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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Creasey & Anor v Sole & Ors [2013] EWHC 1410 (Ch) (24 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/1410.html Cite as: [2013] EWHC 1410 (Ch) |
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Case No: HC12C00660 |
CHANCERY DIVISION
Rolls Building, London, EC4A 1NL |
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B e f o r e :
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(1) ALFRED GEORGE CREASEY (2) ANTHONY PETER HOLMES |
Claimants |
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- and - |
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(1) JUNE SOLE (2) PAMELA HACKETT (3) GEORGE JENKINS (4) RONALD JENKINS (5) RICHARD JENKINS (6) MICHAEL JENKINS |
Defendants |
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The six Defendants appeared in person
Hearing dates: 30th April, 1st, 2nd, 3rd, 7th, 8th and 9th May 2013
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Crown Copyright ©
Mr Justice Morgan :
Heading | Paragraph number |
The parties | 1 |
The land | 4 |
The father's will in outline | 10 |
The mother's will in outline | 11 |
Further facts | 12 |
The father's will in more detail | 39 |
The mother's will in more detail | 54 |
The Manor Farmhouse | 56 |
Michael's Land | 62 |
Richard's Land | 82 |
The Agricultural Holdings Act 1986 | 83 |
Proprietary estoppel | 94 |
The Trusts of Land and Appointment of Trustees Act 1996 | 115 |
Payment by Michael for his occupation | 130 |
The Single Farm Payment | 131 |
The Administration of Estates Act 1925 | 142 |
Other matters | 145 |
The next steps | 147 |
The parties
The land
The father's will in outline
The mother's will in outline
Further facts
The father's will in more detail
"5. Subject thereto and subject to the payment of my just debts funeral and testamentary expenses I GIVE DEVISE AND BEQUEATH the whole of the remainder of my Estate whatsoever unto my Trustees upon trust to sell call in and convert into money all such parts thereof as shall not consist of money with power in their absolute discretion to postpone such sale calling in and conversion and to stand possessed of the proceeds of such sale calling in and conversion and my ready money and all parts of my Estate for the time being unconverted (hereinafter called "my residuary Estate") upon the following trusts namely:
Upon trust to invest the same and to pay the income arising from such investments and such part of my Estate as shall remain unconverted to my wife the said Constance Isobel Ellen Jenkins for her life
From and after the death of my said wife Upon trust
(i) Upon trust as to East Ashey Farm of approximately Two Hundred and Ten acres as purchased by me and my wife from the late Mr H. J Warne or any interest I may have therein together with such interest as I have at the date of my death in the farming undertaking carried out thereon and any live or dead stock growing crops or other asset or part of my farming business carried out thereon To Hold the same for any child or children of mine (if more than one equally between them) who may be working either as employee or partner fulltime in such business at the date of the death of myself or my wife (whichever shall last happen) and Provided that such child or children shall survive the survivor of myself and my wife by not less than one calendar month (Provided that any child who is under-going agricultural training and who has worked fulltime on such farm of mine shall be treated as if he were an employee notwithstanding that because of such training he may not be actually working on such farm at the date of the death of myself and my wife as aforesaid)
(ii) Upon trust to hold the remainder of my freehold or leasehold premises or any interest I may have therein and to divide the same equally between such of my children as shall survive me and attain the age of Twenty one years and who shall not have benefited from the gift concerning East Ashey farm mentioned in sub-clause (i) of this clause of this my Will but Subject to the following conditions namely:
As soon as conveniently may be after my death each of such freehold or leasehold properties shall be individually valued on a vacant possession basis by a Valuer to be appointed by my Executors and Trustees and on receipt of such valuations such properties shall first be offered for purchase to any child or children of mine who shall under the provisions of this my Will have inherited East Ashey Farm as aforesaid and if any such child or children within three months of such offer to them notify my Executors and Trustees in writing of their wish to purchase all or any such individually valued properties then my Trustees shall sell the same to such child or children at such valuation Provided Further that if any such child or children shall not exercise such option within such period then such premises shall be offered for purchase to each of my sons in turn in order of age and if any such son shall notify my Trustees in writing within one month of such offer of his wish to purchase the whole or any such properties then the same shall be sold by my Trustees at such valuation to him
To avoid misunderstanding it is my intention that the proceeds of any such sale under one of the options hereinbefore mentioned shall be divisible equally between such of my children as shall survive me and attain the age of Twenty one years as have not benefited from the gift of East Ashey Farm aforesaid
(iii) Upon trust to hold the remainder of my residuary Estate and East Ashey Farm if the same shall not have vested in accordance with the provisions of sub-clause (i) of this clause of this my Will unto and equally between such of my children as shall survive me and attain the age of Twenty one years."
