacked capacity to make the statements in 2023. They say he has been manipulated by Lindsay who has taken advantage of his vulnerable position.

Moonhills is a substantial property with five bedrooms, 4.5 acres of land, a one-bedroom cottage (‘the annexe’), stabling and a tennis court. It has views across the Solent to the Isle of Wight. The value of the property is not an issue in the claim but the property is likely to have a current value in excess of £3 million.

Moonhills was bought in 1984 with funds provided by Jim. Judith recalls that she provided funds for the deposit but has been unable to provide evidence to support her recollection and is content to accept the common convention that her father Jim provided the whole purchase price. He also funded extensive works that were carried out to improve the property and paid most of the subsequent running costs from 1984 to date. An account was opened in Judith and Brian’s names and it remained the account used for Moonhills’ expenses until at least 2015.

On completion of the purchase, Moonhills was registered with HM Land Registry in Judith’s name. Judith says she is the legal and beneficial owner of Moonhills and seeks by her counterclaim a declaration to that effect. Lindsay’s case is harder to pin down. She says the property is held by Judith on trust arising in one of a number of possible ways.

The immediate catalyst for this claim, which was issued by Lindsay in September 2024, was that on 28 April 2023 she was excluded by Judith from Moonhills. Lindsay says she was in possession as of right at the time as a beneficiary under a trust of the property and was wrongfully evicted. She says the entry into possession in her temporary absence was an egregious act by Judith and was contrary to Jim’s wishes and in breach of trust. The core issue, however, is whether Judith held the property on trust for her family. If there was no trust, the wrongful eviction claim falls away. I will therefore focus on the trust issue in the first instance.

Jim grew up in Surrey and studied at Charterhouse and Oxford, also serving in the Marines. He was later very successful in the oil business. By 1984 he had been resident in Canada and domiciled there for tax purposes for many years. All of the children were born in Canada. The precise measure of his wealth in 1984 has not been put in evidence but there is no doubt that he was able to provide substantial support for his family and took pleasure in doing so. The clear impression from the evidence is that Jim was, and enjoyed being, the fulcrum of the family. As he became older, as is common, he became increasingly concerned about the disposal of his wealth on his death.

All his children describe him in warm and affectionate terms. His eldest child Brian described him as a “seriously successful businessman” who was a “very generous man”. Neither of those descriptions is in doubt. Tax was an important issue for Jim. He had access to tax advisers in England and Canada and the way he structured his affairs was driven by a wish to minimise his, and his family’s, exposure to lifetime and inheritance taxes. In 1984 he was anxious to avoid jeopardising his Canadian tax domicile and did not want to pay tax in the UK.

Members of the Bisiker family were used to having access to multiple properties and receiving substantial financial support from Jim. An example of the latter can be seen with the help provided for Brian. Although the evidence shows that Moonhills was bought as a home principally for Judith, Brian and his wife lived there for just under two years from 1984. Not long after the purchase, Jim funded the acquisition of premises to set up a restaurant in Lymington for Brian and his wife Nicola. An English company Marketglen Limited owned the premises and the business. Although Jim was one of the directors of the company, he was not a shareholder. The restaurant business was not successful and was sold with the proceeds of sale being rolled into the purchase, funded both as to purchase and development, by Jim, of the Lake Vyrnwy Hotel in North Wales as a business for Brian, which he still operates through Marketglen Limited. The property is owned through a Jersey company, Wayfarer Limited. So, at about the time Jim paid for the purchase of Moonhills he provided substantial support for Brian.

Judith came to live in the UK in 1981 and in 1984 was living in Hampshire in a small, rented bungalow. She is a gifted horse rider and, in the summer of 1984, Wendy came to England with Jim to watch Judith compete at the Badminton Horse Trials. Jim was keen for Judith to own her home to get on the property ladder and wished to buy a property for her. He and Brenda also both wished to have a holiday home in the UK. The precise circumstances in which Judith found Moonhills, about which there are slightly different accounts, are not important. But it must have been clear at the time that Moonhills was a far larger property than Jim might have been expected to buy for Judith although it had the attraction of stabling and some land which suited her metier. The house was not in good condition, lacking, for example, an effective heating system. Substantial works were needed to bring the house into a modernised condition. Initially there was little furniture in the house and Judith and Brian slept on mattresses on the floor. Judith did not have the ability to fund the renovation works that were needed and it must have been clear to both Jim and Judith at the time of purchase that he would be paying for the works.

In the broadest sense Moonhills has always been a family property. Judith lived there from 1984 to 1995 and shared the property with Brian and his wife for about 18 months. Jim and Brenda used it as a holiday home, particularly in the summer, and other family members came to stay from time to time. Later, Lindsay became the most regular user of the house and had an extended and close relationship with it.

The claim was issued by Lindsay against her siblings and her parents on 13 September 2024 and it came on for trial before me over five days between 29 June and 3 July 2026. Hamlins LLP have been on the court record from time to time but for the most part Lindsay has acted as an unrepresented party with ‘unbundled’ help from counsel and Hamlins and other solicitors.

Katharine Holland KC appeared for Lindsay at the trial having been instructed by Hamlins only shortly before the trial. She did not appear for Lindsay earlier in the claim although Lindsay was represented by counsel at each hearing. I am grateful to Ms Holland for undertaking a difficult task with only limited time for trial preparation. I am also grateful to James Saunders who appeared for Judith and to Hugh Jeffery who appeared for Brenda Bisiker in her capacity as Jim’s litigation friend. In light of the decision taken by Brenda on her own and Jim’s behalf that they would remain neutral, Mr Jeffery played only a limited role in the trial.

The principal relief sought by Lindsay in the claim, as it was issued, and as it remained up to the conclusion of the evidence, was a series of alternative declarations which cascade in the following way:

She also seeks an order that she is permitted back into Moonhills having been, on her case, evicted on 28 April 2023, damages or equitable compensation and other ancillary remedies.

Paragraph 4 of the particulars of claim provided, until amendment during the trial, the core of Lindsay’s claim:

“4.

Moonhills was purchased in or around 1984 for approximately £150,000. The purchase price and the associated costs of purchase were paid for exclusively by Jim, who intended that Moonhills would be the UK home for him and his family. Jim arranged for the Property to be registered in Judith’s name on 31st August 1984 solely because she was resident in the UK at the time; but it was at all material times agreed between Jim and Judith and/or it was their common intention that Judith would hold the Property as trustee upon trust for:

The numbering in the particulars of claim is awry and goes on in subsequent paragraph 3 to assert that the agreement and/or common intention is evidenced by five documents dating from a period 2016 to 2023 (a period starting 32 years after the purchase), namely:

The evidence relied upon by Lindsay in her statement of case in support of the existence of a trust is very limited and dates from a period commencing 32 years after the property was purchased. The emails from Jim dated 29 February 2016, 12 January 2017 and 6 January 2018 and the letter from Judith’s solicitor dated 10 January 2023 are all equivocal in the sense that Jim does not say in terms that he intended Judith to hold the property on trust. The disputed statement from Jim dated 25 May 2023 says both that Moonhills belongs to him and also that the Children each have a beneficial interest. Both these assertions cannot be correct. However, further documents that are relied upon by Lindsay came to light on disclosure and it will be necessary to consider the key documents that are available relating to the purchase and from 2004 onwards to see how far they support Lindsay’s claim.

Paragraph 6 of the claim goes on to state (and this is not in issue) that Jim paid for the costs of purchase, renovation, running costs and building an annexe, new stables and a tennis court.

Paragraphs 7 and 8 put forward two further alternative cases:

“7.

Further, or in the alternative, in the premises set out in paragraph 4 above, Moonhills was, at all material times from 31st August 1984, held by Judith on a resulting trust for Jim, who, until the date of the Statement, held the entirety of the beneficial interest in Moonhills. The passage cited from the Statement above constituted a declaration of trust by Jim of his beneficial interest in Moonhills and/or a disposition of his beneficial interest such that, at all times since the date of the Statement, Moonhills has been held upon trust for the Children, subject to the Children, Jim and Brenda each having a right to occupy the Property.

8.

Further, or in the alternative, in the premises set out in paragraph 4 above, Moonhills has, at all material times, been held by Judith on a resulting trust for Jim.”

The trust relied upon in paragraph 7 is based upon the premise that Moonhills was held by Judith for Jim under a resulting trust and he was the owner of the entire beneficial interest. He was therefore in a position to create a new trust in 2023 declared by his statement dated 25 May 2023.

The central issue between the parties is whether Judith holds the beneficial interest in the property in trust or whether, as she says, she is the legal and beneficial owner and merely under a moral obligation, when she comes to sell the house, to distribute the proceeds of sale between herself and her siblings in equal shares.

Following an undertaking given by Judith to Mellor J on 15 November 2024, the balance of Lindsay’s application for interim relief in relation to her being excluded from the property was adjourned to be dealt with by a Chancery Master and came before Deputy Master Dew on 9 April 2025. The Deputy Master directed that a Case Management Conference be fixed for hearing. The possibility of a challenge by Lindsay to Brenda’s position as Jim’s litigation friend had been flagged and the Deputy Master also ordered that:

“7.

Any disputes regarding the appointment of the [Sixth] Defendant as litigation friend for the Fifth Defendant shall be considered at that hearing, and such issues shall be raised by way of application notice issued no less than 14 days before the hearing.”

The case management conference came before Master Kaye on 18 August 2025. It is clear from the recitals to the order that:

The order provided the usual suite of directions including provision for disclosure in accordance with Model B and exchange of witness statements. No permission for expert evidence was sought by either side. The trial date before a Master was fixed pursuant to the order with a pre-trial review to take place approximately 6 weeks before the trial.

The claim came back before Master Kaye on 10 February 2026 on the hearing of applications made on behalf of Judith. The Master accepted that there had been a wholesale failure on the part of Lindsay to comply with the order for disclosure and the provisions of Practice Direction 57AD. She ordered Lindsay to comply with the order dated 18 August 2025 by reference to the agreed issues.

On 6 March 2026 the question of disclosure was considered again by Master Kaye and she made an unless order requiring Lindsay to comply with the orders dated 18 August 2025 and 10 February 2026 by 16.00 on 20 March 2026 failing which Lindsay’s claim would be struck out. This resulted in disclosure being given by Lindsay in a form that materially complied with the orders within the deadline.

At the pre-trial review before me on 18 May 2026 a number of applications were heard. Orders were made for specific disclosure against Lindsay and she was restricted to calling 5 witnesses (including herself) at the trial. The order provided that Lindsay was not permitted to rely upon written evidence that was incorporated by reference in the witness statements of her trial witnesses. The trial time estimate was extended and provision was made for some witnesses to give evidence by video link.

At the outset of the trial I heard three applications made by Lindsay (two of which were contested). The first was an application for special measures permitting Lindsay to give evidence behind a screen. The application was opposed by Judith on the basis that Lindsay is not vulnerable and did not fall within the provisions of Practice Direction 1A. An order was made granting Lindsay the relief she sought for the reasons given at the time.

The second application was an application made pursuant to CPR rule 32 to permit Lindsay to adduce further written evidence in the form of Bundle C. To put the application in its context, Bundles A and B prepared for the trial by Judith’s solicitors amounted to 1,952 pages (including the statements of case and the witness statements). Bundle C ran to in excess of 3,105 pages of additional documents only a small proportion of which had been disclosed by Lindsay when complying with the orders for disclosure. In her first attempt to provide disclosure she produced a large number of documents in an unstructured fashion and in a manner that Master Kaye determined had not complied with her order. It may well have been the case that some of the documents in Bundle C had been produced at this initial stage, but the Master accepted that Judith’s solicitors could not be expected to review the documents produced in a chaotic fashion.

In the course of hearing that application, I pointed out that Lindsay was in effect saying that she had failed to comply with the unless order because the majority of the documents in Bundle C were in her possession in March 2026 but had not been disclosed. If that was right, her claim was automatically struck out, unless a successful application for relief from sanctions was made. In the event I ruled that Lindsay was only permitted to rely upon additional documents at the trial that she had disclosed in a compliant manner in March 2026.

There was some concern at the pre-trial review whether it would be possible for the court to receive all the evidence that the parties wished to place before the court in the space of a week. Undoubtedly the extended trial timetable was tight. However, it would have been highly unsatisfactory for everyone had the trial date been adjourned to a date later in 2026. The effort made by counsel and solicitors to make the trial run smoothly and conclude within the allotted time was commendable, particularly given that a good deal of the first day was taken up with procedural applications and there was a real need to ensure that witnesses giving evidence by video link from Canada were able to do so at a time of day that was acceptable.

When Lindsay went into the witness box she proved her trial witness statement but then sought to rely upon other statements made by her earlier in the claim on the basis that they were incorporated by reference in their entirety in her trial statement. This was opposed by Mr Saunders relying on the ruling given at the Pre-trial Review. Ms Holland submitted that if Lindsay were refused permission to rely upon at least part of her earlier statements much of her core evidence would be excluded and that by the time the PTR took place the position had crystallised because her trial witness statement had already been served. Mr Saunders submitted he could not cross-examine Lindsay without knowing which parts of her earlier statements she relied upon. A blanket incorporation by reference of five earlier statements was not permitted by the order of Master Kaye and was procedurally unfair.

