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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bell v Georgiou & Anor [2002] EWCA Civ 1510 (4 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1510.html Cite as: [2002] EWCA Civ 1510

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
(MR JUSTICE BLACKBURNE)

		Royal Courts of Justice Strand London, WC2 Thursday, 4 October 2002

1. LADY JUSTICE ARDEN: This is an application by Mr Bell for permission to appeal from the orders of Blackburne J of 25 May and 26 June 2002. The action was one for rectification of his late mother's will pursuant to section 20 of the Administration of Justice Act 1982. The judge refers in his judgment to the case of In re Segelman (Deceased) [1996] Ch 171 at 180 where Chadwick J (as he then was) said that there were in that section three questions required to be examined: first, what were the testator's intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error or a failure on the part of someone to whom the testator has given instructions in connection with his will, to understand those instructions. The onus of proof in this matter was on the claimant.
2. There are a number of grounds of appeal on which Mr Bell seeks permission. These are expanded in the arguments supporting the grounds of appeal, which I have carefully read. As I see it, most of those points raise questions of fact or argument from the facts. On any appeal it would be necessary to show that the findings of the judge were against the weight of the evidence, and Mr Bell accepts that. So it is not enough to point to a fact which went the other way from the judge's conclusion: it is necessary to examine the judge's reasoning and show that that was perverse.
3. In a nutshell, the applicant's case is that the will as drawn of his late mother did not deal with an amount of her estate equal to the nil rate band. Mr Bell submits that his mother was aware that charities were exempt from tax, although the judge himself doubted this, expressing scepticism and the view that she did not really understand this: see paragraph 34 of his judgment.
4. The position was that Mr Bell's late mother, who died on 5 April 2000, by her will gave Mr Bell a legacy of £150,000 and such of her chattels and personal effects as he might select. The will then dealt with the remainder of the estate which, after payment of funeral and testamentary expenses, debts and some small legacies, was left to the RAF Benevolent Fund. The critical clauses read as follows:

"3. I give free of tax and duties the sum of One hundred and fifty Thousand pounds (£150,000) unto my son Douglas William Dawson Bell . . .

5. I give devise and bequeath all the remainder of my estate . . . upon the following trusts  . . .  "

There are a number of specific legacies, the last three of which were to other charities. Then she directed that if, after payment of the bequest made by paragraph 3 of the will and the payment of debts, funeral and testamentary expenses and taxes payable on or by reason of her death, there should be insufficient monies in her residuary estate to meet in full the legacies mentioned in clause 5, then those legacies should be calculated in the proportion that each such legacy payable to each of the legatees bore to the total value of the estate. Then, by a separate gift, the will provides:

"as to residue after such payments upon trust for the RAF Benevolent Fund in memory of my late husband Squadron Leader WED Bell DFC."

