PT-2023-001131 - [2025] EWHC 2728 (Ch)

Before addressing the issues in the claim, I will first recount the history of the relationship between the parties and record my findings on various matters of disputed fact, to the degree necessary.

The Defendant is an English qualified solicitor. Until recently, she was an Executive Vice President and General Counsel of Novus Aviation Capital LLC. She lives in Switzerland, although she also has properties in Paris and Mauritius. The Defendant is one of the daughters of the Deceased.

The Claimant describes himself as someone who develops and renovates properties for a living. The Claimant is one of the Deceased’s grandchildren.

The Deceased died on 30 July 2021. She is referred to as “Mamie” in the written messages passing between the Claimant and the Defendant. The Deceased left a will dated 16 July 2009 (“the Will”). The Defendant was one of the beneficiaries of the Will and is its sole executor.

The Will makes the following testamentary dispositions:

The net value of the estate in England and Wales was sworn for probate at the value of £1,679,570. As I have already noted, the principal asset of the English estate was the Property. The Deceased and her husband acquired the Property in the 1950s or 1960s. The Deceased lived in the Property until her death. The Property has five stories, with a basement flat (which was rented out), and three floors above the ground floor. The top floor was also rented out.

The Deceased’s funeral was held in August 2021. The Claimant and the Defendant, having not seen each other for several years, reconnected. On 22 September 2021, the Claimant texted the Defendant to say that “I have got an amazing idea I think Mamie would be proud and it will keep the house in the family forever … no one would be able to sell it ...” The Defendant indicated that she was “all ears”.

The two of them met at the Property on 4 October 2021. It is agreed that the Claimant explained his “amazing idea” that the Property could be retained by the Defendant, to be sub-divided with a view to renting out the units to provide an income to the beneficiaries under the Will. The Defendant rejected that idea. This much appears to be agreed by the parties. She was not interested in holding the Property, considering this to be impractical and costly. Her husband was very ill at the time, and she wanted to concentrate on him.

What was discussed next is disputed. The Defendant’s case is that she suggested that the Claimant could buy the Property from the estate, using the Defendant’s one third share as collateral to obtain a commercial loan. The self-contained basement flat could be rented out, and the top floor could also take lodgers, and the income from these lettings could be used to pay any mortgage. This would leave the middle floors for the Defendant to live in for life.

I find the Defendant’s account regarding this agreement, supposedly reached between the parties on 4 October 2021, implausible. I prefer the Claimant’s evidence on this point, to the effect that the idea of his buying the Property came later, for the following reasons:

I find the Claimant’s position, also supported by that of Mrs Canarapen and Mr Gill, more plausible. The notion that the Claimant might purchase the Property, using the Defendant’s 1/3 interest in the Property as a form of deposit, only emerged later, probably in June or July 2022.

What the Claimant did agree to do in October to November 2021 was to try and improve the physical condition of the Property. The Defendant’s intention at the time was to live at the Property during her visits to London, whilst she was an executor. The Defendant felt a strong emotional connection to the Property. She had spent her childhood there. Over the next few weeks, the Claimant and his uncle, Mr Maghoo, worked at the Property. The Defendant sent several texts in which she effusively thanked the two of them for their work.

In November 2021 the Defendant went to her solicitors (who also act for her in this litigation). There is an attendance note, dated 18 November 2021, recording the advice given. The first matter dealt with in the note is a dispute with one of the other beneficiaries, Desiree, about documents belonging to the estate. The note then goes on to record that the Defendant wanted to give her 1/3 interest in the estate to the Claimant and Mr Maghoo “… because you want mother’s house to stay in the family.” The note then says that the Defendant can give away her share, but this “couldn’t affect other benefs” (obviously a reference to “other beneficiaries”). There is then these words: “Q – can [the Claimant] buy them out – possibly.”