In the event, and in order to balance the competing considerations of fairness, I directed that Ms Holland was to provide a list of the paragraphs in Lindsay’s statements she wished to rely upon by 4.30pm that day. I adjourned the trial to 9.30 on Tuesday to enable Mr Saunders to prepare cross-examination.

The claimant and first defendant agreed a list of issues for trial on 16 February 2026:

“The Ownership of Moonhills

1.

Whether Moonhills was purchased for the First Defendant to hold upon trust or to hold absolutely?

2.

If Moonhills was purchased for the First Defendant to hold upon trust, for whom was the legal and/or beneficial interest of Moonhills held on trust?

3.

Further to issue 2, on what terms, including powers of sale, does the First Defendant hold Moonhills upon trust?

4.

Whether the Fifth Defendant contributed to the management, maintenance and bills etc. of Moonhills upon a shared intention that the First Defendant was holding Moonhills on trust?

5.

Whether the Fifth Defendant had capacity to make the statement on 22 May 2023 pleaded in paragraph 5(v) of the Particulars of Claim?

The Claimant’s Occupation of Moonhills

6.

Whether the Claimant, by virtue of a beneficial interest, had a right to occupy Moonhills?

7.

Whether the Claimant was living at Moonhills since 1991 and during that time made Moonhills her principal private residence?

Whether the Claimant was in occupation of Moonhills on 28 April 2023?

Issues 1 – 5 relate to the ownership of Moonhills. Issues 6 – 12 only arise for determination if the court concludes that the property was held on one of the trusts put forward by Lindsay. I propose therefore to focus initially on issues 1 – 5 (and in particular issues 1 and 5), leaving the remaining issues for later consideration if it is necessary to do so. Issue 5 requires the court to form a view about Jim’s capacity in May 2023 and needs to be dealt with separately.

There are no material differences between the parties about the law as it relates to the trust claim.

An agreed starting point is that “equity follows the law, and the beneficial ownership of the property is held in the same way as the registered legal estate in the property”: Snell’s Equity 35^th ed. at 24-049. (Footnote: ¹) It follows that the burden is on Lindsay to establish that beneficial ownership differs from legal ownership by virtue of one of the trusts she puts forward. The burden would also fall on Lindsay if the presumption of advancement applies.

Ms Holland invited the court to start with the analysis provided by Lord Briggs in Gany Holdings (PTC) SA v Khan [2018] UKPC 21 at [17] in which he provided what he described as the “basic principles by which equity …. provides for identification of beneficial interests arising from a gratuitous transfer of property” in the following passage:

“First, if either the transferor or the transferee makes a written (or oral) declaration as to those beneficial interests, or they do so together in an agreed form, that will generally be decisive, regardless of the subjective intentions of either of them. Secondly, and in default of any such declaration, the court looks for evidence from which a common intention as to beneficial ownership may be inferred. This may include evidence of statements made by either party before, at the time of or even after the relevant transfer, the parties’ conduct, and the factual context in which the transfer takes place. Sometimes, a choice between possible conclusions as to beneficial interest may properly be arrived at by a process of elimination, whereby the most unlikely conclusions are first removed, leaving the least unlikely as the correct one. Finally, recourse may be had to time-honoured presumptions, such as the presumption of advancement or the presumed resulting trust, where there really is no evidence from which an inference as to common intention may properly be drawn. But these are, in modern times, a last resort, now that historic restrictions on admissibility of evidence have been removed, and the forensic tools for the ascertainment and weighing of evidence are more readily available to the court.”

Ms Holland places reliance upon Lord Briggs’ observation that the historic restrictions on the admissibility of evidence have been removed and refers to the principle that later conduct is relevant in proving what was previously intended relying upon a decision of Michael Briggs QC, as he then was, sitting as a judge of the High Court in Supperstone v Hurst [2005] EWHC 1309. However, that was a decision principally about the relevance of later evidence to establish the extent of a party’s interest in the property, rather than whether a trust came into existence. She also relies upon Lavelle v Lavelle [2004] EWCA Civ 223 which is more on point where Lord Phillips MR said at [19]:

“Equity searches for the subjective intention of the transferor. It … is not satisfactory to apply rigid rules of law to the evidence that is admissible to rebut the presumption of advancement. Plainly, self-serving statements or conduct of a transferor, who may long after the transaction be regretting earlier generosity, carry little or no weight. But words or conduct more proximate to the transaction itself should be given the significance that they naturally bear as part of the overall picture. Where the transferee is an adult, the words or conduct of the transferor will carry more weight if the transferee is aware of them makes no protest or challenge to them.

There is therefore no absolute bar against the admissibility of a transferor’s subsequent acts or declarations. All relevant evidence is to be before the court and the court will decide on the weight to be attached to it: see E Fung ‘The scope of the rule in Shepherd v Cartwright’ (2006) 122 LQR 651.”

This passage was cited with approval by the Privy Council in Enal v Singh [2022] UKPC 13 at [37]. I note that in giving the judgment of the board (of which Lord Briggs was a member) Sir Nicholas Patten approached the appeal through the lens of whether there was evidence to rebut the presumption of advancement. Having dealt with the presumption of a resulting trust at [34] he said at [35]:

“35.

… there is a presumption of advancement in favour of the child which, unless rebutted, will displace the presumption of a resulting trust. Although much criticised as based on outdated assumptions about the relative status of children to parents and of wives to husbands the presumption of advancement continues to form a relevant part of the court’s inquiry as to the intended legal consequences of the transaction. It has not been suggested by either party to this appeal that the Board should adopt some different starting point. The most obvious one would be to presume that in the absence of an express declaration to the contrary beneficial and legal ownership are the same so that the onus would lie on the party alleging some different arrangement to prove that the parties to the conveyance did not have this intention. This is now the position under English law in cases of jointly owned domestic property: see Stack v Dowden [2007] UKHL 17; [2007] 2 AC 412. But it has not yet come to be applied in cases such as the present one involving transfers of non-domestic property between or at the expense of connected persons.”

There is therefore a divergence of judicial view about both the starting point of the inquiry by the court and the importance of the traditional presumptions. The trial before me proceeded on the basis that Lord Briggs’ approach in Gany is the correct one and that is the approach I adopt for this judgment.

Mr Saunders principally relies upon the statement of principle set out in the judgment of Miles LJ in Khan v Khan [2025] EWCA Civ 1436 at [56]:

“56.

Fancourt J neatly captured the two kinds of constructive trust in para 32 [in Archibald v Alexander [2020] EWHC 1621 (Ch)]. As he explained, common intention trusts arise when the owner of a property has expressly or impliedly promised or agreed with another person that they have, or will have, an interest in it. An informal promise of that kind cannot be enforced against the owner unless the promisee has reasonably changed their position in reliance on the promise. Acquisition constructive trusts, by contrast, arise where a property is transferred into the name of the owner on the basis of their agreement to hold the property on trust for another. The owner only obtains the property on the terms of the agreement and equity does not permit them unconscionably to refuse to give effect to the terms. The trust arises from the terms on which the property was transferred, not from detrimental reliance on the agreement by the beneficiary.”

The court in this case is dealing with an acquisition constructive trust. The only gloss which is appropriate is that there is no requirement for an agreement which is express. An agreement or a common intention can be inferred from words used at the time or later or from conduct at the time of purchase or later.

The only other legal principles that need to be mentioned are:

I observe at this stage that the trust permutations in paragraphs 7 and 8 are based upon the ‘premises’ set out in paragraph 4 which themselves set out two alternative trusts arrived at by alternative means. As the case was set out in the particulars of claim, on one line of authority, it was vulnerable to being struck out having regard to the observations in First National Trustco (UK) Ltd v Page [2019] EWHC 1187 (Ch) by Joanna Smith QC (as she then was) sitting as a Deputy Judge of the High Court at [243 -244].

Ms Holland indicated part way through the evidence called on behalf of Judith that she wished to apply to amend the claim. The application was made after the remaining evidence had been taken during closing submissions. Lindsay applied to remove the first of the two alternative trusts set out in paragraph 4 of the particulars of claim, namely the trust for Jim and Brenda and the children, leaving as her primary case a claim that by an agreement and/or a common intention a trust came into being in 1984 in favour of the five children. The application was not opposed. Despite being made very late, I consider that permission should be granted. It simplifies the claim put forward and reduces the permutations by which a trust may have come into existence to 5 if agreement and common intention are treated as separate routes to the creation of a trust. If they are treated as one there are just three inconsistent trusts based upon the premises set out in paragraph 4 of the particulars of claim; a common intention constructive trust in favour of the children, a resulting trust in favour of Jim which was converted into a trust in favour of the children by the declaration contained in the witness statement dated 25 May 2023 or a resulting trust in favour of Jim. The primary focus of the claim has been on the first of these alternatives.

The very broad way in which the claim was pleaded, even after amendment, taken with the approach adopted by Lindsay in pre-action correspondence suggests considerable uncertainty on her part about the nature of her claim. When cross-examined, somewhat implausibly, she maintained that she was aware (as she says in her statement of case) of the trust from 1984 when she was aged just 9. She also said that the same agreement or common intention she relied upon could be taken to support both ways in which her claim was put in paragraph 4, prior to amendment. The same agreement or common intention created a trust for both seven persons (parents and children) and five persons (the children). She said it was up to the court to choose which of these alternatives to adopt. I do not need to consider any further the pleading point that was discussed in First National Trustco. The risks that arise from putting forward a statement of case which leaves to the court to infer alternative trusts arising out of the same facts are obvious.

The purchase took place 42 years ago. Despite having received a volume of documents and evidence from 10 live witnesses, four witnesses providing hearsay statements and Jim’s three 2023 statements I am struck by how little the court knows about this family over that lengthy period. Inevitably, the witness statements provide little more than edited highlights.

To put the purchase in context, the ages of the principal parties in 1984 were:

The evidence falls into several distinct periods which are to some extent marked by the presence or absence of documents.

The first period is when the property was purchased. Helpfully, there are contemporaneous documents relating to the purchase and they are relied upon by both parties who invite the court to draw conclusions from them which are at odds with each other. Furthermore, the court has the benefit of evidence from the solicitor, Brett Johnson, who dealt with the purchase. Judith, Brenda and Wendy Neilson are all able to say something about the purchase.

The second period runs for about 20 years from 1984 until 2004. Judith lived at Moonhills with her partner, Tim Dunning, from 1984 to 1995. They then moved away. There are no documents for the whole of this second period, although the principal facts are not in dispute. It is notable that no issue about beneficial ownership was raised over this extended period. By the end of the second period, 2004, Jim was aged 75.

The third period runs from 2004 up to 2015. From 2004 there is an increasing volume of correspondence concerning a proposal to transfer Moonhills out of Judith’s name. The catalyst is likely to have been Judith’s separation from Tim Dunning in around 2004. The documents mainly concern tax advice sought by Jim from his advisers about Judith’s tax position. No mention of a trust is made during this period although Lindsay relies upon statements made by Heather in 2015 that the property belonged to Jim. By 2015 Jim was aged 86.

Finally, there is the period from 2016 onwards. The bookend for this period is the first document relied upon by Lindsay in her statement of case which is dated 29 February 2016. From around this time, issues had arisen between Judith and her father about the beneficial ownership of Moonhills.

In 2023 when Jim made the three statements that were procured by Lindsay he was aged 93.

This is not a case in which the court is able to rely solely or principally upon documents and place little or no reliance upon oral evidence. It is simply not open to the court to adopt the approach commended by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22].

Newey LJ provided a very helpful observation in Mohammed v Daji [2024] EWCA Civ 1247 at [45] about the need for caution in adopting a Gestmin approach:

“The significance of evidence as to recollection

45.

Judges have for many years remarked on the vulnerabilities of evidence as to what witnesses remember. Popplewell LJ recently discussed human memory and how witnesses can come to give mistaken evidence in his 2023 COMBAR lecture, Judging Truth from Memory: The Science. In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [2020] 1 CLC, at paragraph 22, Leggatt J went so far as to suggest that “the best approach for a judge to adopt in the trial of a commercial case is … to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”. However, Popplewell LJ explained in his lecture that he did not himself wholly agree with this remark and in Natwest Markets plc v Bilta (UK) Ltd [2021] EWCA Civ 680 the Court of Appeal pointed out at paragraph 50 that “it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance”. In Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3, the Court of Appeal said at paragraph 88 that “a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence”.”

I must in this case have regard to all the evidence, giving due weight to the evidence of witnesses. Clearly considerable caution is needed when considering recollections dating back over many decades.

On Judith’s side the witness evidence is broadly consistent about the basis upon which the purchase was made; but there are remarks in the later correspondence that do not fit comfortably with her case. On Lindsay’s side, she is not able to provide evidence about the purchase and what may have been said in 1984. She was aged 9 at the time and living with Jim and Brenda in Canada. She relies upon what she says she was told later by her father and Judith.

The wild card in the pack is Jim’s evidence. He has indicated different things at different times. If his 2023 statement is accepted, it may lend some support to Lindsay’s case. Issue 5 is therefore of potential significance.

The court heard oral evidence from all the parties to the claim other than Jim. In addition, Lindsay called four witnesses who principally dealt with her occupation of Moonhills and she relies upon a hearsay statement dated 18 October 2025 made by Lucy Potter. Judith also called her mother Wendy Neilson who was present in the UK in 1984 and relies upon three hearsay statements.

