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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pudner & Anor v Pudner [2006] EWCA Civ 250 (27 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/250.html Cite as: [2006] EWCA Civ 250 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(HIS HONOUR JUDGE WEEKS)
Strand London, WC2 |
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B e f o r e :
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REGINALD I PUDNER | FIRST CLAIMANT/APPELLANT | |
ELIZABETH L SEAMAN | SECOND CLAIMANT/APPELLANT | |
v | ||
IVOR PUDNER | DEFENDANT/RESPONDENT |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
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THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Crown Copyright ©
"Mr Ivor Pudner has given evidence, which I accept, that his instructions to his solicitors and his intentions were that the property should be purchased in such a way that it should automatically pass to him on his mother's death. That evidence, if I accept it, which I do, seems to me to rule out any possibility of mistake or rectification of the declaration in the transfer. Rectification has to be proved by cogent persuasive evidence and with the exception of what appears to have been a mistake by the solicitors the evidence is all one way that the purchasers, Mr Pudner and his late mother, intended that the property should be held as joint tenants in equity, which is what they declared in the conveyance."
"Rang solicitors JPR to be entered as mother and son. DIR is pre-printed and does not give scope for the other alternative."
In that context, JPR is the joint proprietorship restriction and DIR is the document inducing first registration. But, as the judge observed at page 8 F of the transcript, the note is not as helpful as it might be. In his view it did not point either way as to how the mistake might have occurred.
"Why the solicitors should have thought that the applicants were joint owners holding the land for themselves as tenants in common does not appear because their file has not been produced."
So he was left with the evidence of the conveyance; the evidence of Mr Ivor Pudner, which he accepted; the possibility of a mistake by the solicitors which had led to a mistaken entry in the Land Registry; and no evidence from the solicitors or their file. There was no evidence to relate to the possibility that there had been a mistake.
"all my property whatsoever and wheresoever both real and personal over which I have any power of disposal and not hereby or by any codicil hereto otherwise specifically disposed of (hereinafter called my 'residuary estate')".
It is said by the applicant that those wills in that form point to a belief by each of Mrs Sarah Pudner and Mr Ivor Pudner that she or he was tenant in common of the house, 26 Byron Avenue. But the bequests make no reference to a share in the house. The two wills have the same effect whether the two testators are beneficial joint tenants or tenants in common. In each case the whole beneficial interest in the house passes to the other. If they are joint tenants that takes place by survivorship, independently of the will. If they are tenants in common, that takes place under the will. The will operates to pass only that property over which the testator had power of disposal, whatever that property might be.
"We submit that if a joint tenancy in equity did exist by virtue of clause 8(a) of the conveyance then; it was either severed mutually by the execution of identical wills on 12 February 1987, or unilaterally by Sarah executing her last will on 23 January 2002".
And then there is reference to section 36(2) of the Law of Property Act 1925.
Order: Application refused.