Whether gift of 'my apartment' was free of mortgage


In Re the estate of David Ross, deceased [2004] EWHC 2559 (Ch)



The deceased executed a home-made will shortly before going into hospital for an operation on a brain tumour.


His major assets were the lease of a first-floor maisonette, the freehold reversion of the building containing the maisonette and an endowment policy taken out at the time he bought the maisonette and reversion to cover the exact amount of the mortgage. The policy was originally assigned to the mortgagee, Town & Country. Town & Country was taken over by the Woolwich, which had a policy of not taking formal charges over linked endowment policies. The deceased was not informed of the change. In the month in which he died, the deceased increased the monthly premiums on the policy to cover a predicted shortfall in the amount the policy would produce.


The deceased's will left 'my apartment and contents' to his fiancée, Irene, and the residue of his estate to be divided as to 50% to Irene and 25% to each of his two brothers. There was no reference to the endowment policy or to the freehold reversion.


The deceased's brothers contended that Irene took the maisonette subject to the mortgage under section 35 of the Administration of Estates Act 1925, and that the policy was part of the residue of the estate. They also contended that the freehold reversion passed as part of the residue of the estate.


Section 35 of the Act provides that a person taking property that has a debt charged on it, takes it subject to that debt provided the deceased 'has not by will, deed or other document signified a contrary intention'.


It was common ground that the will contained no contrary intention. However, Leslie Kosmin QC (sitting as a deputy judge of the Chancery Division) held that it was possible to rely on any documents whether created before or after the will and said that 'the court must recognise in this context the widespread use in property transactions of the endowment mortgage'. The actions of the deceased in taking out the policy at the same time as the mortgage and charging the policy to Town & Country in support of the loan, coupled with the later written agreement to increase the monthly premiums, were evidence that it was the deceased's intention that the property should not remain charged with the mortgage in the event of his death. He held that this documentary material was sufficient for the purposes of section 35.


The court then considered whether the gift of 'my apartment' passed the freehold reversion as well as the lease. It found that it did.



While the court cannot rewrite a will, it can take surrounding circumstances into account when construing ambiguous language (see section 21 of the Administration of Justice Act 1982). The expression was certainly ambiguous and the court was, therefore, able to consider Irene's witness statement as to the deceased's intentions. Re Fleming [1974] 1 WLR 1552 was also relevant. In this case, Mr Justice Templeman (as he then was) had held that a devise of property should normally be construed as a gift of whatever interest in the property the donor has at the date of death.



The decision is clearly important when considering the administration of an estate containing property subject to a debt. However, the advice to practitioners drafting wills where there is a mortgage and a life policy must still be that it is vital to make express provision for the burden of a mortgage and the destination of the policy.



Undue influence and lifetime gifts



Aldridge & Hunt v Turner [2004] EWHC 2768 (Ch)



This is yet another case involving allegations of undue influence. It is interesting because the court accepted the proposition that gifts of individually modest amounts could give rise to the presumption of undue influence when added together.


There were 62 transactions that depleted the deceased's resources by £25,000 at a time when his regular monthly income was less than £2,000. On the facts, some of the transactions were legitimate but others were wholly unauthorised or the result of undue influence. The defendant, the deceased's son, had to account to the estate for the unauthorised withdrawals and also for some loans made in the 1990s that he had never repaid.



The executors had argued that to the extent any of the payments were held to be legitimate, they should be treated as adeeming pro tanto the share of the residuary estate left to the deceased's son. The court held that the only legitimate gifts that had been identified as for the benefit of the son were too insignificant to trigger the rule against double portions.



Inheritance tax update



The December inheritance tax (IHT) newsletter contains guidance on dealing with household and personal goods when completing an IHT 200 and supporting documentation. It makes the point that valuations should be at open market value and that the Inland Revenue will want a full explanation of the basis of valuation.


In the case of cars, the registration number should be given even if the personal representatives consider that it has no separate value. In the case of holiday homes abroad, it will expect a separate valuation of contents.


From January 2005, the Inland Revenue is paying particular attention to the values given for household and personal goods and may ask for photographs and further information. Where the Revenue considers that those accountable (or their advisers) have been negligent, it may impose penalties.


The newsletter makes a plea that any cheques included in correspondence be placed on the top of the correspondence to ensure they are easily spotted.


The Non-Contentious Probate Fees Order 2004 (SI 3120/2004) came into force on 4 January 2005. It reduces the fee for an application for a grant where the assessed value of the estate exceeds £5,000 to £40 from £50 and the fee for a personal application in the same circumstances to £50 from £80.


By Lesley King, College of Law, London