Before summarising the evidence I will record my impressions about the evidence they have given and the extent to which I can treat them as providing an accurate record of events.

Lindsay provided a trial witness statement that barely touched upon the trust issue. Its focus is on arguing the case and explaining from her point of view why she is being poorly treated by the rest of family, other than her father. She was also permitted, as a concession, to rely upon an earlier statement which puts forward her case as it is set out in the particulars of claim without providing any significant additional explanation other than to say the existence of a trust, in one form or another, was always understood by her based upon what she was told by others.

I did not find Lindsay to be a helpful witness. She rarely answered the question she was asked. Instead, she provided answers to questions that suited her case. She also embellished her case with information she had not provided in her witness statements, such as referring to a specific conversation with Judith she claimed to recall about Moonhills being held on trust. Furthermore, and crucially, the core of her evidence is very hard to follow. Two examples suffice. First, she stoutly maintained that she had always understood Moonhills to be held in trust, as her case is pleaded, and yet she was aged 9 when it was bought, living in Canada and had no involvement with the purchase. She could not have had any involvement with the purchase or knowledge of Jim’s state of mind in 1984. Secondly, she said her case was that the property was held on trust either for all seven members of the family or just for the Children or just for Jim and it was up to the court to decide which was the right version. She said the agreement and/or common understanding she relied upon could support all three outcomes.

There is little in her evidence that I can rely upon. It is clear to me that she has constructed rather vague recollections of conversations with Judith and Jim of which details are not provided. In reality, she has very little evidence she can provide of substance about the existence or otherwise of a trust created in 1984 other than what may have been said to her by Jim much later. Her oral evidence needs to be treated with considerable caution.

Judith provided a very full trial witness statement. She did not claim to recall all the details of the purchase in 1984. She was a forthright witness who clearly feels strongly about the issues in the claim and she too was often slow to answer in a direct manner the questions addressed to her. However, she was willing to accept that some of the language she used in correspondence from 2015 onwards was at odds with her case and explained them by saying she has misused language such as ‘beneficiary’ and was simply wrong to say in 2015 that Moonhills was part of Jim’s estate. I consider her to be a truthful witness. But the court needs to be cautious about her recollections of events that occurred many years ago because her evidence when cross-examined differed to some degree from her evidence in chief.

Brenda is elderly and gave evidence over a not entirely satisfactory video link from Canada. She, and through her Jim, have adopted a neutral stance concerning the issues. She was not directly involved in the purchase of Moonhills but recorded what she believes were Jim’s wishes. I found her to be a helpful witness who has carefully avoided being drawn into the dispute between Lindsay and Judith. I accept her evidence but note there appeared to be a marked degree of conflation between the purchase in 1984 and what she believes Jim may have wanted from 1984 onwards. Where her evidence about the circumstances in which Jim’s three statements were made in May 2023 and his assessment by Ms Johnson conflicts with Lindsay’s evidence, I prefer her version of events.

Wendy Neilson, Jim’s first wife, also gave evidence by video link. Although she is aged 86, I found her approach to be clear and helpful. She had no involvement with the purchase of Moonhills but was able to provide her understanding of the way in which it is held. Although she is Judith’s mother, and might naturally be inclined to support her case, Judith’s counterclaim brings no financial benefit to Judith provided she honours her promise to share the proceeds of sale in accordance with Jim’s wishes. She was a helpful witness whose evidence I accept.

The evidence of Brian, Heather and Malcolm supports Judith. Heather failed to deal satisfactorily with an email she wrote in 2014 when she said that Jim was the “real rightful owner” of Moonhills. She was slow to accept she had written the email when there was no basis to believe it might have been created by someone else and this was unhelpful. She was not able to explain her remarks. I must approach her evidence provided in support of Judith with some caution. Brian and Malcolm were helpful witnesses seeking to recall events to the best of their ability and I accept their evidence.

I mention here the statement given by Mr Johnson who was the solicitor who dealt with the purchase in 1984. I consider his statement taken with the documents relating to the purchase as amongst the most helpful evidence before the court. Mr Johnson is now aged 82 and he candidly accepts that he does not have a full recollection of all aspects of the transaction. However, he says in his statement that he recalls the transaction fairly well and he provides a plausible explanation for this. It was the first time he had acted for the Bisiker family, for whom he went on to undertake further work; and he describes Moonhills as a memorable property. He recalls going there for drinks a few times over the years after its purchase. His statement is submitted pursuant to the hearsay notice that invites the court to have regard to the serious medical conditions he is experiencing. Although a degree of caution is needed, Mr Johnson’s evidence is careful and measured and I accept it as providing his honest recollections about the purchase.

The initial correspondence from Mr Johnson’s file in May 1984 shows that Jim was introduced to Mr Johnson by Richard Berry who was a friend of Judith’s. Mr Johnson wrote to Jim in Canada on 2 May 1984 referring to a proposed purchase of Moonhills by Jim from Mr and Mrs Ward for £168,000. He sought instructions from Jim to act on his behalf. He goes on:

“From Mr Berry I understand that although you are in funds to cover the transaction, you are considering raising a mortgage on the property at some stage. I further understand that you are considering making the purchase in the name of a company of yours, I should certainly recommend that your accountant be consulted on both these matters before you commit yourself.”

In a letter to Mr Berry of the same date it is clear that Mr Johnson was proceeding upon the assumption that Jim was to be Mr Johnson’s client and the purchaser. Carr & Neave Surveyors were instructed on behalf of Jim to provide a survey.

On 11 May 1984 Jim wrote to Mr Johnson confirming that Mr Johnson was to act for him. He goes on to say:

“As noted in your letter, I am in funds at this time to complete the transaction, but was wondering if the property was owned by a company, either foreign or otherwise, whether this would adversely affect the possibility of arranging mortgage financing at a later date.

If this is the case the property could be held in my daughter, Judith’s, name and I could guarantee the mortgage as required. Judith is over twenty one and so should be able to hold the property and act in her own right.”

Mr Johnson provided advice in his letter to Jim dated 18 May 1984. Having reported to Jim that a satisfactory survey had been obtained and that he had requested a contract from the vendor’s solicitors, he advised Jim that if Moonhills was held in the name of a company it would be much less likely that a mortgage could be obtained. He went on to say that if the property was to be purchased in Judith’s sole name she had better get in touch with him.

The documents then show a draft and a signed contract with Judith as the purchaser giving her address in Brockenhurst. Edmund Coxhead, Mr Johnson’s assistant, wrote to Judith on 12 June 1984 to say that contracts had been exchanged with completion due on 6 July 1984. He wrote to her again on 21 June 1984 about arrangements for completion and the completion statement is addressed to her. The transfer to Judith is dated 6 July 1984.

On 13 July 1984 Jim wrote to a Mr Williams at Halifax Building Society in Lymington providing evidence of his earnings. He said he would make up any shortfall on payments by Judith. A mortgage offer was issued to Judith on 3 August 1984 which Mr Coxhead of Johnsons reported to Jim. Brian Bisiker and his wife Nicola signed consent to the mortgage as occupiers of Moonhills.

On 5 September 1984 Mr Coxhead wrote to Judith to say that he had not heard from her with instructions for the disposal of the net mortgage advance and had enclosed with the letter a cheque payable to Jim.

There are two further documents which are material. First, there is a draft option agreement between Judith and Jim which entitled Jim to purchase the property for £1 at any time within 21 years. Secondly, Mr Johnson wrote to Jim on 30 November 1984 to report that Judith had executed a will leaving Moonhills to Jim. Such a will would only of course take effect if Judith predeceased her father. No copy of the will has survived.

The core of Mr Johnson’s evidence is contained in the following passages:

“8.

I recall that, at a fairly early stage, Jim decided that the property would be bought in Judith’s name instead of his and I am very clear that my client in the purchase was therefore Judith, not Jim. From that point, I took instructions on the routine aspects of the purchase from her. Jim, rather than Judith, provided the purchase monies – I cannot recall their precise source but they were from Jim - and I recall very clearly that he did not want to be on the title at all. Nor did he want to be a beneficial owner. The main reason for this was tax; he did not want his estate to include Moonhills when he died. He wanted the property to be in Judith’s sole ownership because he trusted her to do what he wanted, namely hold the property and allow the family (including Brenda and himself) to use it whenever they wanted to and then, when it was eventually sold, to share the proceeds among his children.

9.

When he told me this, I do recall suggesting a declaration of trust to Jim – with all his children named as beneficial owners - but he said that he couldn’t be bothered with that and it wasn’t necessary as he trusted Judith completely and it would be easier if she were the sole owner without any trust arrangements. I am informed by Judith’s solicitor that Judith describes her obligation to share the net sale proceeds among the children equally as a ‘moral’ one and that is consistent with my understanding as to the intention when Moonhills was purchased.”

Mr Johnson has no recollection of preparing the option agreement or a will for Judith although he says that both the draft option agreement and the letter dated 30 November 1984 look authentic and the reference at the top of the option is one he recognises. He goes on to say that both documents would appear to be consistent with Jim’s wishes concerning beneficial ownership. Having considered paragraph 4 of the particulars of claim he concludes his statement saying:

“17.

….

b.

It is true that Jim saw Moonhills as a UK home for himself and his family and intended that his family would be able to use it. I know that he continued to do so for decades after its purchase;

c.

Jim did not arrange for Judith to be the registered proprietor simply because she lived in the UK. He did so because he trusted her to comply with his wishes as detailed above;

d.

I have no knowledge of any trust agreement and/or common intention as between Jim and Judith. Certainly neither Jim nor Judith ever mentioned this to me;

e.

I am confident in my recollections that Jim did not intend Judith to hold Moonhills on trust for him or for Brenda (and indeed in his case he absolutely did not want to be a beneficial owner) and, as related above, he could have sought to arrange for Judith to be a trustee for the children, as I suggested, but did not wish to do so.”

If taken on its own, Mr Johnson’s evidence is compelling. Jim did not want to be a beneficial owner, he did not want to create a trust for his children and he trusted Judith to apply a moral obligation to distribute the proceeds of sale to the children when it was sold. The main driver behind Jim’s approach was tax. It was not that he wanted to mask the true beneficial position for the purposes of tax but rather he did not want to hold any interest in property in the United Kingdom out of a concern to avoid jeopardising his settled Canadian tax domicile. His concern about tax is evident from later documents starting from those in 2004. Equally, he did not want to create a trust of Moonhills for his children.

There is also a statement served with a hearsay notice from Richard, Viscount Kemsley, a family friend, who is aged 75 and unwell. He says:

Clearly, neither Mr Johnson nor Viscount Kemsley has any reason to mislead the court. They have no interest in the outcome of this claim and are dispassionate about the issues.

The two statements cannot be reconciled with Jim’s statement dated 25 May 2023 and other assertions made by him long after the purchase that Moonhills was his property or it was held in trust.

I will come to Lindsay’s evidence. Before I do so it is instructive to consider what the witnesses who have some direct knowledge of the purchase say about it.

She says about the purchase in her witness statement:

“12.

[The purchase] occurred over 40 years ago and I cannot claim to remember the detail of each and every conversation I had with Jim concerning the purchase at the time. We spoke about it however and I do recall him making it very clear to me at the time that he did not want Moonhills to be his property and that it was to be mine.

13.

… it is true that [Jim] was advised that the mortgage he wished to raise could be raised more easily by an owner resident in the UK. I was going to be remaining in the UK for the foreseeable future and was also going to be one of the people living at Moonhills. Moreover, I know that Jim trusted me to respect his wishes with regard to the property. I was clear in 1984 and I remain clear today what those wishes were and how they developed over time (and would be now if Jim had the capacity to hold or express them). I refer to this further below.

14.

However, the overriding consideration at the time was tax. … He was 55 when Moonhills was acquired and he had his own long-term estate planning very much in mind. For this reason, he did not want his name associated with the ownership of any property in the UK, Moonhills included, as he did not want his estate to be liable for tax on it when he died. I can therefore say with complete confidence that Jim neither wished to be, nor saw himself as, a beneficial owner of Moonhills at any time, either when it was acquired or subsequently.

…

16.

There was no agreement or understanding between my father, me and any of the other Defendants (including Lindsay) that anyone else - other than me - had any part ownership, interest or any other legal rights whatsoever with regard to Moonhills in 1984 or at any time thereafter. This even includes Brian, who it was intended would move in with me following the purchase (and he did so).”

She confirmed that at the time of the purchase she executed an option in favour of Jim enabling him to acquire the property for £1 within 21 years of the purchase and a will leaving it to him in the event of her predeceasing him. Judith’s evidence when cross-examined about conversations with her father in 1984 was less clear than in her written evidence. She said the property was purchased by Jim for her to live in. She said there was a discussion in 1984 when Jim said he did not want to own property in the UK and therefore was putting the property in her name; and there was no discussion about a trust or a company holding the property. Jim was not ignorant about the options open to him. She maintained that Jim had said in terms that the property was a gift to her, but that conversation took place some years later. She said there did not need to be a discussion about that in 1984. She was also unclear about when she and her father agreed she was subject to what she termed a moral obligation; that when the property was sold, she would share the net proceeds equally with Brian, Heather, Malcolm and Lindsay. She agreed with Jim at the outset that the family could stay at Moonhills for holidays.

