Richard Winter & Anor v Philip Winter & Anor [2023] EWHC 2393 (Ch)29 September 2023

Published: 10/01/2024 14:45

Zacaroli J. Claimants were two brothers, R and A, whose suit was against third brother, P, as executor of their father Albert’s estate, to challenge Albert’s 2015 Will, and the solicitors who drafted the Will.

There were two bases to the claim.

  1. Claimants asserted that Albert and his wife, Brenda, who predeceased him, had made mutual Wills in 2000 and although Albert’s 2000 Will had not been found it was contended that Albert’s estate was subject to a constructive trust to give effect to the terms of that Will.
  2. Claimants asserted that Albert and Brenda had made numerous assurances to them that if they committed their lives to the family business the sons would equally share in the land and farming business and they relied on these assurances to their detriment. On Brenda’s death each son inherited 26.66% of the business and Albert had the remaining 20%. Albert’s 2015 Will left his share only to P, so that P had 46.66%.

Sufficiently clear assurances. All three sons had helped on the farm from a young age and became full time after they left school. R and A had each at some point briefly left the business for other pursuits but returned and judge found that this was in part because Albert had otherwise threatened to cut them out of any share of the business. He had told them they were ‘working for their futures’. The claimants were induced by representations made by Albert and Brenda to believe they and P would equally inherit the farms but neither parent had spoken expressly about what would happen/be in their Wills.

Relationship broke down when following their mother’s death P spent more time with Albert than did R and A who focused more on the business, and there was conflict over how the business got into financial difficulties and the plan to get it onto stronger footing. Albert decided to split the business 50% to him and P and 50% to R and A but did not do this as R had threatened legal action. However, this was the effect of the Will he made in 2015 but did not tell R and A about.

Detrimental reliance clearly established. They returned to the business and stayed for a long period in the business in reliance on the assurances. Sons were for some time paid relatively little with profits ploughed back into the business but later paid much more. They used houses for well below market rent, tax and NI were paid by the business, and they used company cars. However, oversimplistic to say that because of this they did not suffer detriment. They had dedicated working life to the business giving up the chance to build an alternative life. Gladstone v White [2023] EWHC 329 (Ch) and Michael Spencer v Estate of John Spencer (Deceased) & Ors [2023] EWHC 2050 (Ch) considered.

On issue of unconscionability, A was alleged to have assaulted Albert on one occasion. Held this did not outweigh nearly 40 years of commitment to the family business.

Remedy was to give effect to the assurances which were of equal shares to each son.

Contractual estoppel. Argued by P that claimants’ case was barred by their having entered into a 1988 partnership agreement which provided for continuing partners to buy the share of an outgoing partner; Horsford v Horsford [2020] EWHC 584 (Ch) considered. In that case the claimants were contractually estopped from asserting an equity by the fact they had entered into a partnership agreement containing an option to purchase. Held – that case distinguished. Here, the parties had not paid attention to the agreement’s terms or exercised an option. In Horsford an option was exercised and the unsuccessful claimant had entered into a contract which was inconsistent with the continued existence of his rights which was not the case here because it predated by many years the detrimental reliance and thus the equity on which they relied having arisen.

Mutual Wills. Obiter. No evidence that in 2000 Albert and Brenda made binding agreements that they would make their Wills in a particular form and would not revoke them or change them without giving the other the opportunity to do so and consequently survivor was not bound by constructive trust to give effect to their agreement. No evidence in solicitor’s file either. Fact that Albert felt able to change his will without compunction points away from such an agreement.

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