A3/2005/2699
Neutral Citation Number: [2006] EWCA Civ 250
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(HIS HONOUR JUDGE WEEKS)
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 27th February 2006

B E F O R E:

LORD JUSTICE CHADWICK

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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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(DAR Transcript of 
Smith Bernal Wordwave Limited
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THE FIRST APPELLANT APPEARED IN PERSON. 
 
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED. 

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J U D G M E N T
1.	LORD JUSTICE CHADWICK:  This is an application for permission to appeal from an order made on 27 September 2005 by HHJ Weeks QC, sitting as a Deputy Judge of the High Court in the Bristol District Registry of the Chancery Division, in proceedings brought by Mr Ivor Pudner against his brother Mr Reginald Pudner and his sister Mrs Elizabeth Seaman.  The parties are three of the six children of Mrs Sarah Pudner. She died on 1 September 2004, having survived her husband by nearly 40 years.  Mr Reginald Pudner and Mrs Seaman were named as executors in the will of their mother made on 22 January 2002.  Mr Ivor Pudner and Mrs Seaman had been named as executors in an earlier will made by Mrs Sarah Pudner on 12 February 1987.  

2.	There were two principal issues in the proceedings.  First, Mr Ivor Pudner challenged the validity of the later will.  Second, he sought a declaration that he was entitled by survivorship to the whole beneficial interest in the proceeds of sale of property known as 26 Byron Avenue, Plymouth which, at the death of Mrs Sarah Pudner, was registered at HM Land Registry in their joint names as registered proprietors.  

3.	The judge found in favour of Mr Ivor Pudner on the second of those issues.  The effect of that finding was that the estate which passed on the death of Mrs Sarah Pudner – under whichever will was her last true will – was of little value.  In those circumstances, Mr Ivor Pudner, who had really relied upon the earlier will in order to claim all his mother’s property as beneficiary under its terms, took the view that there was no need for him to continue to oppose the later will.  He applied to discontinue his challenge in probate: and the judge made no order on that issue.  

4.	At the conclusion of his judgment the judge was told by both Mr Reginald Pudner – who had appeared before him in person on his own behalf and on behalf of his sister, Mrs Seaman – that they did not wish to appeal his order declaring that Mr Ivor Pudner was entitled to the whole beneficial interest in the house by survivorship.  So, as he recorded in his order, the judge did not grant permission to appeal.  Mr Reginald Pudner has since changed his mind.  By an appellant’s notice, purportedly filed on 4 November 2005 but which bears the date 29 November 2005 under the court’s seal, he now seeks to appeal against paragraphs 1 and 3 of the judge’s order of 27 September 2005.  Paragraph 1 of the order is the declaration as to beneficial ownership.  Paragraph 3 ordered that the costs relating to that element of the claim be paid by the defendants personally: those costs were not to be raised and paid out of the estate as executors’ expenses.  The judge took the view that if the executors had wanted that protection, they should have sought an order that these proceedings were properly to be defended at the expense of the estate.  That appeal is of course out of time.  

5.	The property known as 26 Byron Avenue, Plymouth was purchased from Plymouth City Council under the ‘right to buy’ legislation in the Housing Act 1985.  At the time of purchase the property was not registered at HM Land Registry.  It was conveyed to Mrs Sarah Pudner and Mr Ivor Pudner by a conveyance dated 8 December 1986.  The conveyance contains an express declaration, at clause 8, that the purchasers agreed that they were to hold the property as joint tenants in equity.  The conveyance was executed by both Mrs Sarah Pudner and Mr Ivor Pudner as purchasers.  It is said that the conveyance was in a standard form which admitted of no changes.  But it is a typed document to which changes have in fact been made by the parties, both in the form of riders which contain additional provisions and by striking out clauses which the parties did not want.  I can see no reason why the council should have objected to an amendment to clause 8(a) – which contains the agreement as to joint beneficial ownership in equity – if the purchasers had desired it.  The fact is that that clause was left in the conveyance.  

6.	The judge observed, correctly, that in the absence of fraud or mistake, a declaration in a conveyance signed by the purchasers that they are to hold the property as joint tenants in equity is conclusive as to their joint beneficial interest in the property conveyed to them.  If authority is needed for that proposition it can be found in the speech of Lord Upjohn in Pettit v Pettit [1970] AC 777 at page 813 E-F; and, more recently, in the judgment of  Slade LJ in this court in Goodman v Gallant [1986] Fam 106 (CA) at 111 A-B.  The judge found that there was no question of fraud in the present case. The judge found, also, that there was no evidence of a mistake in the conveyance.  He stated his conclusion in the following paragraph of his judgment:

“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.”

