Amanda Jane Ruth Coombes v Andrew Kenneth Coombes

The matter that has been referred to the Tribunal is the Applicant’s applications for the entry of notices of severance against two titles: 2 Hawarden Avenue, Wallasey (L44 0AW), registered under title number MS390130; and 6 Knaresborough Road, Wallasey (CH44 2BG), registered under title number MS263027 (“the Properties”)

Insofar as is relevant for these proceedings, the Properties have been dealt with identically, and there is no need to distinguish between the two in terms of either the facts or submissions I have to consider, save a distinction in relation to the history of ownership which I outline later. HM Land Registry has confirmed that the matter referred includes the applications made in respect of both the Properties, it having initially been unclear whether this was the case.

The Applicant in these proceedings is Amanda Jane Ruth Coombes (“Amanda”). Amanda is the widow of, and executor of the estate of, Nicholas James Coombes (“Nicholas”). The Respondent is Nicholas’ twin brother, Andrew Kenneth Coombes (“Andrew”). It is convenient to use first names to avoid any confusion.

The Properties are presently registered in the names of Nicholas & Andrew, and have been for many years (since 1997 & 2005). Nicholas’ home was 2 Hawarden Avenue; Andrew’s home is 6 Knaresborough Road.

This case concerns matters that took place in early 2024. It is not in dispute that, at that time, Nicholas was very ill, having been diagnosed with an incurable cancerous brain tumour in 2014. The relevant factual background is as follows.

On 5^th January 2024, Nicholas attends a consultation with his clinical oncologist Dr May.

On 15^th January 2024, Nicholas & Amanda are married (having been in a relationship since 2012).

On 24^th January 2024, Nicholas & Amanda attend Robert Bingham Limited solicitors, and speak to solicitor Gareth Davies about wills and estate planning. Nicholas’ will is drawn up and executed (after various specific legacies, the residue is left to Amanda). Amanda’s case is that, during that meeting, notices of severance were also drawn up (“the First Notices”), and were handed to Andrew later that day when he came to visit. Andrew accepts he visited Nicholas, but denies that he was handed any notices.

On 2^nd February 2024, there is a record of Nicholas having a conversation with his cancer support worker.

On 16^th February 2024, Nicholas attends a consultation with Dr May.

On 4^th March 2024, Nicholas & Andrew execute TR1s transferring the Properties from joint names into Andrew’s name only (“the Transfers”). The Transfers were witnessed by Sue Anglesey, Andrew’s neighbour. Amanda’s case is that Nicholas did not have capacity to execute the Transfers. She has, during the course of these proceedings, applied for them to be set aside. Andrew’s case is that Nicholas did have capacity, but, if he did not, this calls into question whether he had capacity in relation to the First Notices.

On 16^th March 2024, Nicholas moves to a nursing home.

On 19^th March 2024, Gareth Davies personally posted through Andrew’s letterbox different notices of severance (“the Second Notices”). The Second Notices are unsigned but are dated 18^th March 2024. The cover letter reads, “We understand that you were served on 24^th January 2024 with a copy of the severance notices for each of the above properties and that you subsequently took them away. We enclose notices by way of service”.Andrew does not dispute receiving the Second Notices, but he submits that they have no effect – he says that, by then, he holds the entire beneficial interest in the Properties due to the Transfers, such that there is nothing to sever.

On the same day, Gareth Davies completes a Form SEV in relation to each the Properties.

On 20^th April 2024, Nicholas passes away.

On 22^nd April 2024, Gareth Davies lodges applications in relation to each of the Properties.

On 25^th June 2024, Andrew’s then solicitors object, on the basis that Andrew did not receive notices of severance, and because of the Transfers.

Andrew has since applied for registration of the Transfers, but it appears that HM Land Registry have not processed these, pending disposal of this matter. The outcome of Amanda’s application to set aside the Transfers, made within these proceedings, is likely to impact the applications for registration one way or another, even though the applications for registration are not before the Tribunal.

The overarching dispute between the parties is whether Nicholas’ interest in the Properties forms part of his estate or not. It will not if either (a) the joint tenancies were not severed, such that his interest passes to Andrew by survivorship; or (b) he transferred his interest to Andrew by the Transfers. It will if the joint tenancies were severed and he did not transfer his interest to Andrew.