This attendance note (which was disclosed by the Defendant shortly before trial) is consistent with the conclusion I have reached that there was no fixed agreement reached on 4 October 2021 that the Claimant would be buying the Property; otherwise, the Defendant would not have been considering passing her interest to Mr Maghoo as well as the Claimant. It does not reflect any settled and fixed agreement that the Defendant was to live in the Property “for life”. The Defendant was exploring the possibility of acquiring the Property from the estate.

Subsequently, the Defendant instructed her solicitors to draft the Deed. The draft Deed was then sent by the Defendant to the Claimant on 23 December 2021, attached to an email which reads:

“Attached the Deed of Variation. Please print 2 originals, sign at the bottom where indicated before a witness, complete witness details, do not date and return both to me by post for me to sign and date and I will return obr (sic) original back to you. Please mail both originals after execution by you and your witness to me at: 15 rue de Buci Paris 75006 France.”

The Claimant signed the Deed and returned the signed copy to the Defendant. The Defendant did not sign it immediately. This was because the Defendant appears to have considered acquiring the Property herself from the estate. This conclusion is supported by the Defendant’s text on 31 December 2021 (on the Mamie Dancer Road WhatsApp group to the Claimant and Mr Maghoo). The message asked both the Claimant and Mr Maghoo what they would want or expect to receive, supposing they were beneficiaries set to receive a one-third share of the estate. Both men found the message curious. The Defendant was considering her options at this point concerning the way forward on the Property.

The Defendant prepared a first report, dated 31 January 2022, to the beneficiaries under the Will. There is evidence that the Defendant’s relations with the other beneficiaries were not good. The handwritten solicitor’s attendance note to which I have already referred of 18 November 2021 refers to the Defendant, in her capacity as executor, having difficulty obtaining documents from one of the beneficiaries, Desiree.

At Easter 2022, the Defendant met the Claimant, his wife and their children for an Easter lunch. The Claimant’s case, supported by Mrs Canarapen, is that the Defendant said that the provision of the Deed would “right the wrongs of the past”. The Defendant denied saying this. She said that the expression “righting wrongs” was something said by Mrs Canarapen. The Defendant’s case is that she was “very moved” by speaking to the Claimant and his wife, and that allowing the Claimant to buy the Property with her 1/3 share and keeping the house in the family “would help to heal if not alleviate all the past hurt he had suffered”. It does not matter exactly what words were used. What is important is the sentiment expressed, which explains why the Defendant was making a gift of her interest in the estate to her nephew.

The Defendant’s husband of many years died on 26 May 2022. This led to a falling out between the Defendant and Mr Maghoo, as Mr Maghoo sent a text to the Defendant which she found to be cold and disappointing. In cross-examination, the Defendant acknowledged that this was not a fair reaction on her part. Mr Maghoo was consequently not involved in any discussions relating to the Property from about March 2022 until the breakdown in the parties’ relations in November 2022.

The Claimant’s case is that he first decided that he might be in a position to purchase the Property using (i) the Defendant’s share of the estate, as transferred to the Claimant under the Deed and (ii) mortgage finance obtained by the Claimant in or about June/July 2022. This is broadly consistent with the known facts, although it may have been somewhat earlier. The Claimant’s evidence is that when he suggested this to the Defendant she was enthusiastic.

Accordingly, on or about 12 July 2022, the Claimant and the Defendant met a solicitor, Costas Kroustis, of Nicholas & Co. By email dated 11 July 2022 Mr Kroustis asked to see a copy of the will and the Deed before the meeting. The Claimant’s evidence is that, at the meeting, Mr Kroustis asked to see the Deed. Mr Kroustis pointed out that it was not signed by the Defendant. According to the Claimant, the Defendant offered to sign it in Mr Kroustis’ office, but Mr Kroustis said it would need to be witnessed. The Defendant denies this happened. Again, however, I prefer the Claimant’s evidence on this point. It appears to be common ground that Mr Kroustis said that, provided the Claimant paid full market value, it was legally possible for the Defendant as executor to sell the Property to him.