"… who may be working either as employee or partner fulltime in such business at the date of the death of myself or my wife (whichever shall last happen) … ".
The sub-clause then extends the concept of "employee" to a case of a person who is undergoing agricultural training in certain circumstances and, in that context, refers to a person who "may not be actually working on such farm".
The mother's will in more detail
"6. My trustees shall hold my residuary estate upon the following trusts:
6.1 Such interest as I may have at the date of my death in East Ashey Manor Farmhouse and its immediate garden (but not the orchard and duck pond adjacent thereto) the extent of such garden and the extent of its rights of way and service easements to be specified at the discretion of my Trustees in order to render the said Manor House readily useable and saleable as to one equal half share (conditional upon her signing the options as defined by clause 10 hereof) for my daughter Pamela Dorothy Joan Hackett, as to one equal tenth share (conditional upon him signing the Options as defined by clause 10 hereof) for my said son George Victor Kenneth Jenkins, as to one equal tenth share (conditional upon him signing the Options as defined by clause 10 hereof) for my son Ronald Neil Jenkins, as to one equal tenth share (conditional upon her signing the Options as defined by clause 10 hereof) for my daughter June Ellen Jenkins (also known as June Ellen Denham but referred to herein as June Ellen Jenkins) as to one equal tenth share (conditional upon him signing the Option in favour of Michael Gilbert Jenkins defined in clause 10 hereof) for my son Richard Gordon Jenkins and as to the remaining one equal tenth share (conditional upon him signing the option in favour of Richard Gordon Jenkins defined in clause 10 hereof) for my son Michael Gilbert Jenkins and for the purpose of interpretation of this clause I declare that the reference to signing the Options (as defined in Clause 10 hereof) shall be interpreted to mean the signature of Option documentation prepared by my Trustees or their Solicitors and in terminology acceptable to my Trustees within nine calendar months of the date of my death PROVIDED THAT if any of them my six children shall fail to sign the Options or either of them then his share in my interest in the said property East Ashey Manor Farmhouse shall not pass to such child of mine but instead shall be held in Trust for my said sons Michael Gilbert Jenkins and Richard Gordon Jenkins in equal shares absolutely
6.2 Such interest as I may have at the date of my death Michael's Land (as defined in clause 10 hereof) for my said son Michael Gilbert Jenkins absolutely
6.3 Such interest as I may have at the date of my death Richard's Land as defined by clause 10 hereof) for my said son Richard Gordon Jenkins absolutely
6.4 The remainder of my residuary estate including such interests as I may have in land situate at Landguard Shanklin and land at Brading Marshes for my said daughter June Ellen Jenkins and my said sons George Victor Kenneth Jenkins, Ronald Neil Jenkins, Richard Gordon Jenkins and Michael Gordon Jenkins in equal shares absolutely conditional upon their respectively surviving me
6.5 Provided nevertheless that if any of the trusts hereinbefore declared shall fail the same shall accrue to and devolve to the survivors of my six children as named in this clause 6"
"10.1 In this Will the following words or expressions shall be interpreted in accordance with the provisions of this clause viz:
10.1.1 "Michael's Land" means land at Ashey Down East Ashey Manor Farm Ryde Isle of Wight being land either upon the Down or situate to the west of the road leading to the waterworks including the road itself and the orchard and duck pond together with such part of the farm buildings and yards at East Ashey Manor Farm (together with all easements and appropriate to serve the same to be specified by my Trustees at their discretion in order to render the same useable and saleable) as my Trustees shall consider at their entire discretion to represent a half-share in value or such other share as they shall in their discretion think fit
10.1.2 "Richard's Land" means the remaining land at East Ashey Manor Farm not devised in accordance with clauses 6.1 and 6.2 of my Will including the kitchen garden and fishponds at East Ashey Manor Farm and such interest in the farm buildings and yards at East Ashey Manor Farm (together with easements appropriate to serve the same to be specified by my Trustees at their discretion in order to render the same useable and saleable) as my Trustees shall consider at their entire discretion to represent a half-share in value or such other share as they shall in their discretion think fit
10.1.3 The Options means options to sell the interests of my Children in Michael's Land and Richard's Land owned by any of my children arising out of the estate of my late husband Kenneth Gordon Jenkins at a price to be fixed by reference to an assumption that Michael's Land is valued in its entirety at a figure of Two Hundred and One Thousand Pounds and Richard's Land at a figure of One Hundred and Twenty Thousand Pounds so that (by way of example only) the value of one-twelfth interest in Michael's Land shall be fixed at Sixteen Thousand and Seven Hundred and Fifty Pounds and a one-twelfth interest in Richard's Land at Ten Thousand Pounds
Such options expressed in the case of Michael's Land to be in favour of my said son Michael Gilbert Jenkins and in the case of Richard's Land in favour of my said son Richard Gordon Jenkins with the Options strictly personal respectively to my said sons Michael Gilbert Jenkins and Richard Gordon Jenkins and to be capable of exercise at any time within three years of the date of my death (time to be of the essence)
10.2 For the avoidance of any doubt the interpretation of the expressions "Michael's Land" and "Richard's Land" and the terminology of the documentation constituting the Options shall be fixed by reference to this clause 10 but in the interpretation thereof of my Trustees whose decision shall be final"
The Manor Farmhouse
Michael's Land
Richard's Land
The Agricultural Holdings Act 1986
"2 Restriction on letting agricultural land for less than from year to year.