The issues can be broken down as follows:

If the answer to (a) is yes, then Andrew succeeds whatever the answers to the other questions – it matters not about severance, as Nicholas’ interest has been transferred. In terms of the applications before the Tribunal, the Chief Land Registrar will be directed to cancel the applications for entries of notices of severance, and the application to set aside the Transfers will be dismissed.

If the answer to (a) is no, the Transfers will be set aside, but what happens to the applications for entries of notices of severance will depend on the answer to (b), which in turn depends on the answers to (i)(ii) and (iii).

If the answers to (i) and (ii) are yes, then the tenancies have been severed and Amanda succeeds. In terms of the applications before the Tribunal, the Chief Land Registrar will be directed to give effect to the entries for notices of severance as if the objections had not been made, and the Transfers will be set aside.

If the answer to (i) is yes and (ii) is no, then it is necessary to consider (iii), that is, whether Amanda can rely on service of the Second Notices as being effective to sever the joint tenancies. This is because there is an argument here as to whether service of the Second Notices on 19^th March 2024 is simply a carrying out of instructions given (with capacity, in this scenario) on 24^th January 2024.

If the answer to (i) is no, then Amanda would have to show that Nicholas at some point had capacity to give instructions for the Second Notices, but not the First Notices or the Transfers. That is not part of her case; the Chief Land Registrar will be directed to cancel the applications.

It is convenient to start with the question of capacity, in relation to both the First Notices and the Transfers.

The Tribunal gave permission for a single joint expert report from Dr May, Nicholas’ clinical oncologist. Her report is dated 30^th May 2026. Her conclusions are that Nicholas did have capacity to make a decision to sever the joint tenancies on 24^th January 2024, but that he did not have capacity to make a decision to execute the Transfers on 4^th March 2024.

I summarise the report as follows:

Dr May’s opinion is not, of course, determinative of the question of capacity. Other evidence that might have a bearing is as follows:

I pause to note that Sue Anglesey attended to give evidence, but in the event Counsel for Amanda did not have any questions for her (the same is true of Dale Coombes, Nicholas & Andrew’s brother). Neither Richard Bartley nor Tracy Maney attended to give oral evidence. Both Amanda & Andrew did.

Andrew challenges Dr May’s opinion that Nicholas lost capacity between 2^nd February and 16^th February 2024. His case is that either Nicholas had capacity in relation to both the First Notices and the Transfers, or he did not have capacity in relation to either.

It does not automatically follow that, if Nicholas did not have capacity in relation to the Transfers, then he did not have capacity in relation to the First Notices. Rather, as I understand it, Counsel for Andrew’s submission is that there is insufficient evidence on which the Tribunal can base a finding that Nicholas lost capacity between the two.

There was some discussion of the burden of proof in relation to capacity, particularly in relation to the First Notices. It is not in dispute that, here, each party can rely on a presumption of capacity in relation to the document on which they wish to rely, unless the other party can raise a real doubt as to capacity, at which point the evidential burden shifts back to them.

In relation to the Transfers, in my judgment, there must be a real doubt as to capacity in circumstances where Dr May has provided expert evidence that Nicholas did not have capacity on 16^th February 2024 and would not have regained capacity due to the progressive nature of his brain tumour. Dr May was Nicholas’ clinical oncologist. She bases her opinion as to his capacity on 16^th February 2024 on her own observations from an in-person consultation. She considered the correct criteria. There is nothing to gainsay her evidence as to the progressive nature of the brain tumour.

The burden therefore shifts back to Andrew. Andrew relies on the witness evidence outlined above. However:

In my judgment, this is insufficient to call into question Dr May’s evidence, which I prefer.

I am not satisfied on the balance of probabilities that Nicholas had capacity to make a decision to execute the Transfers on 4^th March 2024.

Counsel for Andrew submits there is a real doubt as to Nicholas’ capacity in relation to the First Notices because Dr May’s opinion as to when Nicholas lost capacity – between 2^nd & 16^th February 2024 – cannot be justified. He particularly submits that the record of the conversation on 2^nd February 2024 is a flimsy basis for her conclusion that Nicholas had capacity on that date, because recalling and reporting what has happened does not equate to capacity.

