Posted by: RM | November 23, 2009

Testamentary Disposition & Subsequent Assent: One Transaction

The Court of Appeal has recently delivered its judgment in Thompson v Bee & Anor [2009] EWCA Civ 1212. The case concerns a right of way which is annexed to a property devised by the will of Mrs Edith Thompson, which was executed in September 1974 (the testatrix died in 1975). By her will Mrs Thompson left her house, Pear Tree House, to her grand-daughter (who became Mrs Bee), the respondent, “subject … to a right of way as existing at the date of [her] death to the Garth at the rear thereof…”. Mrs Thompson left the Garth (about an acre of “back land”, situated to the rear of Pear Tree House, on which stood a rather dilapidated old slaughterhouse – unused – and piggery – occasionally used, primarily for storage), which she also owned, to her son, Mr George Thompson, which he later transferred in 1989 by Deed of Gift to Mr Stephen Thompson, the appellant. The Garth is accessed by way of a rough hard core track which is situated on the land of Pear Tree House and which also gives access to the garage of that property. At the end of the track there is a steep drop over rough land with a gate leading into the Garth.

At the time Mrs Thompson wrote her will Pear Tree House and the Garth were in her common ownership. Whilst the track was clearly visible on the ground it cannot be said that an easement (right of way) existed over the track because it is trite law that “an easement is some right which a person has over land which is not his own … you cannot have an easement over your own land…” (per Lord Esher MR, Metropolitan Railway Co v Fowler [1982] 1 QB 165, 171). In her will she gave Pear Tree House to her grand-daughter subject to the right of way detailed above. She also bequeathed the Garth to Mr George Thompson “… together with the right of way … across the rear of Pear Tree House at all times and for all purposes connected with the said garth …” (ie over the track).

Of course, the will simply passed the title of the properties to the executors. There were two assents made by the executors in 1977 which gave effect to the terms of the will. Hence, it is the assents and not the will which had the effect of passing title to the respondent and the appellant’s predecessor in title. The trial judge held that the clauses referred to in the will which granted / reserved the right of way across the track for the benefit of the Garth were to be read into the later assents, thereby recognising that this was all part of one transaction. In contrast, the respondent’s contention, which was, according to Mummery LJ, a “contention  … rooted in the remorseless logic of conveyancing law and practice”, was that the will caused the title of the properties to pass to the executors; this was one transaction. The assents, which vested the title of the properties in the beneficiaries, were, according to the respondent, a second and separate transcation. The assent of Pear Tree House took place a few days before the assent of the Garth. The significance of this distinction is concerned with the fact that no express right of way for the benefit of the Garth as retained land (by the executors, at the time the assent of the title to Pear Tree House was made) was reserved in the assent of Pear Tree House to the respondent. The absence of an express reservation was, it was argued, fatal to the claim that an easement of the character referred to in the will of Mrs Thompson had been created for the benefit of the Garth over the track. Thus, the only right of way which could have been impliedly reserved by law was one of necessity (which would be interpreted very narrowly).

The Court of Appeal rejected the approach advocated by the respondent because “without any legal justification, it requires the court to ignore totally the relevant intentions expressed by the testatrix in her will on the very matter of a right of way over the track for the benefit of the Garth. The fact that the assent is the document of title to Pear Tree House does not consign the will to the scrap heap when ascertaining the intentions of [the testatrix]”. By reference to both statute (section 36(2) of the Administration of Estates Act 1925) and common law (Phillips v Low [1892] 1 Ch 47; George Attenborough & Son v Solomon [1913] AC 76) the Court of Appeal held that the will and the subsequent assents, giving effect to the terms of the will, were to be treated as a single transaction. Thus, the respondent’s highly technical approach to this question was rejected.

Having determined that the right of way over the track for the benefit of the Garth was to be treated as having been created by the will and the subsequent assent, it was then necessary to determine the nature and extent of that easement. At the time of the transfer of the Garth to the appellant’s predecessor in title, the property was little used except for occasional grazing and for storage in the dilapidated buildings. At the time of this litigation the appellant had secured planning permission to develop part of the Garth by erecting one detached dwelling and two semi-detached dwellings. At first instance the judge had held that the right of way along the track was limited to use connected to agricultural purposes (and he granted an injunction forbidding use of the right of way for purposes other than agricultural purposes). The judge had made this finding because reference to the right of way being “for all purposes connected with the said Garth” he had interpreted as meaning circumstances existing at the time of the death of the testatrix. At the time of her death the Garth was identified as being subject to agricultural use which would have necessitated access by the odd car, van, tractor or agricultural vehicle. The track was also used, of course, for access to the garage of Pear Tree House. The judge concluded that recognising the right of way as permitting access to and from a residential development of the sort proposed by the appellant would seem to be excessive and more than likely to cause a nuisance to the owners of Pear Tree House and other owners and occupiers of the houses on the Garth trying to exit or enter their properties.

In the appeal, whilst the court thought that the judge was not justified in interpreting “all purposes connected with the said Garth” as being restricted to agricultural purposes, it was held that a right of way for the purposes intended was too excessive. In conclusion, the Court of Appeal substituted the judge’s declaration for a declaration to the effect that the appellant’s right of way does not permit user for the three residences proposed to be erected on the Garth. The injunction was varied to reflect the substituted declaration.

This case presents an interesting illustration of the difficulties which can arise where relatively aged and imprecisely determined rights are relied upon to facilitate new uses of land; in particular uses which reflect the current trend for developing pockets of unused agricultural land (where planning permission can be obtained) with a tendency for relatively high density schemes. Mummery LJ concluded by saying that “in light of the judgments … the parties will have to reconsider their positions. They should seriously consider settling any further differences about the right of way without yet more litigation. As this case shows litigation of the neighbour kind is sometimes uncertain in outcome, often punishing in costs and, win or lose, is always, for those who are still neighbours (in this case relatives), far from the Swiftean ideal of “sweetness and light”.” Sobering stuff.

From a purely legal perspective, this decision confirms that the terms contained in the will and the assents which facilitate the testamentary bequests should be read together, as one transaction, rejecting the idea that the testamentary provision and the subsequent assent should be viewed as two distinct transactions, each being independent of the other.


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