Pearce v Beverley [2013] EWHC 2627 (Ch)





John Pearce (Mr Pearce) died on 23 July 2008. His daughter, the claimant, challenged the validity of a will purportedly made by Mr Pearce on 20 June 2007 (the will) on grounds of lack of capacity and want of knowledge and approval, and also challenged a number of lifetime transactions said to be procured by the defendant’s undue influence.

Mr Pearce’s second marriage broke down in 2004 and he consequently became lonely and depressed. His health was generally deteriorating. He suffered from partial kidney failure, which was first noted in March 2005, and by 2006 from speech impairment, anxiety and suspected Parkinson’s disease. In March 2007 Mr Pearce was diagnosed with prostrate cancer, for which he received hormone treatment. A psychiatrist concluded that he was suffering from adjustment disorder in July 2007 and in November 2007 he was formally diagnosed with Parkinson’s disease.

Mr Pearce and the defendant had a brief relationship in 1976, when the former was 33 and the latter 19 years of age. Thereafter they were acquaintances and the defendant married a Mr Beverley. However, in the spring of 2005 the pair met socially, discussing Mr Pearce’s recent separation and the defendant’s marital difficulties. Following this the defendant left her husband in April 2005 and moved in with Mr Pearce. The exact nature of Mr Pearce and the defendant’s relationship, from this point until his death, was unclear but it was not in dispute that Mr Pearce trusted the defendant with the management of his financial affairs and that she assisted him in ancillary relief proceedings against his ex-wife.

In settlement of his ancillary relief proceedings, Mr Pearce agreed to make a payment of £103,500 to his ex-wife in full and final settlement. To meet this settlement sum, Mr Pearce’s property, known as 1 Rose Grove, was remortgaged. The defendant contributed £16,116.86 to meet a cash shortfall. On 19 June 2006 1 Rose Grove was transferred into Mr Pearce and the defendant’s joint names as beneficial joint tenants, providing the defendant with a beneficial share worth £37,500 and thus an immediate return of over £20,000 on her investment.

On 18 June 2007, Ms Mahon, a solicitor of 23 years’ experience, attended Mr Pearce for the purpose of making a will. Ms Mahon recalled that the defendant had stated that Mr Pearce was unable to speak for himself but that he wanted to leave everything to her. Ms Mahon was concerned about Mr Pearce’s capacity and so sought consent to consult his GP. She recalled that at this point the defendant got angry and stormed out of the room. The defendant disputed this version of events, but the judge preferred Ms Mahon’s account. On 20 June 2007, a Mr Gaygan, an employee of the Will Writing Company who was not called to give evidence, attended Mr Pearce. The will was purportedly executed on the same day, leaving Mr Pearce’s entire estate to the defendant.

On 14 September 2007 a sale of 1 Rose Grove was completed, the net proceeds of sale amounting to £117,080.44. On 14 September 2007 a property known as 23 Turn Lea was purchased for £128,000 and transferred into the joint names of Mr Pearce and the defendant. This purchase was funded partly from the proceeds of 1 Rose Grove and party by a secured loan of £47,000. The surplus proceeds of 1 Rose Grove, some £48,907.05, were paid into Mr Pearce and the defendant’s joint account. On 31 August 2007, Mr Pearce’s other property, 38 Mitchell Street, was also sold. The net proceeds, amounting to £61,415.17, were paid into Mr Pearce and the defendant’s joint account. The defendant accepted in cross-examination that she negotiated and completed the contracts for both sales. She provided no explanation for why the proceeds were not deposited in Mr Pearce’s sole account, other than that it was allegedly what he had wanted.

On 16 May 2008, the defendant purchased for £76,000 a property known as 48 Burnley Road. This property was conveyed into the defendant’s sole name. It was common ground that the purchase was funded from the proceeds of 1 Rose Grove and 38 Mitchell Street. The defendant had contended that this was done so as to enable her to deal efficiently with all matters relating to the property, but in cross-examination suggested the purpose was to avoid conflict with the claimant following his death.