While this was going on, the Defendant was also looking at buying a property in London. This is inconsistent with her case that the whole point of the Deed was to enable the Claimant to purchase the Property for the Defendant to live in for life. There was late disclosure of a memorandum of agreed sale, dated 30 August 2022, in relation to a property at Flat 47, Meriden Court, Chelsea. The memorandum has a box in it, labelled “Buyer’s Intention”, which states “We understand the buyer is purchasing the property either to live or as a buy to let”. In cross-examination, the Defendant says that the proposed purchase was to be an investment. However, a property purchase may be both an investment, as well as providing a place for the Defendant to live in during her visits to London. The sale was in the end not completed.

In August 2022, the Defendant made a will in the Claimant’s favour, leaving all her estate to him solely. This is an indication of the affection which the Defendant felt towards the Claimant at the time. She gave him a copy of her will.

On 23 August 2022, the Defendant texted the Claimant to say that “… looks like probate will be granted shortly which means we should be moving soon on sale of Dancer Rd to you.” Thereafter the Claimant took several steps in connection with the potential purchase of the Property, as follows:

By letter dated 5 September 2022, Jasmine Fischer, one of the beneficiaries under the will and the Defendant’s niece, wrote to the Defendant. In that letter, Ms Fischer voiced her suspicions about the involvement of “other family members” in works at the Property, pushed for a quick sale on the open market and threatened to apply for the removal of the Claimant as executrix. The timing of that letter is significant. It helps explain the Defendant’s concern, expressed in her email dated 23 September 2022, about the name of the Claimant’s company. The concern about the name of the Claimant’s company was obviously prompted by Ms Fischer’s letter.

On 24 September 2022 the grant of probate was made.

On 25 September 2022, the Defendant emailed the Claimant, writing that

“… as regards the name of the company no need for you to change the corporate name. As for releasing the Deed of Variation, I must wait until I have (i) a grant of probate and (ii) confirmation of a sale going through before I release this document to any third party. There are legal reasons for this and this is not negotiable.”

On 29 September 2022, the Defendant emailed the Claimant with the grant of probate, writing simply “Here it is!”.

On 10 October 2022, the Defendant sent the Claimant an email with the subject line “Executed Deed of Variation”. The attachments to the email are the Deed, now signed by the Defendant, and the Will. The Claimant’s case is that this amounted to delivery of the Deed.

In October 2022, the Claimant experienced serious health problems. He suffered a transient ischaemic attack, or “mini-stroke”, on 11 October 2022. In the aftermath, he was fatigued and had high blood pressure. He initially stayed in bed and gave his phone to his wife, who communicated with the Defendant in the interim.

At the start of November 2022, the Defendant was in London. It is common ground that the Claimant, now somewhat recovered, and the Defendant met in London at a restaurant, probably on 3 November 2022. The Claimant’s position is that he handed to the Defendant the architect’s proposed plans for the Property. The plans show four self-contained units consisting of (i) a basement flat (ii) two flats on the third and fourth floor and (iii) the ground and first floor of the building. There is a factual dispute as to whether the Defendant looked at the plans at the meeting on the restaurant – the Claimant says that she did, the Defendant denies this. It is unlikely that the Defendant did not even glance at the plans at the time. However I do not need to make a final decision on this point.

There was another meeting between the Claimant and the Defendant, probably on 5 November 2022. The parties appear to agree that this was a tense meeting. The Defendant was unhappy about the Claimant’s proposed plans for the Property; however, she said in cross-examination that “she was still happy for him to buy it”. That is a significant concession on her part. By this stage, the Defendant had seen the proposed changes to the Property which the Claimant explained were necessary to update the Property and make it possible to rent out the basement, and two top floors. On the Claimant’s case, without the income from renting out these floors, he would be unable to service the mortgage payments. However, the Defendant was not saying at this stage that the proposed changes to the configuration of the Property were a reason to rescind or revoke the Deed. In her email of 22 November 2022, the Defendant says that these changes to the configuration of the Property were the reason for her revoking the Deed, and demonstrated that the Claimant had been lying to her. However, this seems an afterthought, an example of the Defendant casting round for a reason to revoke the Deed.