Somewhat implausibly Judith said that when she left Moonhills in 1995 it became part of her ‘property portfolio’. This appeared to be an improvised explanation in the course of cross-examination because she did little to manage the property after she left to live elsewhere and made no financial contribution. She was unaware of a letting of part of Moonhills. The tenancy agreement described the landlord as the ‘Bisiker Family’.

In much later years after issues had arisen between Jim and Judith she repeated on several occasions her agreement to distribute the proceeds of sale between the five children and used language such as ‘beneficiary’ and the children having ‘shares’. She said in one email that Moonhills was part of Jim’s estate. She said this was simply a misuse of language and did not indicate her understanding that there was a trust.

Brenda agreed to provide evidence because she wanted Jim’s voice to be heard. She said that she and Jim had been dreaming of a second home in England and had been staying with friends each summer since the later 1970’s. As to the purchase:

“14.

Jim bought Moonhills in spring 1984 and arranged for Brett Johnson (the conveyancer) to put it in Judith’s name, mainly for tax purposes but also in part because Judith needed a house in the UK and so Jim and I could have a residence that could accommodate the family and friends when visiting. Judith was born in 1962.

…

16.

He did not want to jeopardize the roots he had put down in Canada.

17.

To my knowledge the idea of putting Moonhills in a trust was never discussed at that point, but at the time of purchase Jim did ask Judith to create a Will which would leave the house to him in the event of her death … At the time of purchase this planning seemed sufficient as we were all much younger and the priority was that we would be able to continue to use the home. Jim was mostly preoccupied with Judith being able to claim the principal residence exemption for capital gains tax when the property was sold or transferred at some future time.

18.

The understanding from the time of purchase was that while Moonhills was in Judith’s name, it should be left for the family in the event of her death. To my knowledge, at the time he bought it, Jim did not specifically discuss with Judith what should happen in the event Moonhills needed to be sold and that this did not come up with Judith until a few years later when Judith moved into her new home at Forest Moon …

22.

Jim and I always saw it as our family's holiday home. We paid the bills and made the decisions. I was responsible for organizing the home, decorating, renovating, supervising the maintenance and landscaping, and later on, I took over, paying the bills for the house.

…

26.

In our eyes, whilst it was legally Judith's no child had any more moral right to be there than anyone else and I do not believe that any of the Children has spent any significant amount of their own money on Moonhills without being reimbursed by us, including Judith and Lindsay.

…

31.

From the early days, the ownership of Moonhills was a concern in the back of Jim’s mind. Many plans were considered over the decades but not always discussed with Judith. Jim was aware of the home’s increase in value. From time to time we had appraisals from estate agents anticipating an eventual need to transfer or sell. In Jim’s mind, the value of the home always morally belonged to the family, not to Judith. In the early 1990s when Judith moved to her home at Forest Moon, and then later to Irongate, Jim was thinking about the problem of continuing to protect the property’s capital gains from taxes using Judith’s primary residence exemption. This issue came up again when Judith separated from her partner, and again when she moved to Glastonbury, and later to Canada.

…

Legal position

38.

Jim always intended for Moonhills to be purchased in Judith's name. This was done initially for tax reasons and on a moral understanding between Judith and Jim that the property would be kept within the family in the event that she died. In later discussions, when Judith moved out of the home and the capital gains tax advantage of it having been Judith’s primary residence became a concern, the issue of what would happen when Moonhills would need to be transferred or sold became more prevalent. Judith made it clear to Jim that she would do what was morally right and split the sale proceeds in 5 ways to each of the 5 children. Ultimately the decision was made to keep the property in Judith’s name.

39.

I understand that by taking this position, Jim is forfeiting (in Lindsay's eyes) any right he has to be a beneficial owner of Moonhills. Whilst I am confident that Judith will divide the full sale proceeds between the children I understand that she is not legally bound to do so. Therefore, whether there will be an equal share to Lindsay owing to her conduct I do not know, nor is this a decision I should have involvement in. This decision lies with Judith.”

Brenda was cross-examined via an imperfect video link. There was one point in her cross-examination which has been taken by Lindsay as supporting her case that it was agreed from the outset that the children were to have an interest in Moonhills. I do not take any of her answers in cross-examination as undermining her evidence in chief.

She said she did not know about any such agreement and did not know its terms although she agreed that it was always the future goal for the children to share equally in the value tied up in Moonhills. She agreed that Moonhills was a second home for her and Jim and that it was bought for the family. However, she went on to say that she did not know if it was established when the property was bought that all five children would share it.

“All I know is that it was put in Judith’s name. She was 21 and could get a mortgage on it. That was the reason for it.”

She said, referring to what Judith has described as her moral obligation:

“It was agreed with Judith there would be one fifth shares on the sale of Moonhills.”

She was Jim’s first wife. She was in England in 1984 with Jim and Judith to watch Judith at the Badminton Horse Trials. Wendy was a ‘realtor’ and helped at Jim’s request with the search for a property for Judith. She says of Moonhills:

“4.

… The property was far larger and more expensive than the sort of thing we had been looking for but I was not greatly surprised by this. It is exactly what happened when Jim and I first married; Jim sent me on a mission to find a house for around $15,000 and then ended up buying one for $42,000.

…

6.

I had no involvement in the purchase process but my understanding from what Jim said to me about it at the time was that Moonhills would be Judith’s property, possibly to be seen as a part of her longer-term inheritance. I was certainly aware that Jim did not want to own any property or establish any presence in the UK, for tax reasons. Even when he and I were married, avoiding tax was something of an obsession of his.

7.

Further, Moonhills provided Brian with a home base as well if needed. Heather was busy floating around the world ‘finding herself’ and Jim and Brenda, and the two younger children, were settled in Ontario. I was aware of no suggestion that this was to be a family undertaking but purely and simply to provide a home to Judith, albeit that, due to its size, family and friends would always be able (and more than welcome) to visit and stay, which ultimately happened throughout the years. …”

She then describes a conversation with Jim in 1998 at a family wedding:

Before dealing with periods after the purchase it is convenient to summarise the evidence of the remaining witnesses.

Lindsay’s evidence is at best equivocal. She says Jim always led her to believe that she had a beneficial interest in Moonhills but is unclear about the terms of the trust. She says the trust was either for Jim, Brenda and the children or just for the children. She relies upon the documents set out in the particulars of claim. She also relies upon a hearsay notice in relation to a document made by Lucy Potter on 18 October 2025. Lindsay intended that she would replace Brenda as litigation friend but did not pursue the application. The statement records Jim as saying that he did not gift Moonhills to Judith and put the house in her name for tax reasons. He also says that he is the true owner of the property. This is not the primary case now put forward by Lindsay.

Brian is the eldest child and was living in England in 1984 working as a handyman. He accepts that he had nothing to do with the purchase of Moonhills. He was adamant, however, that the property was bought as a gift for Judith so she could live there with her horses. He says that Jim intended it to be her property and he wanted nothing to do with the ownership of Moonhills for tax reasons. Many years after the purchase Judith said she would share the sale proceeds 5-ways when it came to sale and Jim said he trusted Judith to honour this promise. Brian made it clear his father did not want to own property in the UK and he was perfectly capable of putting the property in trust had he wished to do so. He was a “smart guy” and a “seriously successful businessman”.

Brian also described his father as having taken control of Moonhills after the purchase in 1984 “as he does with everything”. That description rings true of a person who had been successful in business who was accustomed to running his family’s affairs so far as they related to, in the broadest sense, family assets. Jim’s wish to control ‘family assets’ can be seen from the later proposals from 2004 onwards to transfer Moonhills out of Judith’s name.

Nicola Bisiker is Brian’s ex-wife. She has provided a statement with a hearsay notice. She lives in Dubai and was unable to attend the trial or find a convenient country from which she could lawfully give evidence by video link. She married Brian Bisiker in September 1984, just after Moonhills was purchased. She says that the property was bought with the intention that it would be a home for the three of them – Judith, Brian and her – and she was not aware of any trust arrangement. She recalls Jim saying that he wanted no financial interest in a property in the UK and “he was helping Judith onto the property ladder and assisting with a place for Brian and me to live.” They moved out of Moonhills in February 1987 but returned there for visits and holidays until 1991.

Heather adopted much of Judith’s statement albeit that she did not see a signed version before signing her statement. She accepted that she was not involved in 1984. She says she was never told by Judith or Jim that she was a part owner of Moonhills. Her understanding was always that the property was owned by Judith. On the other hand she said in an email in 2014 that Jim was the “real and rightful owner” of Moonhills.

Malcolm was 11 when Moonhills was purchased. He says in his statement:

“9.

I can say from multiple conversations over the years with Jim (while he had capacity) and Brenda that Jim did not want to own Moonhills himself. He did not want Moonhills either to be in his name or to be part of his estate except in the unlikely event that Judith was to predecease him, and for this reason he asked Judith to leave Moonhills to him by will (which I understand from her that she did) so that in those circumstances he could have decided what to do with it.

10.

Jim further had concerns that a UK property in his or Brenda’s name might cause him problems with the tax authorities (were he to be considered a UK resident, something he wished to avoid).

11.

Finally, he was aware both that Judith would be able to claim the personal residence relief upon any future sale for the period she occupied the house and also that it would be far more difficult, if not impossible, to raise a mortgage on Moonhills if he, as non-UK resident person, owned it.

…

14.

Based on multiple conversations with Jim and Brenda over the years, my understanding is that at the time of its purchase in 1984 they envisaged Moonhills being used initially to provide Judith (and indeed Brian) and their families in due course with a home and also them a holiday home in the UK, which they used whenever they wanted to for 37 years until their final visit in the summer of 2021, after which they became too elderly and infirm to travel from Canada.

…

17.

Throughout the 1980s and 1990s, Jim and Brenda visited Moonhills in the spring and summer months each year, and sometimes also for brief visits in autumn or winter. They also enjoyed travelling around the UK and Europe. Lindsay, while at boarding school in England, used to stay at the house at weekends but mainly returned home to Canada for the holidays (certainly the long summer one).

18.

Moonhills was always available as a holiday home or temporary base for all of us to use when we wanted to and we all made use of it at different times and in differing degrees.”

This period is significant for two reasons. First, Judith as the registered proprietor of Moonhills lived there for nearly 11 years until 1995. Secondly, there are no documents available until 2004.

When Moonhills was bought in 1984, neither Jim nor Judith could have foreseen how long she would live there. When considering whether a trust came into being in 1984, if Judith’s account is accepted and Moonhills was bought as her home, care is needed to avoid applying hindsight. She might have lived there for a short period or for several decades. On any view, her use of Moonhills as a home for herself and her family over 11 years lends some support to her case that the property was bought for her as her home.

Judith and Brian moved into Moonhills on completion of the purchase. A bank account was opened in their names which was funded by Jim. Extensive works were carried out to improve Moonhills paid for by Jim. This included creating the annexe initially as accommodation for Brian and Nicola. Brian lived there with his wife for about two years. The property which started as being rudimentary in 1984 became a comfortable home.

Judith formed a relationship with Tim Dunning. Their first child Amy was born while they were living at Moonhills. On any view it was their home. Members of the family came to stay. Jim and Brenda visited in the summer every year and sometimes at Christmas. Heather says she was a regular visitor in the early years and had her own bedroom. Jim and Brenda had their bedroom too. Other family members visited from time to time. Even after Brian and Nicola moved to Wales they visited Moonhills regularly.

Lindsay came to England to attend Hurtwood School as a weekly boarder in 1991 (7 years after the purchase). She lived at Moonhills with Judith and Tim at weekends and at half term and returned to Canada for school holidays. When she was in England Judith looked after her and Lindsay described Judith in this period as her surrogate aunt.

Lindsay says that Moonhills has been her home since 1991. It seems unlikely, although nothing turns on it, that she was living at Moonhills after leaving Hurtwood. Judith is clear that when she moved from Moonhills in 1995 Lindsay was not at the property. From that date Lindsay maintained a connection with Moonhills although she lived elsewhere at various times and for extended periods. After 1995 she lived for periods in the USA and Canada. Her case is that Moonhills always remained her ‘homebase’ and that she stayed at Moonhills for extended periods, looked after the property and spent her own money on repairs and improvements. It seems likely that she had a greater connection from 1995 onwards than any other member of the family. Visits from her siblings were rare.

Judith and Tim Dunning left Moonhills in 1995. They had identified a plot of land close to Moonhills and together they built a house called Forest Moon into which they moved probably in 1995. They sold Forest Moon in 1998 and moved to a property with 35 acres at Sway called Irongate held in Tim Dunning’s sole name.

Judith and Tim Dunning’s relationship broke down in 2004. Judith moved from the New Forest to Glastonbury. Then in 2012 Judith moved to live in Canada. By 2004 Judith had not lived at Moonhills for about 9 years but she was still resident in the UK.

The documents from 2004 to about 2015 are helpful because most are either letters or emails from Jim or records of his instructions to professional advisers. He had an ample opportunity during this period, in which no one suggests a diminution in his cognitive powers, to assert that he was the beneficial owner of, the property or Judith held it in trust. Lindsay does not rely upon any documents from this period.

Jim sought advice from KPMG on 21 June 2004 about Moonhills as it seems he was concerned about Judith’s tax position. In his briefing for KPMG he says:

“Judith bought Moonhills which I paid for in July 1984”.