Following Mr Pearce’s death, £24,511, being the entire net proceeds of an LV life assurance policy, was paid to the defendant. Very little documentation relating to this policy was disclosed, but the judge inferred that in January 2006 Mr Pearce had nominated the defendant as sole beneficiary of the policy. This nomination replaced the previous nomination, made in 2002 before Mr Pearce and the defendant had formed the relevant relationship and so, it was inferred, must have been for the benefit of some other person.


  1. (1) As a result of his various physical and mental conditions, and following the concerns of an experienced family and probate solicitor when attending upon him for the purpose of drafting a will, there was real doubt about Mr Pearce’s testamentary capacity in June 2007 and the evidential burden therefore shifted to the defendant to prove capacity. Similarly, Mr Pearce’s vulnerability excited the suspicions of the court and thus shifted the evidential burden to prove that he knew and approved the will to the defendant. The judge found the defendant to be an unreliable witness and concluded that he could not rely on her account without corroboration, of which there was none. Accordingly, the court pronounced against the will and, in the absence of any other testamentary script, found that Mr Pearce died intestate.
  2. (2) It was not in dispute that Mr Pearce placed trust and confidence in the defendant in the conduct of his financial affairs. Each of the transactions queried by the claimant called for an explanation: (i) the transfer of 1 Rose Grove into joint names was to the defendant’s financial advantage beyond her contribution; (ii) 23 Turn Lea was purchased with the proceeds of 1 Rose Grove and thus if the transfer of 1 Rose Grove was tainted with undue influence and liable to be set aside so also would this transaction; (iii) the deposit of 38 Mitchell Street’s sale proceeds into a joint account could not be accounted for on the grounds of friendship or the other ordinary motives on which ordinary men act; (iv) 48 Burnley Road was purchased with the proceeds of 1 Rose Grove and 38 Mitchell Street; and (v) the LV policy replaced an earlier policy obtained before Mr Pearce and the defendant became reacquainted in 2005. Thus the burden of proof shifted to the defendant to prove Mr Pearce undertook these transactions in circumstances which enabled him to exercise an independent will.
  3. (3) Other than the defendant’s assertions that these queried transactions were in accordance with Mr Pearce’s wishes there was no evidence that they were not procured by an abuse of position. Accordingly, as the judge found the defendant an unreliable witness, the defendant failed to discharge the burden of proof with the following result:
  4. (a) The transfer of 1 Rose Grove was procured by undue influence and liable to be set aside, subject to crediting the defendant with her contribution of £16,116.86.
  5. (b) 23 Turn Lea was purchased with the proceeds of 1 Rose Grove and Mr Pearce’s estate had a tracing remedy with the result that the property was held on trust for the estate, subject to any equitable accounting in respect of mortgage payments since Mr Pearce’s death.
  6. (c) The payments of £48,907.05, £61,415.17 and £24,511 paid into the joint account were procured by undue influence and the payments were liable to be set aside. As the purchase price of £76,000 for 48 Burnley Road was paid out of the first two of these sums, this property was held on trust for Mr Pearce’s estate, subject to equitable accounting for any outgoings, occupation rent, moneys spent on repairs and rents received by the defendant.
JUDGMENT HHJ BEHRENS: Introduction [1] This is a claim by the claimant, Colette Pearce, following the death of her father, John Pearce, on 23 July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the defendant, Elizabeth Beverley, or …
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Counsel Details

Sarah Greenan (Zenith Chambers, 10 Park Square, Leeds LS1 2LH, tel 0113 245 5438, e-mail, instructed by Duffi Fowler Gabbi (5-6 Wragley House, Valley Road, Hebden Bridge HX7 7BN, tel 01422 844 110, e-mail for the claimant. The defendant appeared as a litigant in person.

Legislation Referenced

  • Mental Capacity Act 2005, s2(4)