Wills – Election – Bequest including property already partly owned by beneficiary – Mother leaving half of estate to appellant – Whether appellant already entitled to half-share in property – Whether entitled to further quarter-share under will – Whether mother purporting to dispose of entire beneficial interest in property – Whether appellant put to election – Appeal dismissed
In 1966, the appellant used £2,000 of his own money as a deposit on a home for himself, his parents and siblings. The property was purchased in his sole name. The remainder of the £3,600 purchase price was funded by a mortgage, with the instalments being paid by the appellant’s father. In 1982, when the mortgage was mostly paid off, the family sold the property for £18,500, redeemed the mortgage and used £14,272 of the remaining proceeds to purchase another property in the names of the appellant’s parents as joint tenants. Following the death of the father in 1998, the property vested in the sole name of the mother.
The mother died in 2005. In her will, she left 50% of her residential estate to the appellant and the other 50% to his siblings. The sole asset was the property. A dispute arose between the appellant and the respondents, as the mother’s personal representatives, concerning the appellant’s beneficial entitlement to the property. He claimed a three-quarter share on the basis that he already held a half-share and was additionally entitled to half of his mother’s share under her will. The judge found that the parents had held the full beneficial interest in the property but that they had agreed to leave one-half to the appellant in their will. He held that this obligation had been discharged by the mother’s will and that the appellant was therefore entitled to a half-share only.
On appeal, the appellant contended that the facts found by the judge supported his claim to three-quarters of the property. The respondents argued that even if the appellant already had a beneficial half-share: (i) the mother had purported to dispose of the full beneficial interest in her will; (ii) she had intended to leave one-half of it to the appellant, unaware that he already held such a share; and (iii) in those circumstances, he was put to an election as to whether to keep his existing interest and renounce his bequest or to accept the bequest and compensate the estate by ceding his existing beneficial interest or its notional value, either way remaining entitled to a one-half share only.
Held: The appeal was dismissed.
(1) The appellant had held at least one-half of the beneficial interest in the original property purchased in his sole name. Evidence that he wished to provide security for his parents during their lifetimes did not support a conclusion that he had intended, at the time of acquiring the second property, to forgo acquisition of the one-half beneficial interest in it that he would ordinarily have acquired to reflect his one-half interest in the purchase moneys. The appropriate finding was that the claimant held a one-half beneficial share in the property from the time of its acquisition in 1982; the agreement that he would be entitled to half of the property when his parents died was best interpreted as an agreement that he should be able to realise his half-interest in it at that time.
(2) The doctrine of election would apply only if the appellant’s mother had, when she made her will, considered that she owned the entire beneficial interest in the property and thus purported to dispose not only of her own half-share but also that of the appellant: Brown v Gregson [1920] AC 860 applied. The evidence showed that she had so intended. Although there was a strong presumption that a testator purported to dispose only of property of which he or she was free to dispose, and the law was historically resistant to the admission of parol evidence to rebut it where the will raised no doubts as to the ambit of the intended disposition, section 21 of the Administration of Justice Act 1982 assisted in that regard. Evidence showing that the appellant’s mother held only a half-share in the property at her death could be regarded as evidence of “surrounding circumstances” that showed the will to be ambiguous in a latent sense, so as to permit the admission of extrinsic evidence of the testator’s intentions pursuant to section 21.
A further requirement in order for the doctrine of election to apply was a duality of gifts in the same instrument, one of the donor’s own property to X, and another of X’s property to Y; in such cases, an intention was implied that the gift to X should take effect only if X permitted the gift to Y to take effect. That requirement was met where the appellant’s mother had purported to dispose of both her own and the appellant’s half of the property by placing it into her residuary estate, to be held as to half for the appellant and half for his siblings. Accordingly, the appellant was put to an election: Grissell v Swinhoe (1869) LR 7 Eq 291 applied.
Timothy Hirst (instructed by Atkinson & Firth, of Shipley) appeared for the appellant; Jonathan Walker-Kane (instructed by Turners Solicitors, of Cross Hills) appeared for the respondents.
Sally Dobson, barrister