He says he has paid virtually all the running costs and intended to place a charge on the property in the amount of £750,000 which would mitigate against stamp duty and CGT in the event of a transfer or sale. He goes on to discuss whether Moonhills could still be regarded as Judith’s principal residence for tax purposes. Notably he does not say he is the beneficial owner or that the property is held in trust by Judith either for the children or for Jim, Brenda and the children. His concern in 2004, and this is a consistent theme, was tax; not just his own tax position but that of Judith too.

A response to this letter has not been found although there is an email from Jim to KPMG dated 29 November 2005 which discussed again Judith’s tax position. He says:

“I guess her next move has to be the sale/transfer of Moonhills so that she can make her new home in Glastonbury her principal residence.”

On 10 August 2006 KPMG wrote to Jim and provided a draft report about the tax implications of Judith transferring Moonhills to Brenda. Their instructions do not refer to Moonhills being held on trust by Judith for the children or for Jim. The advice is provided on the basis that Judith was the beneficial owner of Moonhills and would be making a gift of it to Brenda. The issue for Jim seems to have been moving wealth around the family to its most suitable place to minimise tax. The draft report becomes a letter of advice to Jim dated 5 September 2007 which was copied to Judith.

On 25 October 2007 Jim was given advice about wills for him and Brenda by Robert Hart QC from which it can be seen that the possibility of a transfer of Moonhills to Brenda was still under consideration.

On 10 January 2008 Tom Hierlihy of KPMG sent an email to his colleague Briony Courtiour (copied to Judith and Brenda), following a meeting with Jim and Brenda, to discuss their proposal for Judith to transfer Moonhills. A query was raised about whether a charge had been registered over Moonhills in favour of Jim in respect of an interest free loan to Judith for the purchase of Moonhills and the cost of subsequent improvements. Such a charge would not be consistent with a trust in favour of the children.

On 22 May 2008 KPMG sent an engagement letter to Jim concerning work to establish his and Brenda’s UK residence and domicile position “with a view to reviewing options available to Brenda for holding Moonhills.” There is then a letter from KPMG dated 6 August 2008 that follows a meeting with Jim and Brenda on 29 July 2008. One of the issues discussed is the creation of an offshore trust to hold Moonhills. However, the premise of the advice appears to be that Judith would transfer the property by agreement with Jim and Brenda if asked to do so. Jim is maintaining a line that Moonhills was Judith’s, legally and beneficially, but would cooperate with a restructuring of family assets in light of the change in her circumstances.

In 2011 KPMG wrote to Jim and Brenda (at Moonhills). The letter records that:

“The property is owned by your daughter Judith, who has recently moved to Canada to establish her own business.”

“… you now wish to arrange for the property to be transferred out of Judith’s ownership either directly into Brenda’s name or into a trust structure if this is more tax efficient.”

“Judith is the current owner of the property …”. [my emphasis]

On 3 October 2012 a tenancy for one year to unrelated parties was granted in relation to the Annexe in which the landlord is described as “Bisiker Family”. It is signed by Jim and Brenda. Judith says she was unaware of the letting.

Jim sent an email on 28 June 2013 to a number of persons, including Malcolm, in which he refers to Judith as being the owner of Moonhills. He was seeking tax advice noting that Judith still maintained at that stage tax residence in the UK. He says:

“Also she is in fact the owner of Moonhills, the UK house from which I am writing this letter.” [my emphasis]

On 31 July 2014 Jim sent an email to Judith which considers whether Moonhills can be regarded as Judith’s principal residence for tax purposes. He records that Moonhills has always been in Judith’s name although he paid for the purchase. He notes that:

“2.

You were the original purchaser of Moonhills in your own name and were the principal owner I [sic] residence”.

Having noted Judith’s moves to other properties and her move to Canada he goes on:

“7.

I assume you cannot continue this UK filing in 2014. Thus Moonhills will become a 2^nd home that you lend to family members?” [my emphasis]

Judith replied copying in Brenda, Malcolm, Heather and Brian (but not Lindsay) saying:

“You have it in a nutshell!! Few!!” [sic]

Jim’s analysis in this email is inconsistent with the property being held by Judith on trust.

However, an email from Heather dated 24 November 2014 points in the other direction. She received an email from Alistair MacFarlane a solicitor with Dutton Gregory that records thoughts about “your family situation”. The context is clearly that advice has been sought about a transfer of Moonhills. Heather replied to the email inserting her replies in the original text. In her evidence she said she could not recall doing so but there is no reason to suppose that the email with her replies is not authentic.

She says “Yes” in answer to the question “As I understand it Moonhills has always been regarded as “family property” although for legal purposes it has always been in Judith’s name. Is that correct?”

She records that there is no declaration of trust. She ends her reply saying:

“As the real rightful owner of the property is James Bisiker: Is it possible to transfer the property to him without incurring UK CGT? This won’t solve the problem of the IHT in Canada but at least it puts it in the correct estate.”

By 2015 it seems a degree of disharmony was brewing between Judith and Jim and Brenda and a move away from the convention, as it had been expressed in the previous 10 year period, that Moonhills belonged legally and beneficially to Judith. By 2015 Judith had become resentful about the extent to which Brenda would benefit from Jim’s estate on his death (he was by then in his mid-80s) and later she had a concern that Brian was losing out.

There is a chain of emails which led to an email from Judith sent at 9:50 on 20 September 2015, in which she expressed curiosity about why Brenda and Malcolm felt that Brenda needed to be included in the ownership of Moonhills. Judith states

“My understanding is we are talking about 5 equal beneficiaries of dad’s estates after he is gone, with you having a life interest. Those beneficiaries are his 5 children.

Moonhilks [sic] is part of Dad’s estate.”

Jim responded at 11.09 am on 29 September 2015 saying:

“In my opinion there is nothing now that is really different re Moonhills’ ownership. My understanding is as follows:

Brenda has a life interest in Moonhills and on her or my death, depending on who is the last to go, the property should pass into a trust for the benefit of future generations.

On a different subject, I would also like it to be recognised that over recent years Lindsay has been in residence and in our absence has taken full responsibility for its care, upkeep and improvement.

And during this period most of you have not really been near the place much.”

Jim does not appear to be saying that Moonhills is already held in trust by Judith but rather that when he and Brenda are dead it will then be held in trust for future generations. This would involve the creation of a new trust.

Judith replied:

“I am not disputing the ownership of Moonhills. The fact that Linds is acting as care taker [sic] is irrelevant or who’s name the property should go in if it’s not in mine. I am however questioning why Malcolm and Brenda are wanting to add her name to a list of what was essentially your 5 beneficiaries after you are gone?

No one is planning on kicking Lindsay out of Moonhills nor will it be sold from under your nose.

This is a high maintenance estate and is expensive to run so tying things up of future generations to enjoy may not make good business sense in the long run but this does not need discussing now or while you and Brenda are still alive. To keep it as a holiday home for Malcolm and his kids is crazy!

Lindsay will eventually want to move on but we all love having her there and she’s doing a great job at restoring the property. I hope she has been reimbursed.”

In a further exchange of emails on 22 October 2015 Judith stated:

“I have every intention of honouring your wishes of the five children benefitting equally from your estate with Brenda and you having a life interest”.

October 2015 is about 20 years after Judith ceased to live at Moonhills.

On 29 February 2016, Jim sent an email which is the first document that is said in the particulars of claim to evidence the trust.

Judith replied saying:

“Moonhills will always be considered your home and I have every intention of honouring your wishes after you are gone” [my emphasis]

And when Lindsay enquired where this conversation was coming from, Jim replied:

“I would like to think there has been no doubt about this.

This exchange arose because the house is still in Judith’s name, and she holds it in trust for the family. [my emphasis]

However, there is at present no trust agreement per se at least to the best of my knowledge. [my emphasis]

We now need to safeguard the Moonhills’ ownership from any wrong moves.”

Jim subsequently explained that what he meant by wrong moves was:

“An example of “wrong moves” could be any attempt to sell or lease or mortgage the property without the proper authorisation”

Judith said in reply:

“Do you honestly believe is ever do that?” [sic]

To which Jim said: “… the answer is a categorical no, of course not.”

Putting this exchange in its context, Lindsay sent an email to Brenda on 25 January 2016 providing a list of expenses from the house and asking for payment by 29 January 2016. She said:

“I won’t be helping at Moonhills any further. I have charged a nominal fee for the number of hours I have put into redoing YOUR house and carrying out your business since being there.”

She later said in a text message to Judith in unequivocal terms in November 2022 that she had no interest in Moonhills.

“… I genuinely never considered I owned it I promise you that.”

As further context, Malcolm sent a message on 29 January 2016 summarising the tax advice that had been obtained from KPMG and Moore Stephens in which the main consideration appears to be the tax payable on a transfer by Judith. Jim replied thanking him for his thoughtful email saying:

“It makes it much easier us to hopefully to settle on an agreed plan of action.”

Yet more tax advice was sought from KPMG and on 26 August 2016 they wrote providing advice about the Canadian tax treatment that would arise for Judith “if she transfers legal and beneficial ownership of Moonhills to Jim in the near future.” The letter is addressed to Jim and Brenda and provides as background a clear statement that Jim “… gifted the property to his daughter, Judith …”.

Despite what Jim was saying in his emails to family members, he was instructing his tax advisers that Judith held the legal and beneficial ownership of Moonhills. It would have been open to him to say the property was held in trust by Judith for him or for the children, had he thought that to be the case. And there is certainly no indication that in looking at a restructuring there was a trust of the property that excluded him and Brenda.

On 16 November 2016 Simpsons (tax advisers) provided advice to Brenda based upon the following premises:

“Facts

•

Property purchased by Jim Bisiker for £150,000 in 1980.

•

Property gifted to his daughter, Judith, in 1984 …

•

Judith emigrated from the UK to Canada in 2012.

•

Property has been used as occasional residence by various family members from time to time.

•

Value estimated to be £2,000,000 at 6 April 2015

Intention

Mr and Mrs Bisiker senior are looking to agree that Judith transfers the property to other family members.”

These facts must have derived from information supplied by Jim. No one in a subsequent email said the premises were wrong. There is no indication of a trust having been created. In her closing submissions, Ms Holland suggests that the professional advisers were not properly instructed and made misassumptions. But Jim’s instructions are consistent over a lengthy period. Jim had an ample opportunity to correct the advisors’ factual summaries. There is no evidence that he did so. Indeed, the next step taken by Jim in his attempt to agree a change to the status quo included providing the children with the tax advice from Simpsons with the summary of the facts he had approved.

On 12 January 2017 Jim sent an email to all his children saying:

“Dear All,

As you know Brenda and I have been talking for some years about our wish to transfer Moonhills’ title.

We have been exploring options seeking an entity which includes all of our children’s names.

As time passes and we age, we are feeling some urgency about this.

As you all know in 1984 while Judith was still a UK resident, we registered the house in her name.

However, we are not now comfortable leaving the title in one person’s name because of possible tax and family issues and the fact that Judith is no longer a UK resident.

Especially as some of you aren’t getting along at present.

WE [sic] will do our best to draw up a contract but it would be helpful to receive ideas from each of you with issues you feel are important to cover.

Thus we have sought advice in both the UK & Canada re the tax consequences relating to changing of the ownership. Advice letters are attached.

…”

This is the second document that is said in the particulars of claim to evidence the trust. What is not made clear in the particulars of claim, however, is that the email incorporated the entire advice obtained from Simpson Associates on 16 November 2016, including the passages set out above.

On 16 January 2017 Judith sent a lengthy letter to her father (she describes it in an email sent the same day as a memo). The letter concerns the way in which Jim’s estate is to be distributed between his children and grandchildren and is based upon the premise that Judith, Brian and Heather are being treated differently to Malcolm and Lindsay. The letter does not mention Moonhills and is concerned with the wider picture. Judith’s email was sent the same day and thanks her father for getting back to her although his reply is not in the bundle.

Judith describes herself as taking a stand in relation to Moonhills and suggests that the stand is “… the only way Brian, Heather and I are able to safe guard [sic] ourselves from the greed and manipulation in the family …”. She goes on to say in a passage that is relied upon by Lindsay:

“If it make [sic]you feel reassured, my UK will leaves Moonhills to Heather and Brian who are instructed along with the executors of my Will to distribute the proceeds of sale equally five ways between your children once your estate has been fairly and equally settled between your five beneficiaries. My share of “Moonhills” is left to Amy and Emily.

As to Lindsay, it is time she stood on her own two feet and moved into one of own properties. I have no intentions of telling her this though as she is your daughter and obviously still very messed up otherwise she would be getting [on] with her own life in a more timely fashion.

Would you please address all of the issues in my memo and then follow up with a phone call?

Chat later I hope.”

Relations between Judith and Jim remained fractious. On 28 April 2017 Jim expressed concern about Moonhills remaining in Judith’s name. He said it was his intention to put the property into a company or a trust “… whatever scenario makes the most sense and is distributed equally among my 5 children.” He went on to say the property “rightfully belongs to me”.

Judith’s response makes it clear that she would not agree to a transfer of Moonhills “… until the entire estate has been settled.”

On 1 May 2017 Jim said:

“Dear Judith,

This letter is self-explanatory. And it is very important given the value of the Moonhills property.