7.	The “mistake by the solicitors” to which the judge refers in that paragraph was a mistake when applying for first registration of the property conveyed by the conveyance of 8 December 1986.  The application for first registration was made on Land Registry Form 1B, which the solicitors completed on 12 December 1986 and lodged with the Plymouth District Land Registry on 15 December 1986.  The Land Registry Form contains a section – section 7 – which requires a statement to be made by entering a cross in the appropriate box.  The choices offered are: (a) the applicant is the sole beneficial owner of the land; (b) the applicants are joint owners holding the land for themselves as beneficial joint tenants; (c) the applicants are joint owners holding the land for themselves as tenants in common; and (d) the applicants hold the land in some other way (to be specified).  When the solicitors completed form 1B they put a cross in box (c) to the effect – thereby representing that the applicants were joint owners holding the land for themselves as tenants in common.  

8.	An application in that form led, as would be expected, to entry of a restriction in the proprietorship register of the title.  The restriction was to the effect that there should be no disposition by a survivor of the registered proprietors except under order of the registrar or of the court.  Such a restriction – commonly known as a joint proprietorship restriction – is consistent with a beneficial tenancy in common: it is not a beneficial joint tenancy, where the survivor becomes entitled to the whole beneficial ownership.  But the entry of the restriction cannot, of itself, alter the underlying rights of the parties.  Co-owners who are equitable joint tenants do not become equitable tenants in common by reason of the entry of a restriction in that form by the Land Registry.  If the beneficial joint tenancy – which arose by virtue of the declaration in the 1986 conveyance – was to become a beneficial tenancy in common, it was necessary that – after execution of the conveyance – the parties so agreed, or one of them has served notice of severance on the other under section 36 of the Law of Property Act 1925.

9.	The completion of Land Registry Form 1B by the solicitors is some evidence of an agreement between Mrs Sarah Pudner and her son, Ivor – between the execution of the conveyance and completion of the form – that they had agreed to sever the joint tenancy.  But it is equally consistent with a mistake on the part of the solicitors.  The judge found – as he was bound to do if he accepted Mr Ivor Pudner’s evidence of intention (as he did) – that the explanation for the Land Registry Form 1B lay in the solicitors’ mistake and not in an agreement between the co-owners.  

10.	In reaching that conclusion the judge took account of a note made by the Land Registry on examination of title on first registration on 16 June 1987.  The note is in these terms:

“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. 

11.	The judge was plainly correct in his view that the Land Registry note took the matters no further.  If the solicitors had mistaken their instructions when completing Land Registry Form 1B on 12 December 1986, the note of 16 June 1987 does no more than confirm that the solicitors remained under the same mistake six months later.  The relevant question was: why did the solicitors complete the form as they did?  The evidential lacuna was identified by the judge in a passage of his judgment at page 4 of the transcript between F and G, when he said:

“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.  

12.	On 12 February 1987, Mrs Sarah Pudner and Mr Ivor Pudner each made a will.  In each will the testator devised and bequeathed to the other:

“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.  

13.	Mrs Sarah Pudner made a subsequent will on 23 January 2002.  That would have been the opportunity, if she were minded to do so, for her to make clear that she wished to sever any joint tenancy then existing, and to give her half of the proceeds of 26 Byron Avenue away from Mr Ivor Pudner.  But she did not do that.  What she did was to give certain pecuniary legacies and then “the whole of the rest of my estate both real and personal”.  The will contains no specific bequest of a half share of 26 Byron Avenue.

14.	The applicant, Mr Reginald Pudner, seeks to take a point on appeal which he did not, I think, take before the judge.  In his skeleton argument in paragraph 18 he says:

“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.
  
15.	In my view, whether or not it was taken before the judge, that point could not be made good on an appeal.  In the first place, neither the will in 1987 nor the will of 2002 contains words of severance.  In the second place, there was no evidence – and the judge made no finding – that the contents of the 2002 will were ever disclosed by his mother to Mr Ivor Pudner before her death.  And it cannot be assumed that she did.  It is not unusual for a parent who proposes to cut a child out of the estate to choose not to disclose to that child that the testamentary dispositions have been altered.  

16.	The judge was plainly correct to hold that the beneficial interests, immediately after the conveyance of 8 December 1986, were determined by the express declaration in clause 8(a) of that conveyance.  Nothing that happened thereafter had the effect of severing the beneficial joint tenancy which arose under that conveyance.  An appeal from the judge’s order under paragraph 1 would have no prospect of success.

17.	Further, the judge was plainly entitled to take the view that the costs associated with asserting the existence of a tenancy in common – notwithstanding the terms of the conveyance – should fall on Mr Reginald Pudner and his sister rather than on the beneficiaries under the 2002 will.  There was nothing to suggest that those beneficiaries – some of whom were, I think, minors – had been consulted as to the wisdom of contesting Mr Ivor Pudner’s claim to be entitled by survivorship. There is no prospect of a successful appeal against the costs order in paragraph 3 of the judge’s order.  

18.	For those reasons this application must be refused.

Order: Application refused.