This submission, however, does not directly address the key issue, which is whether Nicholas had capacity to make a decision to sever the tenancies on 24^th January 2024.

None of the lay witnesses give any evidence that calls into question Nicholas’ capacity at that date. Indeed, they are all – including Andrew and his witnesses – of the view that he did have capacity then. Tellingly, Gareth Davies was content to accept and act on Nicholas’ instructions in relation to both the First Notices and Nicholas’ will, with no concerns as to capacity being indicated.

I am not satisfied there is a real doubt as to Nicholas’ capacity in relation to the First Notices, meaning that Amanda can rely on the presumption of capacity.

Even if I were satisfied that there was a real doubt, I would in any event be satisfied on the balance of probabilities that Nicholas did have capacity.

I am satisfied on the balance of probabilities that Nicholas had capacity to make a decision to sever the tenancies on 24^th January 2024.

Before considering the witness evidence in relation to the First Notices, it is helpful to set out a little more detail about the Properties. 2 Hawarden Avenue was purchased jointly by Nicholas and Andrew as an investment, whereas 6 Knaresborough Road was the family home inherited by Nicholas, Andrew and their brother Dale, with Nicholas and Andrew purchasing Dale’s share.

It is not in dispute that there had been discussions between Nicholas and Andrew about transferring the Properties so that Nicholas would be the sole owner of 2 Hawarden Avenue and Andrew the sole owner of 6 Knaresborough Road.

Andrew is clear that he believes 6 Knaresborough Road should remain in the family.

Amanda is clear that she has no interest (practically, not legally, speaking) in 6 Knaresborough Road, and that Nicholas wanted her and her son to carry on living at 2 Hawarden Avenue.

Amanda’s written evidence in relation to the First Notices is as follows. She says that, during the wills and estate planning meeting with Gareth Davies on 24^th January 2024:

I note for completeness that the notices contained in the hearing bundles are unsigned and undated. Both Amanda and Gareth Davies maintained in their evidence that the documents handed to Andrew were signed. Amanda’s evidence was very clear about this, despite it being suggested that she was perhaps muddling up the First Notices and Nicholas’ will.

In cross-examination, she provided further details, including explaining that she handed an envelope containing the First Notices to Andrew, which he opened in front of them, and that Andrew said he was “going to tell Dale about this”. She confirmed that Andrew did not question it, and did not say anything about Knaresborough being the brothers’ inheritance.

It was put to Amanda that her written evidence was missing details, such as who handed Andrew the First Notices, and that this was because she could not remember the details. She maintained that she remembered everything.

It was put to Amanda that Andrew’s reaction, on her evidence, was “bizarre”, and such an unlikely account that it did not happen. She maintained that it did.

Amanda was also cross-examined in relation to Andrew’s explanation for the Transfers, which was that Nicholas was frustrated at work being done at 2 Hawarden Avenue, which was Amanda’s idea. She said she “wasn’t getting any work done” when she was looking after Nicholas.

Gareth Davies’ written evidence was that, at the meeting on 24^th January 2024, he took instructions for the will, checked on the ownership of the Properties, and explained what would happen as things stood (Nicholas being unaware of the practicalities of joint tenancies). Nicholas then decided he wanted to sever the joint tenancies, and they discussed how to serve them, with Nicholas explaining that Andrew visited him daily. Later, he recognised that they would potentially need to be re-served, which led to the Second Notices.

In cross-examination, Gareth Davies said that the will and the First Notices were drawn up there and then because of the urgent circumstances, because he “didn’t want to bring [Nicholas] back a second time”.

He was asked about Amanda’s evidence that she called the solicitors to say the First Notices had been served. He said Nicholas told him the First Notices had been served after Amanda had rung to leave a message, with Nicholas saying that they had been handed over the night before, and that Andrew had created a scene and been asked to leave. He said he did not immediately do anything as he was waiting to see what happened after Andrew had the chance to “mull it over”, and also said Nicholas was pushing for transfers of the Properties and was hopeful Andrew would “come round”. He did not accept that he served the Second Notices because he was not confident the First Notices had been served.