5. The estate was valued for probate purposes at some £669,371. The effect of the dispositions was that no inheritance tax was payable because all the bequests came within the nil rate band. The will was drawn by Mrs Georgiou. Mr Bell contended that Mrs Georgiou had been instructed on the basis of three pages of handwritten notes and that those notes made it clear either that his late mother had intended to make a further legacy in his favour of a sum equal to the nil rate band; or, alternatively, that she had intended to give the RAF no more than £11,000, with the consequence that there was a partial intestacy as to the remainder of her estate not dealt with by the will. Mr Bell sought rectification to give effect to one of those alternatives.
6. The handwritten notes are in Mrs Bell's handwriting and contain an estimate of the value of her assets. She then did a calculation, taking first the figure of £605,000. She then deducted £223,000, which she termed "Personal allowance", leaving a balance of £382,000. She deducted £191,000, which is expressed to be "Taxed at 40% plus expenses say 50%". That is 50 per cent of £282,000, thus leaving £191,000 for disposal. On the second sheet she made a list of the specific bequests that she desired to make, including a bequest of £150,000 to Mr Douglas Bell, the applicant. Her total for those bequests came to £180,000. She then did a further calculation: £191,000 less £180,000 equals £11,000; then she wrote "Balance of £11,000 to RAFA". There is a question whether or not she deleted the A in RAF, or whether she intended to make a gift to the RAF Association. But it was common ground in the case that she intended to give that £11,000 to the RAF Benevolent Fund. On the final page she wrote that if Mr Bell predeceased her without issue his share of the estate was to be divided; then she wrote in brackets £150,000, named the alternative beneficiaries and then wrote "150,000 ÷ 6 persons = 25,000 each".
7. The learned judge rejected the claims for rectification. He held that there was no evidence that Mr Bell's late mother had intended to give a further legacy to him, far less that she would have done so by the device of making two pecuniary legacies in his favour within the same will. The judge also considered that there was no evidence that his late mother intended to give only £11,000 to the RAF Benevolent Fund.
8. As I have said, the appellant's case is that the will as drawn does not deal with an amount of the estate equal to the nil rate band. He says that the notes clearly contemplated that the remaining gifts would be subject to tax and this would only be so, of course, if the £223,000, the amount of the nil rate band, were given to a taxable person, not an exempt person and, as I have said, the applicant contends that his mother was aware that, as he puts it, charities were exempt from tax. However, the fact is that the applicant had to show on the balance of probabilities that the testatrix intended to give this sum to him. It was that evidence which the judge concluded was lacking. He found that it would have been odd if there were two separate legacies in the applicant's favour, although the applicant contends that there would have to have been separate wording if she was going to give a variable amount like the amount for the time being equal to the nil rate band. But the essential point remains that there is nothing actually on the notes to show that the testatrix intended to give the nil rate band to Mr Bell. On the contrary, the sum of £150,000 is specifically used in those notes as the amount of the gift to him.
9. Mr Bell has made a number of submissions to me and indeed in writing in his grounds of appeal. In my judgment, however, there is no real prospect on appeal of saying that the bequest of the nil rate band might have been in the draft will but omitted when it was engrossed. There is a reference in the judgment at paragraph 20 to an investment clause which was deleted from the will. Unfortunately the judge did not have the draft will and could not see what the investment clause was, and it was not clear from the evidence what it had been; but, submits the applicant, it could have been deleted at the same time. But there is nothing to indicate that that is what happened and therefore in my judgment the judge was right to ignore that possibility.
10. Mr Bell also submits that even if the nil rate band was bequeathed to him, the RAF would still get a very considerable sum, 15 times more than his mother envisaged in her notes. But that point is really beside the point because it is necessary to show that his late mother intended to give only £11,000 to the RAF, or alternatively intended to give the nil rate band to him. The applicant submits that the basic premise is that her will in 1990, as opposed to her earlier will, was to be structured on the basis that her estate would pay inheritance tax, so that she could make distributions in excess of £223,000. But it is not possible in my judgment to assume that the way in which she devised her will was totally tax-driven; nor, having looked at her notes, can it be said that she must have fully understood the effect of the nil rate band. The judge said that it would have been odd to have a will with two separate legacies to Mr Bell. Mr Bell says that that is the only way in which a variable amount could be given. However that may be, in my judgment there is no real prospect of success on appeal on the claim that the will should be rectified so as to make an additional bequest to him of the nil rate band.
11. The applicant contends that Mrs Georgiou said that she would have advised his late mother about exempt gifts, but the judge made no finding on that, and clearly therefore he was not satisfied that this necessarily occurred.
12. There is an alternative argument, as I have indicated in the summary of the case, namely that the assets fell to be distributed on a partial intestacy. The judge dealt with this point at the very end of his judgment. What he said was that if that was what the testatrix had intended, she would more likely have given £11,000 specifically to the Benevolent Fund, rather than give it the balance of the residue of her estate. He held that, looking at the notes, when the testatrix said "Balance of £11,000", what she meant was the balance according to her calculations, rather than necessarily a fixed sum. For my own part, I do not consider that that reasoning could be impugned on an appeal.
13. In the circumstances, having considered the matter carefully, I do not consider that there is a real prospect of success on appeal. Accordingly I cannot give permission to appeal. So far as the further application for an extension of time is concerned, had I been minded to grant permission to appeal, I would have seen no difficulty with it and I do not intend to make any order on that.
ORDER: Applications refused