(1) An agreement to which this section applies shall take effect, with the necessary modifications, as if it were an agreement for the letting of land for a tenancy from year to year unless the agreement was approved by the Minister before it was entered into.(2) Subject to subsection (3) below, this section applies to an agreement under which—(a) any land is let to a person for use as agricultural land for an interest less than a tenancy from year to year, or(b) a person is granted a licence to occupy land for use as agricultural land,if the circumstances are such that if his interest were a tenancy from year to year he would in respect of that land be the tenant of an agricultural holding.(3) …(4) … "
"In this Act "agricultural holding" means the aggregate of the land (whether agricultural land or not) comprised in a contract of tenancy which is a contract for an agricultural tenancy, not being a contract under which the land is let to the tenant during his continuance in any office, appointment or employment held under the landlord."
"21.020 The reference to "an agreement" is not to an agreement in the loose and popular sense but to a contract enforceable at law. In particular, there must be an intention to create legal relations and there must be consideration moving from the grantee to the grantor. However, the section has been applied to informal agreements, to agreements between members of the same family, to agreements where the consideration was not in the form of rent or a licence fee, or, indeed, in monetary form, and to an arrangement under which a tenant allowed a family company to farm the land. …
…
21.022 Because of the meaning of "agreement", the licence must be a contractual licence. The licence must be a licence "to occupy" and to satisfy this requirement the right of occupation must be an exclusive right under which the grantee is entitled to prevent the grantor and any other person authorised by the grantor from making any use of the land. However, the grant of an exclusive right to occupy, which is subject to a reservation of a right of way in favour of the owner of the land, is a licence to occupy within the section. If a landowner enters into partnership with a farmer and the partnership farms the land, in the absence of express provisions to the contrary, the landowner partner occupies the land as owner and the farmer partner occupies the land as licensee of the landowner but without the right to exclude the landowner from the land; the farmer's non-exclusive licence to occupy is not converted by S.2. A licence to occupy for a period greater, or less, than a year may be converted under S.2."
"To come within section 2 (1) of the Agricultural Holdings Act 1948 the licence granted under an agreement must be a "licence to occupy land for use as agricultural land." To satisfy this requirement the right of occupation for agricultural purposes must be an exclusive right under which the grantee is entitled to prevent the grantor and any other person authorised by the grantor from making any use of the land, at any rate for agricultural purposes, during the period of the grant. The application of section 2 (1) of the Act to licences to occupy land for use as agricultural land was, in my view, correctly stated by Davies L.J. in Harrison-Broadley v Smith [1964]1 WLR 456 , 470, where he said:
"… there cannot be such a licence without a right of exclusive occupation during the currency of the licence in the licensee as against the licensor for that purpose." "
Proprietary estoppel
(1) Michael's Land (i.e. excluding the Long Field) = 1/12 + ½ = 7/12;
(2) Richard's Land (i.e including the Long Field and the Duver) = 1/12 + NIL = 1/12;
(3) The Manor House = 1/12 + 1/10 = 11/60;
(4) Brading Marshes = 1/12 + 1/10 = 11/60;
(5) Landguard = 1/12 + 1/10 = 11/60;
(6) Wrax Marshes = 1/6.
"My Lords, this appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007), p 101) has recently commented: "There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither)." Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance: see Megarry & Wade, The Law of Real Property , 7th ed (2008), para 16–001; Gray & Gray, Elements of Land Law , 5th ed (2009), para 9.2.8; Snell's Equity , 31st ed (2005), paras 10–16 to 10–19; Gardner, An Introduction to Land Law (2007), para 7.1.1."