As matters stand, Moonhills is in your sole name. And the property is a part of your estate (even though to the best of my knowledge you have no money invested in it.

…

This is not a good scenario …

This is truly not your property, and it is basically held in trust for the whole family, with Brenda’s and my use in our lifetimes”.

I see that Jim puts forward within the space of a few days two inconsistent positions. He says the property is his and then says the property is held in trust for the whole family, including him and Brenda. His driver seems to be to get the property transferred out of Judith’s name because she was no longer resident in the UK.

In her reply, Judith said:

“… all your children will be treated fairly and equally upon your death and for Brenda to be provided for during her life time. Dad you have said on many occasions that you trust me and that you know I will do the right thing when the times comes”

On 28 May 2017 Jim wrote:

“Dear Judith

I believe Moonhills is still effectively back in your name since you “seized” it recently.

I think I have already written you re this, But the bottom line is that it has to be immediately put back into a proper ownership, where it is legally protected, and with title probably in a trust or corporation.

You well know that you have absolutely no right to ownership of this property.

Admittedly when you lived in the UK it was in your name, but held in trust for the family and for tax reasons.

...

It is absolutely essential that you take immediate action to transfer the property out of your name….”. [my emphasis]

This is the clearest statement from Jim to date that he considered Moonhills to be held in trust by Judith for the family although it is unclear whether Jim intended ‘family’ to mean solely the five children or the seven family members. It is also unclear what he meant when he said that Judith had seized the property.

On 29 May 2017 Judith suggested to Brenda that Jim did not write the email dated 28 May 2017 to which Brenda replied – “You are wrong – your father certainly did write this letter.” In a further email to Brenda sent on the same day Judith made it plain that she would not be transferring the title to Moonhills to all of her siblings.

Nothing further happened until Jim wrote to Judith on 6 January 2018:

“Dear Judith

I again request … insist… that you take immediate steps to ensure that Moonhills is transferred out of your name.

If anything were to happen to you now we would be left in a very difficult position re its ownership and tax position.

…

It should be transferred into an entity that has been sanctioned by our tax advisers/accountants.

And Brenda and I should then have a life interest in it. And it should become part of our estate.”

Brenda and Jim then took advice from Louise Clark at Charles Russell Speechlys (CRS). In her letter dated 7 May 2019 (over which privilege is not claimed) she provided what she described as “high level advice”. She did not have the benefit of knowing what Brett Johnson had to say about the purchase. She advised that Judith was a bare trustee and holds the legal title on trust for Jim, and possibly for Brenda too.

By August 2021 a restructuring plan (the Trident Plan) had been drawn up by a family friend, John Palmer, which was based upon the premise that Judith held Moonhills in trust for Jim and would transfer the title to a new Canadian trust. In October 2021 there was a family meeting at which Judith said she was “… happy to do whatever anybody wants me to do with Moonhills provided I am not in a financial pickle.”

In July 2022 Heather described Judith as the “guardian” of the property. On 13 December 2022 Judith described Moonhills in an email to Lindsay as “… an asset that is shared with four other beneficiaries so they would be entitled to 1/5^th of the income, after taxes and expenses.”

From the end of 2022 correspondence passes between solicitors acting for Judith and Lindsay. On 20 December 2022 CRS, by now acting for Lindsay, wrote objecting to proposals to sell Moonhills. They said:

“Moonhills is the Bisiker family home in the UK. It is a family asset held on trust…”.

CRS do not say at that stage what the terms of the trust were and who were its beneficiaries. They later asserted in a letter dated 1 February 2023 that Moonhills was held in trust for Jim and Brenda. It was not part of Lindsay’s case at a time immediately prior to steps being taken by Judith to obtain possession that Lindsay was a beneficiary under a trust. If as seems to be the case her main driver was to establish a right of possession, it was necessary for her to put that forward as her case.

Later in their letter of claim dated 14 August 2024, Hamlins who were by then acting for Lindsay, asserted that Judith held the property on trust:

“… for the beneficial interest of all 5 children and Jim and Brenda in equal shares, each of whom (together with Jim and Brenda) had a right to occupy the property. The Property was to be used and/or occupied by any member of the family at any time and has always done so. [sic] Your client has always been a bare trustee and held the beneficial interest in the Property on the terms of a common intention constructive trust.”

Lindsay relies upon a letter from Judith’s solicitors, Dutton Gregory, sent on 10 January 2023 to CRS who by then were acting not for Jim and Brenda but for Lindsay. They said:

“… can I stress at the outset, that my instructions relate solely to the issues surrounding the Property, a property of which my client, Judith Bisiker, has been the sole registered proprietor since 1984. It is of course a property which is outside the Family Trust although the stated intention of Mr Bisiker Snr and indeed that of Judith Bisiker is that when the property is sold each of Jim’s 5 x children should receive an equal share.

…

Since Judith acquired title to the Property almost 40 years ago, the understanding right across the family has been that the Property was to be retained for use as a summer residence for Jim Bisiker and your client’s mother Brenda. Other members of the family, including your client, would have the ability to the use the Property the family’s holiday residence without let or hindrance. The unspoken agreement was that Jim Bisiker would pay the outgoings, subject to a fair contribution (depending upon usage), from other members of the family.

As such, whichever family member has occupied the Property from time to time, has done so not as a tenant but simply as part of this family arrangement. They have never been expected to pat [sic] rent and at no time has any single members of the family been given exclusive possession…”.

Lindsay also relies upon a transcript of three phone conversations between her and Jim. Two took place on 13 January 2023, one on 2 February 2023 and one on 8 March 2023. They are in fact excerpts of the calls. Lindsay’s friend Harriet Brown was present during the conversation on 2 February 2023 and says that Jim answered Lindsay’s questions in his own words. The transcripts principally concern two matters. First, Lindsay’s concern about the level of financial support Malcolm was receiving from Jim and Brenda. Secondly, she sought Jim’s confirmation, which she obtained, that he did not want Moonhills to be sold. Jim said:

“It’s always been a family home.”

Lindsay asked what Jim would say if Judith told him she was selling Moonhills. His response was:

“I’d say it’s not yours to sell.”

I note that Jim said in response to Lindsay suggesting that Brenda had said he lacked capacity:

“I think I’m still pretty capable of making reasonable decisions”

On 26 February 2023 Jim and Brenda signed letters addressed to Judith confirming their agreement to Moonhills being sold on the basis that:

“Any family member interested in owning Moonhills will be given an opportunity to purchase it at a price that is fair to all my children.

The proceeds from selling Moonhills, whether to one of my children or to a third party, will, net of taxes and expenses, be paid in equal amounts to each of my children.

The closing date for the sale will allow Brenda and me to visit Moonhills one more time this summer.”

On 1 February 2023 Dutton Gregory acting on behalf of Judith gave notice to Lindsay to vacate Moonhills on or before 7 March 2023. She took possession back on 28 April 2023 at a time when Lindsay was not present at the property.

I will next address issue 5 in the list of issues, namely whether Jim had capacity to make the statement dated 22 May 2023.

As I have mentioned previously, the statement in question was made on 25 May 2023. That is the date recorded on the statement when the notary confirmed it was signed in his presence. It is common ground that by 2023 Jim had suffered a degree of cognitive decline.

Brenda expresses the view, which of course is her non-expert opinion, that Jim could not have prepared or comprehended the statement dated 19 May 2023. Brenda also says that in 2025 Lindsay took initial steps to replace her as Jim’s litigation friend. Lindsay rang by arrangement with Brenda and asked Brenda to leave the room. Lucy Potter spoke to Jim and later prepared a document dated 18 October 2025 which is described as an Updated Statement of Wishes and Feelings based upon the conversation, videos, transcripts and evidence provided by Lindsay.

Brenda says there are further occasions when Lindsay has got Jim to sign documents after speaking to him.

Judith provides her own assessment of her father’s decline and Malcolm generally supports Judith’s position but says he does not entirely share her assessment with regard to the timing of the onset, or speed of development, of Jim’s dementia-related symptoms. He had more frequent contact with Jim and Brenda seeing them about every week and is in a good position to assess the decline.

Lindsay’s evidence is that Jim has been marginalised. She does not accept that Jim has lost his capacity. She says, based upon her medical evidence, that Jim has suffered mild cognitive decline and is able to express his wishes. She relies upon transcripts of conversations with Jim in which he expresses views about Moonhills. Kay Mitchell and Harriet Brown witnessed some of those conversations and they support Lindsay’s evidence that Jim was not put under pressure and was able to express his wishes about Moonhills. The ability to express wishes is not the same as having the capacity to conduct a claim or to make a statement relating to a dispute.

Despite making repeated assertions about Brenda’s role as Jim’s litigation friend, Lindsay did not, until the PTR, make a formal challenge by bringing an application before the court seeking an order to remove her and permitting Jim to conduct a response to the claim on his own account. She came close to making the application, by issuing an application notice without paying the court fee, but she failed to pay the fee and the application lapsed. Her ‘miscellaneous’ application that was listed for hearing at the PTR, amongst other relief, sought an order that if Jim lacked capacity an independent solicitor should be appointed as his litigation friend. That part of the application was dismissed. The entire claim has been conducted on the basis that Jim lacks capacity to conduct litigation himself based upon the report from Dr Shulman produced in 2023.

Before tackling the issue of capacity to make the statement dated 25 May 2023, I will first describe the background to its making and then look at the statement itself. As to the former there are some issues of fact which need to be determined and to put it in its context it is necessary to look at the two other statements made by Jim at Lindsay’s behest at about the same time.

Brenda and Malcolm provide evidence, which has not been challenged, that in the latter part of 2022 Lindsay interfered with Jim’s care plan. She went to Canada, took advantage of Brenda being in hospital, and sought to take over control of arrangements for Jim’s care. Amongst other steps, she removed Jim from his home. Letters were sent to Lindsay on 25 and 26 October 2022 by Bales Beall LLP, lawyers instructed by Brenda, requiring Lindsay to (i) return Jim to his home, (ii) herself return to the UK and (iii) not to visit Jim further. Jim was duly returned to his home and to the care arrangements that Brenda had put in place. This all took place some months before Lindsay was excluded from Moonhills but at a time when an issue about its future had developed with Lindsay on one side of the argument and the rest of the family on the other. Lindsay was seeking support from her father.

Brenda’s evidence, which I accept, is that she was aware of subsequent regular conversations between Jim and Lindsay which followed a consistent pattern commencing with Lindsay setting out her grievances and making negative comments about members of the family. This elicited an emotional response from Jim who then provided answers to Lindsay’s questions that were based upon sympathy for her.

On 28 April 2023 Judith took possession of Moonhills and excluded Lindsay. This occurred after there had been negotiations for Lindsay to buy the property. A price was not agreed and Judith sought to bring matters to a head. The extent to which Lindsay was living at Moonhills and whether it was truly her home are in issue in the claim; but on any view she had a long-standing connection with it and wished to maintain that connection despite being the owner of a substantial property near Moretonhampstead in Devon and renting a house, Owl Barn, in the Cotswolds.

In the immediate aftermath of the events of 28 April 2023 steps were taken, that are quite separate strands, leading to Jim’s capacity being assessed twice and to the production of three statements signed by Jim. Two statements are dated and signed by him on 19 May 2023 (a longer and a shorter one) and one was signed on 25 May 2023. The signature on all three was authenticated by a notary. For that to have happened the notary would have needed documents to identify Jim. It will be simplest to refer to the three statements from here on as statement 1, 2 and 3.

Following the incident when Brenda was in hospital Brenda had been advised to have a capacity assessment undertaken for Jim and, after consultation with family friends and lawyers, an arrangement was made for Jim to be assessed by Dr Richard Shulman at home on 12 May 2023. His report is dated 8 June 2023. This is well after statements 1, 2 and 3 were signed by Jim.

On 18 May 2023 Lindsay arrived unexpectedly at Jim and Brenda’s home and told Brenda she was going to take Jim for a drive to his old house at Port Credit. Brenda is clear that she was unaware of Lindsay’s intention to take Jim to be assessed by Ms Johnson, an assessment which had been organised by Payne Hicks Beach in London. She did not provide Lindsay with Jim’s ID documents. It is not clear how Lindsay got hold of them. On 19 May 2023 Lindsay took Jim to a notary for him to witness Jim’s signature on statements 1 and 2.

I accept that Brenda was wholly unaware of Lindsay’s proposal to arrange a capacity assessment for Jim and had no hand in and was unaware of the preparation and signature of the three statements. All of this was carried out by Lindsay behind Brenda’s back using a degree of subterfuge.

Lindsay’s case is that the statement 1 was drafted by James Dickinson, her lawyer in Jersey, and was looked over by her lawyer in London, Jessica Henson at Payne Hicks Beach. She said James Dickinson had spoken to her father and obtained information from Michael Cash and John Palmer. “Dad was horrified [about possession of Moonhills being taken] and he expressed that to the lawyer.” There is no suggestion that Jim had his own independent lawyer involved in the process. The notary is very clear that he had not provided advice.

Although statement 1 is not relied upon by Lindsay, and the court is not required to decide whether Jim had capacity to sign it, it is important in its own right. It is relatively formal and reads like a statement written by a lawyer although it does not follow the established practice under the CPR of explaining the process by which it was made. There is no indication of which documents were considered.