Andrew denies being handed the First Notices. He says the first time he saw any notices was with the letter from Gareth Davies on 19^th March 2024.

Andrew’s written evidence about the Transfers was as follows:

Andrew was cross-examined about the Transfers. He maintained the Transfers were Nick’s idea. He denied this was surprising given Nicholas and Amanda were married 6 weeks before. He denied knowing that he would be the owner of both (on the basis the tenancies had not been severed), saying he thought the will was the defining document and was “naïve as to the law”. He did not accept that receipt of the First Notices led to the Transfers, and maintained that the Transfers were at Nick’s request.

He was also specifically cross-examined about the circumstances of drawing up and executing the Transfers. He said that they had parked at Sue Anglesey’s house opposite; he used his laptop which was in his car from work; this picked up the wifi so he could print from the car; and they were filled in at Nicholas’ instruction. He did not accept that he procured and prepared the TR1s because of the First Notices.

This is a straightforward factual dispute as to whether I prefer the evidence of Amanda that the First Notices were handed over, or the evidence of Andrew that they were not.

Amanda was clear and straightforward in her evidence. It is right that she provided more detail than was in her written evidence, but her oral explanation of what happened remained consistent. In relation to one of the points put to her, it does not strike me as particularly unlikely that, if Andrew was handed the First Notices, he would express his disagreement and then take them away to discuss with Dale.

Amanda’s evidence is supported, albeit indirectly, by Gareth Davies. He is an independent witness, a solicitor. His evidence confirms the preparation of the First Notices, that the intention was for them to be handed to Andrew during one of his daily visits, and that he was told the next day that the First Notices had been handed over. It is right that his actions in serving the Second Notices were perhaps a little unusual, but I accept his evidence that he was waiting to see what happened. It seems to me it later occurred to him that there might be an argument over service and so he took steps to try and prevent that.

Amanda’s evidence is also consistent with the factual background. Nicholas and Amanda were married on 15^th January 2024. Just over a week later, Nicholas attended a wills and estate planning meeting. He knew his tumour was incurable and his health was worsening. He wanted to retain 2 Hawarden Avenue and was not interested in 6 Knaresborough Road, but transfers could not be agreed. He gave instructions to sever the joint tenancies. It does not make any sense for the First Notices to have been drawn up, only for them not to be handed to Andrew, especially given the context of Nicholas’ illness. I accept Counsel for Amanda’s submission that it is inherently improbable that the First Notices were not handed to Andrew.

Against this, there is Andrew’s evidence. His evidence in relation to being handed the First Notices is, almost inevitably, a bare denial. However, he gave other evidence, most notably in relation to the Transfers. I did not find his explanation of the Transfers convincing. In particular, his evidence that he did not find it surprising that Nicholas wanted to transfer the Properties to him is difficult to accept in circumstances where Nicholas and Amanda had only recently married; 2 Hawarden Avenue was Amanda’s home; and Nicholas had been trying to procure transfers of the Properties as explained above. Andrew’s evidence is entirely self-serving.

For all of these reasons, I am satisfied on the balance of probabilities that the First Notices were served on Andrew.

In the circumstances, there is no need for Amanada to rely on the Second Notices and there is no need for me to consider issue (b)(iii). This raised a number of technical legal arguments, and it would not be proportionate for me to consider them in the alternative.

For the reasons give above, I am satisfied that:

As such, I will make an order:

I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that Andrew pays Amanda’s costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case.

My preliminary view is therefore that Andrew should pay Amanda’s costs from the date that matter was referred to the Tribunal, that is, 24^th March 2025, to be summarily assessed if not agreed.

Any application for costs shall be sent to the Tribunal and the other side by 5pm on 2^nd September 2026 and shall include an estimate of the amount of costs sought. Further directions will then be given as appropriate.

It does not seem to be in dispute that, subject to any accounting, Amanda would rather have the whole of 2 Hawarden Avenue and Andrew would rather have the whole of 6 Knaresborough Road, rather than the Properties remaining in joint ownership. I hope the parties will be able to resolve any outstanding issues without needing to resort to further litigation.