"Lord Walker, in para 29 of his opinion, identified the three main elements requisite for a claim based on proprietary estoppel as, first, a representation made or assurance given to the claimant; second, reliance by the claimant on the representation or assurance; and, third, some detriment incurred by the claimant as a consequence of that reliance. These elements would, I think, always be necessary but might, in a particular case, not be sufficient. Thus, for example, the representation or assurance would need to have been sufficiently clear and unequivocal; the reliance by the claimant would need to have been reasonable in all the circumstances; and the detriment would need to have been sufficiently substantial to justify the intervention of equity."
"But although the judgment is, for convenience, divided into several sections with headings which give a rough indication of the subject matter, it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round."
The Trusts of Land and Appointment of Trustees Act 1996
"1 Meaning of "trust of land"
(1) In this Act—(a) "trust of land" means (subject to subsection (3)) any trust of property which consists of or includes land, and(b) "trustees of land" means trustees of a trust of land.(2) The reference in subsection (1)(a) to a trust—(a) is to any description of trust (whether express, implied, resulting or constructive), including a trust for sale and a bare trust, and(b) includes a trust created, or arising, before the commencement of this Act.(3) ……
12 The right to occupy
(1) A beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land is entitled by reason of his interest to occupy the land at any time if at that time—(a) the purposes of the trust include making the land available for his occupation (or for the occupation of beneficiaries of a class of which he is a member or of beneficiaries in general), or(b) the land is held by the trustees so as to be so available.(2) Subsection (1) does not confer on a beneficiary a right to occupy land if it is either unavailable or unsuitable for occupation by him.(3) This section is subject to section 13.
13 Exclusion and restriction of right to occupy
(1) Where two or more beneficiaries are (or apart from this subsection would be) entitled under section 12 to occupy land, the trustees of land may exclude or restrict the entitlement of any one or more (but not all) of them.(2) Trustees may not under subsection (1)—(a) unreasonably exclude any beneficiary's entitlement to occupy land, or(b) restrict any such entitlement to an unreasonable extent.(3) The trustees of land may from time to time impose reasonable conditions on any beneficiary in relation to his occupation of land by reason of his entitlement under section 12.(4) The matters to which trustees are to have regard in exercising the powers conferred by this section include—(a) the intentions of the person or persons (if any) who created the trust,(b) the purposes for which the land is held, and(c) the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.(5) The conditions which may be imposed on a beneficiary under subsection (3) include, in particular, conditions requiring him—(a) to pay any outgoings or expenses in respect of the land, or(b) to assume any other obligation in relation to the land or to any activity which is or is proposed to be conducted there.(6) Where the entitlement of any beneficiary to occupy land under section 12 has been excluded or restricted, the conditions which may be imposed on any other beneficiary under subsection (3) include, in particular, conditions requiring him to—(a) make payments by way of compensation to the beneficiary whose entitlement has been excluded or restricted, or(b) forgo any payment or other benefit to which he would otherwise be entitled under the trust so as to benefit that beneficiary.(7) The powers conferred on trustees by this section may not be exercised—(a) so as prevent any person who is in occupation of land (whether or not by reason of an entitlement under section 12) from continuing to occupy the land, or(b) in a manner likely to result in any such person ceasing to occupy the land,unless he consents or the court has given approval.(8) The matters to which the court is to have regard in determining whether to give approval under subsection (7) include the matters mentioned in subsection (4)(a) to (c).…
18 Application of Part to personal representatives
(1) The provisions of this Part relating to trustees, other than sections 10, 11 and 14, apply to personal representatives, but with appropriate modifications and without prejudice to the functions of personal representatives for the purposes of administration.(2) The appropriate modifications include—(a) the substitution of references to persons interested in the due administration of the estate for references to beneficiaries, and(b) the substitution of references to the will for references to the disposition creating the trust.(3) Section 3(1) does not apply to personal representatives if the death occurs before the commencement of this Act.…
22 Meaning of "beneficiary"
(1) In this Act "beneficiary", in relation to a trust, means any person who under the trust has an interest in property subject to the trust (including a person who has such an interest as a trustee or a personal representative).(2) In this Act references to a beneficiary who is beneficially entitled do not include a beneficiary who has an interest in property subject to the trust only by reason of being a trustee or personal representative.
23 Other interpretation provisions
(1) In this Act "purchaser" has the same meaning as in Part I of the Law of Property Act 1925.(2) Subject to that, where an expression used in this Act is given a meaning by the Law of Property Act 1925 it has the same meaning as in that Act unless the context otherwise requires."
(1) he was a beneficiary;
(2) who was beneficially entitled;
(3) to an interest in possession in land;
(4) subject to a trust of land; and
(5) the purposes of the relevant trust included making the land available for his occupation; or
(6) the land was held by the trustees so as to be so available.
Payment by Michael for his occupation
The Single Payment Scheme
The Administration of Estates Act 1925
Other matters
The next steps