The statement is carefully drafted with numbered paragraphs and is well structured. It provided a way for Jim to express his “wishes and position” and on the basis that his views and wishes are not being taken into account (paragraphs 2 and 3). It then goes on to comment upon what is described as the “family restructuring exercise” being led by John Palmer and then turns to make some observations about Moonhills. It contains (a) facts about the purchase of Moonhills, (b) an expression of wishes about Moonhills not being sold or if sold that the sale should be to a family member and (c) an expression of displeasure about members of the family having hatched a “plan” (the word is italicised in the original) to remove Lindsay from Moonhills. It is notable that when dealing with (a) Jim does not say in statement 1 that Moonhills is held in trust by Judith. He merely says it was purchased and maintained using his money, that Judith was made legal title holder “essentially as a matter of convenience” and later:

“5.3

I have always wanted Moonhills to be treated as a family home. When Moonhills comes to be sold … I want the net proceeds to be shared equally between the Children”.

It is remarkable that two firms of lawyers were involved with its preparation with both firms being aware that Jim’s capacity was in question without them ensuring that some safeguards had been put in place. The statement must have been prepared before those who drafted it were aware of the outcome of the assessment by Ms Johnson because paragraph 1 of statement 1 refers to the assessment on the previous day. Yet Ms Johnson’s report addressed to Jessica Henson at Payne Hicks Beach is dated 23 May 2023 and so could not have been seen before the statement was finalised and signed on 19 May 2023. The reference in paragraph 2 of statement 1 to the assessment could only be based upon an oral report from Ms Johnson. There is no evidence from Mr Dickinson or Ms Henson about how the statement came into being nor evidence from the notary about its signature.

On the same date as statement 1, Jim signed in front of the Notary statement 2. It deals briefly with improvements to Moonhills, Lindsay’s money contribution to them and (inconsistently with Lindsay’s amended claim) he says:

“As you all know, I have always seen Moonhills as a “family” home and gathering place & one where Brenda and I have rights of habitation and possession for our lifetime.

Protecting this heritage for all of my children is of prime importance to me.”

Lindsay says she worked on statement 3 with her father. There were no lawyers involved. It describes itself as an “Abbreviated statement of James Phillips Bisiker (revised from longer statement)” but it is in fact longer than statement 1. It is not set out in numbered paragraphs and is drafted in a more narrative and less formal style. The need for statement 3 from Jim’s point of view is not clear. Lindsay did not provide a comprehensible explanation for its production.

Statement 3 is an odd document. The careful structure of statement 1 has been discarded and statement 3 is much harder to follow. The language has been changed and extended. And it contains emotional observations at various points such as:

“… perhaps no one cares about my views and wishes. This hurts me.”

“I feel I am being marginalised due to me perceived lack of capacity and age.”

“It gives me grave concern that the Byfleet Trust restructuring process has turned into a financial exploitation of my estate ….

“Improper use of money, greed, sibling rivalry, improper use of legal power and control is not how I have ever governed or managed the assets within my estate. It is not my wish to see this happen now.”

As to the comments about Moonhills there are significant differences between statements 1 and 3.

Then, after making the observations about improper use of money, the following new words are added:

“I have always held in good faith that Judith is holding Moonhills in trust for the family after I had purchased the property in 1984.”

Although statement 3 is relied upon by Lindsay as providing evidence of a common intention trust, or a declaration of trust, it says two contradictory things: first, that Moonhills is Jim’s property; secondly that Moonhills is held in trust for “the family” and/or that the children have a beneficial interest. Statement 3 is not sufficiently precise to amount to a declaration of trust in favour of the children. And, further, it provides little or no support to Lindsay’s amended case as it was put at the end of the trial that Moonhills is held in trust for the children.

I have observed that the drafting style of statement 3 is very different to that of statement 1. It is not an abbreviated version. It is dated in typed form 22^nd May 2023 and says it was made at Jim’s home 37A Elm Avenue Toronto, whereas the notary records it being signed at “Toronto Ontario” which might mean it was signed at Jim’s home or at the notary’s office.

The circumstances in which statements 1, 2 and 3 were made excite the interest of the court and raise questions about their provenance, to which no answers have been provided. However, the issue before the court is only as to capacity.

Dr Shulman is plainly a highly qualified and experienced doctor in the field of geriatric psychiatry. He was instructed by Bales Beall LLP to evaluate Jim for his capacity to:

gift;

sign/revoke a Will;

sign/revoke Continuing Power of Attorney for property;

sign/revoke Power of Attorney for personal care;

The report is thorough and starts with an analysis of medical notes made by his predecessors and the tests they carried out. He notes that Jim produced an MMSE (mini mental state examination) score of 17 in April 2022 then 19 in October 2022. He describes the MMSE test as being primarily one of memory and language. It does not assess executive functioning and decision making. Scores of between 18 and 25 are suggestive of mild dementia; scores of 10 to 17 suggest moderate dementia and scores of less than 10 suggest severe dementia.

Dr Shulman used for the purposes of his report a different test, the Montreal Cognitive Assessment (MOCA) which was developed as a brief cognitive screening instrument. The cognitive domains assessed include visuospatial skills, executive functions, memory, attention, concentration, calculation, language, abstraction and orientation. A score below 26 on the MOCA is considered a positive screen for mild cognitive impairment. A score under 20 out of 30 is commonly seen in patients with mild dementia, and under 15 in those with moderate dementia. Jim produced a score of 13.

Dr Shulman provides an opinion in relation to each of the topics forming the basis for his instruction and concludes that for each proposed action Jim lacks capacity. As to Jim’s capacity to manage property, Dr Shulman’s analysis has two parts:

Dr Shulman goes on to express the opinion that:

“In my opinion, Jim is not capable to revoke and appoint a continuing power attorney for property. Also, Jim has severely diminished ability to learn and recall information which places Jim at significant vulnerability to undue influence and/or risk of elder financial abuse with an appointment of a new continuing power of attorney for property.

In my opinion, Jim is not capable to revoke and appoint a power attorney for personal care.

In my opinion, Jim does not satisfy the Banks v. Goodfellow criteria for testamentary capacity and does not have a disposing mind and memory.

In my opinion, Jim does not have capacity to gift and is highly vulnerable to undue influence due to the extent of his severe cognitive impairment.”

The report also considers undue influence which is not an issue in this claim. However, significantly Dr Shulman says:

“In my clinical opinion, Jim is sufficiently cognitively impaired that he may not be able to resist attempts of undue influence or subversion of will and is highly vulnerable to undue influence to impact any change to testamentary decisions, Power of Attorney documents or gift giving.”

Ms Johnson produced three reports dated 23 May 2023. She is a social worker who is authorised to perform assessments of mental capacity for personal care and financial decision making and she also conducts assessments in relation to other forms of capacity. The reports deal respectively with Jim’s capacity to enter into a contract, his capacity to revoke a power of attorney for property and to revoke a power of attorney for personal care. Her conclusions are substantially at odds with those of Dr Shulman.

The reports were produced following a meeting with Jim at her offices on 18 May 2023. They follow a similar format. The report relating to capacity to contract is the most pertinent because the contract she appears to be considering is a contract regarding Moonhills. She says:

“I told Mr Bisiker I was meeting him at the request of his daughter, Lindsay Bisiker, and her lawyer to determine whether he is able to enter into a contract. I told him that if he were found capable, he would be able to analyse the contract his daughter and her lawyer had drawn up and decide if he wished to sign it. I explained that if I found him incapable, he would be unable to sign the proposed contract.”

She later says:

“Lindsay Bisiker, through her British lawyer, has drafted a contract regarding Moonhills Lane – its ownership, the process of its sale, and other relevant issues concerning the property.”

She then defines what is meant by a contract as an agreement that gives rise to enforceable obligations and refers to the presumption under the Substitute Decisions Act 1992 that a person is capable of entering into a contract unless there are reasonable grounds for believing the person to be incapable.

She describes Jim as being alert throughout the one and a half hour interview and that he attempted to answer all her questions. She says he exhibited adequate processing speed, the ability to organise and sequence information and adequate problem solving and reasoning. Ms Johnson describes getting Jim to count backwards from 20 and to name the months of the year backwards. She did not undertake any more formal tests such as those described by Dr Shulman and did not have the opportunity to consider Jim’s medical records including previous tests.

The report sets out extracts from their conversation about Moonhills, about the restructuring plan and about the possibility of selling Moonhills. Ms Johnson concludes:

“In my opinion [Jim] does have the ability to comprehend, and rationally manipulate information needed to understand the nature of the contract and the contract’s specific effect in the circumstances. He, therefore, does have the capacity to contract.” [emphasis in the original]

I note three important points:

Lindsay has also produced reports about capacity from Lindsay Ferguson dated 3 February 2026, from Rena Postoff dated 11 April 2026 and from Professor Vanessa Raymont dated 18 April 2026. Professor Raymont merely comments upon the previous reports. The report from Lindsay Ferguson is based upon a briefing provided by Lindsay and does not address at all whether Jim’s memory is affected by his age or condition. No tests were carried out and previous medical records were not reviewed. Despite this Lindsay Ferguson expresses the opinion that Jim possesses the capacity to understand and appreciate decisions relating to the management of the Moonhills property and he demonstrated:

Awareness of the current litigation

She expresses the opinion that Jim has capacity to enter into a contract (no specific contract is mentioned), capacity to grant or revoke a power of attorney and there was no evidence of undue influence or coercion.

The report from Rena Postoff was preceded by a highly tendentious briefing by Lindsay and was interrupted part way through.

I do not find any of these additional reports to be of real assistance and reliance upon them was not pressed by Ms Holland.

Jim is resident in Canada and questions of capacity therefore fall to be determined in accordance with Federal or Provincial law in Canada. However, neither party has produced any evidence of foreign law and therefore this court proceeds on the basis that the laws of England and Wales are the same as Canadian law – Brownlie v FS Cairo Nile Plaza [2021] UKSC 45.

I start by dealing with the burden of proof.

In Kicks v Leigh [2014] EWHC 3926 Stephen Morris QC (sitting as a Deputy Judge of the High Court) considered two issues:

Upon whom the burden of proving incapacity lies.

His conclusion about the correct test was:

“63.

As indicated above, this is an issue which has given rise to differing judicial views and I have not found it easy to resolve. Nevertheless in my judgment, the correct approach to a post-MCA inter vivos gift is to apply the common law principles in Re Beaney rather than those set out in s.2 and 3 MCA 2005.”

As to the burden of proof he said:

“… I apply the approach to the burden of proof identified in Gorjat v Gorjat. With the exception of Sutton v Sutton where (at §18) there was no reference to the possibility of the evidential burden shifting to the party asserting capacity, the authorities all seem to support the proposition that whilst the legal burden is on the party asserting incapacity, if that party adduces evidence to raise a sufficient doubt from which incapacity can be inferred, then the evidential burden shifts to the opposing party: see also Scammell v Farmer at §24 and Bray v Pearce at §74.”

As to the general principles that apply to capacity, I can gratefully adopt the compendious summary provided by Stephen Jourdan QC sitting as a Judge of the High Court in Fehily v Atkinson [2016] EWHC 3069 (Ch) at [76] – [81]. No case has been cited to me concerning capacity to make a document similar to statement 3 which is not a contract although statement 3 is relied upon as being a declaration of trust or a disposition of his beneficial interest.

Capacity is specific to a transaction or activity and to a date. Capacity to make a statement is clearly different from capacity to enter into a contract, or capacity to marry and so on. The capacity to understand a contract or a document that amounts to a disposal is rather different to making a statement which records memories, expresses wishes and comments upon family behaviour. An indication of the difference can be seen from the fact that although a contract may contain complex provisions, it is usually possible to provide a precis of the effect of contract or a disposal. The precise words used in a contract of this type are of less importance than the ability to understand the intended outcome. There will of course be key provisions in a contract such as the financial obligation, the length of the commitment and the ability to terminate (if any). In considering capacity to enter into a contract, the court is looking at the ability to understand and evaluate an outcome that can be summarised. Whereas a statement may, as in this case, involve memory, an explanation of past statements and past events, the meaning of previous words used, sentiment and wishes. The ability to understand all the words used is essential. Linguistic nuance in a statement providing evidence can be highly material. There is a significant difference between saying on the one hand “We treated Moonhills as a family home” and on the other hand saying “Moonhills was held in trust for the family”. It is unlikely that a meaningful precis of a witness statement of any length and dealing with more than one issue can be provided.

There is then the need for the statement to use as far as possible the witness’s words. In circumstances in which there is recognition of reduced cognitive ability, capacity needs to be measured against the entire statement. It would need to be demonstrated that the maker of the statement was likely to have the ability to recall long past events in a way that is not influenced by later events and desired outcomes. The fallibility of memory has already been discussed. The notion that Jim’s recollection of events that took place nearly 40 years previously, without recourse to any documents, can be regarded as reliable is very doubtful indeed. An assessment of Jim’s ability to make a statement that is dependant, at least in part, upon recollection of events would need to consider precisely what he was being asked to recall and to express a view about his capacity to provide accurate recollections. And it is necessary for the court to be satisfied that Jim had the ability to express opinions and wishes in a manner that provides a balanced view rather than one that is influenced by the last person he spoke to.

The burden of proof is mobile; Jim is presumed to have capacity to make statement 3 unless the contrary is shown. At this stage Lindsay does not need to rely upon the evidence from Ms Johnson. However, if a party challenging capacity raises sufficient doubt about capacity, the burden of proof shifts back to Lindsay.

The opinions of the lay witnesses are not irrelevant but the court needs to be cautious about giving them too much weight although I note that all the family other than Lindsay are of one mind on the subject. The two principal medical reports (treating Ms Johnson’s reports as one for this purpose) reach conclusions that cannot be reconciled. Dr Shulman, although he does not address the question that is raised in issue 5, deals with a wide range of other issues. He considered previous medical records and previous tests and undertook his own test for dementia. The results of those tests, which have not been challenged, suggest strongly that Jim was suffering from moderate dementia in May 2023.

Ms Johnson also does not express an opinion about Jim’s ability to make a statement. She opines about his ability to enter into a contract. It seems very unlikely that she had seen “the contract” because she would not have described it as such had she been aware of its nature. She seems to be under the impression that the document Jim was being asked to sign was a contract rather than a statement containing information of a historic nature, Jim’s wishes and his comments about the family. It also seems more likely than not that the ‘contract’ under consideration is statement 1 for the reasons I have already given. She does not provide support for capacity to sign statement 3.

Lindsay relies on the third statement as providing evidence of Jim’s intentions deriving from 1984. It is impossible to believe that had either Dr Shulman or Ms Johnson been asked whether, in light of Jim’s age and condition, he could, influenced by the recollections of others and without access to documents, reliably recall his thinking in 1984 they would have lent their imprimatur to the statement. His recollection of long past events would involve him being able to put himself into the same state of mind he had in 1984, despite the passage of time and Judith’s fundamental change of circumstances. This is a completely different matter to Jim expressing opinions about his current wishes based upon his natural desire for his family to be at peace and for his children to be treated equally.

In my judgment the initial assumption about Jim having capacity is displaced by Dr Shulman’s report. He raises very significant doubt about Jim’s capacity to sign statement 3 and Lindsay’s evidence does not come close to discharging the burden on her. The evidence of the experts has not been tested but it is obvious that Dr Shulman’s approach is much more thorough and evidence based. By contrast, Ms Johnson’s report and the other reports are relatively superficial. Ms Johnson’s opinion was misdirected in the sense that she thought her role was to assess Jim’s capacity to enter into a conventional contract.

I indicated previously that the circumstances in which statements 1, 2 and 3 were created and signed excite concern. It is of note that statement 1, which was produced and probably drafted by lawyers, did not provide support for Lindsay’s case that a trust came into being in 1984 whereas the statement she drafted (in circumstances that have not been explained) does provide some, albeit internally inconsistent, support. The statement says nothing about the methodology that was used and why there was a need to produce an ‘abbreviated statement’ in a looser form that is longer than the carefully crafted earlier version. The court would need to be satisfied that Jim was capable of understanding why an additional document was produced and the need for it to have different content to statement 1. It bears repeating that the court is concerned with Jim’s capacity to sign a document that is multi-faceted, nuanced in its use of language and internally inconsistent.

I determine Issue 5 on the basis that Jim lacked the capacity to make statement 3. I would add that, disregarding capacity, I would place little or no weight on statement 3 because it does not provide a consistent view about Jim’s understanding of the position. As I have pointed out, the property could not both be held on trust for Jim and on trust for the family.

The task for the court is to establish on the balance of probabilities what Jim and Judith agreed or what their common understanding was in 1984 by reference to evidence from 1984 and from later evidence, to the extent that it casts light on that intention. The claim has narrowed following the amendment to the particulars of claim and my conclusion about Jim’s capacity to make the statement dated 25 May 2023.

Lindsay’s case now has two alternatives. The primary case is that there was an agreement and/or a common intention that Moonhills would be held on trust by Judith for the five children, subject to Jim and Brenda’s right of occupation. The secondary case is that the property was held on a resulting trust for Jim on the premises set out in paragraph 4 of the amended particulars of claim, which I take to be a reference to payment of the purchase price by Jim and Jim’s intention that the property would be a family home.

The initial focus must be on 1984 and to what, if anything, Jim and Judith expressly agreed or what common intention can be derived from the words they used. If there were no words of agreement or identifying a common intention, can a common intention of sufficient certainty be inferred from their conduct, and that of family members, at the time and later? There is no reason why evidence of a trust should not emerge until many years after the purchase and this is the way in which Lindsay’s case is pleaded. I have in mind however the warning by Lord Phillips MR in Lavelle that the court must be cautious of self-serving statements made later which may indicate regret at what was done. Where there is evidence from around the time the transaction took place, or in a period close to it, that is likely to be of greater force than evidence that emerges in a much later period when much has changed in the lives of the principal parties over a period of 42 years.

Jim’s motives for acting as he did in 1984 were mixed and they are not entirely possible to reconcile neatly. Caution is needed when looking both at oral evidence from 1984 and what was said more recently at a time when there was family disharmony. Later evidence may reveal an agreement or understanding going back over many years; but it is also possible that decades later members of the family ceased to be able to view the position through the 1984 lens. Jim’s attitudes and approach to family finances were not the same in 2016 and subsequently as they had been in 1984. By then the value of Moonhills had increased greatly, Jim had spent a substantial amount on renovation and running costs and Judith had long ceased to regard Moonhills as her home. She left Moonhills to live elsewhere more than 20 years before the exchanges from 2015 onwards.

The evidence relating to 1984 is made up of several elements from which the following facts can be extracted:

Jim was wealthy and inclined to be generous to his family.

The two younger children, Malcolm and Lindsay, were aged 10 and 9.

As a matter of common sense, there must have been some communications between Jim and Judith at the time about the purchase. She could not have become Mr Johnson’s client without Jim speaking to her and they must have had conversations about the house she was intending to live in. Judith had some uncertainty about what was said at the time of purchase and what was said later. Given the passage of time this is unsurprising. Brenda’s evidence chimes with the evidence provided by Mr Johnson and Viscount Kemsley. I do not consider that Brenda’s evidence supports the existence of an agreement to hold Moonhills on trust.

Mr Johnson provides evidence of what Jim said to him; that he did not want his estate to include Moonhills when he died, and he trusted Judith to pass the proceeds to the children. It was this that prompted Mr Johnson to advise about making a declaration of trust, an idea that was rejected by Jim. Judith’s evidence, on balance, lends support to her case that no trust came into being. I consider it is right in this case to accord considerable weight to Mr Johnson’s evidence. He provides good reasons for remembering the transaction and is candid about what he remembers and what he does not.

The parties ask the court to treat Jim’s intentions and motivations to be found or inferred as being binary; he intended there to be a trust or there was no trust. Although the court must reach a conclusion one way or the other on this issue, Jim’s motivations were complex. It is clear that he wanted to buy a home for Judith that could be shared with Brian. He wanted Judith to get on the property ladder. Moonhills was a much more substantial property than was appropriate for a 21 year old, but here Wendy Neilson’s evidence rings true. She could recall Jim asking her to find a house for them when they first married for $15,000 but ended up buying one for $42,000. It must have been clear to both Judith and Jim that the house was large enough to fulfil its primary function and provide a place for the family to visit and stay from time to time. Moonhills was from the outset both Judith’s home and in a loose sense Bisiker family property. Jim invested substantial sums in the property to bring it into a modernised state to fulfil both functions.

As to beneficial ownership, as I have said previously, Jim was highly motivated by tax considerations and this is a consistent theme. He did not want to be either the legal or beneficial owner of Moonhills. In his later dealings with his tax advisers he consistently briefed them in the period from 2004 onwards on the basis that Moonhills is owned by Judith. He might have felt privately that he had an expectation that Judith would behave in a particular way but that is some distance from there being a trust.

The events that followed on from the purchase point towards Jim’s objectives being achieved. Jim did not own an interest in property in the UK. Brian was able to live at Moonhills until Jim had sorted out an alternative for him and his wife. The family was able to use Moonhills for holidays and for visits. Judith and Tim Dunning lived at Moonhills for 11 years. It is possible to lose sight of how long that period was in view of the entire chronology. They lived there as their home over an extended period subject only to family visits. It is significant that Lindsay stayed with Judith whilst at boarding school. Judith looked after Lindsay in her home.

There were subsequent events leading to a gradual change in Jim’s view about Moonhills. In the third period Jim sought advice about Judith’s tax position in light of her separation from Tim Dunning on the clearest possible basis, namely that the property was Judith’s. Jim did not suggest when briefing his tax advisers that he had a right to require Judith to transfer the property. Jim would have no reason to hide from his tax advisers the existence of a trust in favour of the children. He might, however, have been cautious to reveal that he was the true owner of Moonhills as he later claimed. Jim’s understanding in 1984 that there was no trust is reflected in the correspondence from 2004 to 2014. By that date, 30 years had passed since the purchase and 19 years since Judith left Moonhills to live elsewhere. In that intervening period Jim and Brenda had continued to use the property and Lindsay’s connection with it had grown. Jim continued to pay for all the expenses.

It is unsurprising that Jim’s view about Moonhills changed by about 2015. He was older, wishing to plan for the family on his death and Judith’s connection with the property had almost ceased altogether. What had made sense to him in 1984, had ceased to make sense beyond 2015. Jim expressed concern about the adverse tax consequences that would result if Judith were to die with the property still registered in her name.

Jim was prompted to look at tax efficient ways of transferring Moonhills out of Judith’s name, and into Brenda’s name, without any of the proposals reaching fruition. It is material that in his dealings with tax advisers over an extended period he did not say that Judith held the property on trust. By 2015 the position was anomalous with Judith having no real interest (in a non-legal sense) in Moonhills but retaining beneficial ownership. Judith was concerned about Brenda being included in the ownership of Moonhills and in September 2015, Judith referred to the five children being equal beneficiaries of Jim’s estate and that Moonhills was part of his estate. Jim’s reply does not say that Judith holds the property in trust for the children but rather that on his or Brenda’s death the property would pass into a trust for the benefit of future generations. In this context, Judith’s remark that she was not disputing the ownership of Moonhills is equivocal. At around the same time she accepted the moral case that the value in the property on sale should be passed on to all the children.

Even in January 2016 Jim was writing to Judith and her siblings providing tax advice about the effect of a transfer out of her name without any suggestion that she held the property on trust.

Jim’s line was not consistent. On 28 April 2017 he said the property was his. Then on 1 May 2017 Jim asserted very firmly in an email to Judith that Moonhills “… is truly not your property, and it is basically held in trust for the whole family, with Brenda’s and my use in our lifetimes”. And on 28 May 2017 he says to Judith: “As you well know you have absolutely no right of ownership of this property” and repeated that the property was held in trust for the family. These assertions cannot be reconciled with what Jim said previously to his tax advisers. This might be characterised as regret about what he had set up in 1984, but may also demonstrate a wish by him to control what he thought of as a family asset. Judith says in terms that the property is hers to deal with as she wishes. In answer to the first of the two emails sent on 28 May 2017 she says that Jim should trust her to do the right thing “when the time comes”.

As I have indicated previously I do not find the first four items relied upon by Lindsay in the particulars of claim to provide more than equivocal evidence for the property being held on trust and I have determined that the statement dated 25 May 2023 cannot be relied upon.

I do not consider that what was said by Jim and Judith from 2015 onwards is a reliable indicator of the basis upon which the property was purchased. So much had changed by then and Judith was clearly using Moonhills as a bargaining counter in connection with what she saw as an unfair proposed distribution of Jim’s estate on his death. Lindsay’s case is not that Judith held the property on trust for Jim, albeit that was one of his assertions. The very fact that he said different things at different times suggests that his approach was not based upon what he had set up in 1984 but reflected a point of view that was heavily influenced by his age, his wishes for the devolution of his estate and the events that had occurred.

I am satisfied on the balance of probabilities there was no agreement or common intention in 1984 for the property to be held in trust for the children. The evidence taken as a whole points firmly in the opposite direction. Indeed, it seems to me that the creation of a trust for the children in 1984 is the least likely option given the ages of the younger children. Jim was a sophisticated person and had been very successful in business. He had prior to the purchase in 1984 set up an offshore family trust – the Pyrford Trust – and Brenda and the children were beneficiaries of that trust. There can be no doubt that he had the means and understanding to create an express trust in 1984 had he wished to do so. Instead, having altered his initial approach, he funded the purchase on the basis that Judith was the legal and beneficial owner and she and Brian moved into the property straight away as their home. This achieved all the objectives he had in mind.

Jim was someone who liked to retain control and he was able to retain sufficient control without there being a trust by virtue of the will and the option. He and Brenda, with some help from Judith and later Lindsay, managed the house. Jim retained economic control too. Had he decided not to spend money renovating the house or paying for the running costs a sale would have naturally followed. The house was beneficially owned by Judith but subject to de facto control by Jim. There was no trust.

If the evidence were to be analysed through the lens of the presumptions, there is insufficient evidence to rebut the presumption of advancement.

I conclude therefore on Issue 1 that Moonhills was purchased for Judith to hold absolutely.

Issues 2 to 4 and 6 to 11 do not arise for determination.

As to Issue 12, Judith is entitled to a declaration that she is the sole beneficial owner of Moonhills. The other relief she seeks, relating to sale, can be considered after this judgment is handed down.