On 6 November 2022, the Defendant texted the Claimant, writing:

“… you are absolutely right of course, stress is not worth your health. Dancer Road is causing you stress and this will continue so YOU alone have to decide, if this entire project is worth while. The stress is just beginning for you, even assuming all goes well, the economy is at its worse (sic), what happens if you do not find tenants to repay your mortgage on Dancer Rd, what then, more stress. You are alone in this project without partners to rely on or help you. This is a lot for one person and your health is still on the mend. …”

On 7 November 2022, the Defendant texted Mrs Canarapen to say that the Claimant was not answering her WhatsApps. Mrs Canarapen replied that the Claimant was unwell and his blood pressure was high.

On 8 November 2022, the Defendant returned to France. There followed further texts from the Defendant, where she made the point that the Claimant had “let [her] down on [the Property]” but that the Claimant should let her know whether he wished to buy or not the Property.

On 16 November 2022, the Defendant wrote to the Claimant stating that she would need to see ASAP a written confirmation from the Claimant’s solicitor or broker that his mortgage application for £1.8 million had been in principle approved. The Claimant responded by email, with a mortgage certificate for £1,350,000 from “Simply Specialist Lending Ltd” attached.

On 17 November 2022, the Defendant wrote to the Claimant as follows:

“You will need to have your financing in place ready to match offers we will have on the table. I would rather for you to buy the house with my share on a buy to let ‘house’ and rent it afterwards as a single family home (without any major structural changes), so as to retain all the energy and memories so important to both of us (rather than turn this into an awful shaky business project). If it means less financing availability for you then you should rethink the project …”

On 19 November 2022, the Defendant texted the Claimant, complaining that he had let her down on too many matters, on the Property, Eguillon (her property in France) and “…. on the postage of [her] PC lead”.

On 22 November 2022, the Claimant emailed the Defendant to say “… that is all fine. I can keep it as a house and two separate flats upstairs and basement without any structural changes and it will make the renovation a lot more simple and less costly …”.

Later that same day, on 22 November 2022, the Defendant purported to revoke the Deed on the grounds of the Claimant’s alleged fraudulent misrepresentation, but instead offering him an interest free loan of 1/3 of the purchase price. After complaining about the Claimant’s application for planning permission, the incorporation of the company “using our family name without authority”, and the work which the Claimant had done on the Property, the email reads:

“… As you recall, I offered to transfer my share of the inheritance to you, based on your representations made to me that you wanted to keep the house as a legacy, you would not make any structural changes to the house, in order to quote you ‘to keep the smell and to feel the presence of mamie always in Dancer Rd.’ All that seems to have evaporated. I am very, very disappointed Michel in you. Were you lying to me all this time, including about caring for me, for mamie, for Dancer Rd? You have annihilated me and I cannot believe all this is happening to me. Therefore this is what I have decided:

1.

To revoke, terminate the Deed of Variation with effect immediately, based on your fraudulent misrepresentations

2.

If you still want to buy the house however, and you have the means to pay 2/3 upfront, and you can prove it to me, I will loan you, interest free, the deposit of 1/3 of the purchase price, subject to execution of mutually acceptable documentation between us. …”

By this email the Defendant was accusing the Claimant of fraud while at the same offering to send him nearly £500,000. The email also does not refer to the Defendant’s intention to live in the Property for life. It is difficult to read this revocation email as anything other than an attempt to justify her setting aside the Deed. In any event, nowhere in her pleaded case does the Defendant attempt to set out any case based on fraudulent misrepresentation.

Mrs Canarapen then sent a text, on 25 November 2022, saying that there is now such bad feelings that the Claimant would no longer be going ahead with the purchase of the Property. However, the text ends by asking whether the Defendant would still be honouring the Deed. That language is consistent with the Claimant’s case that the validity of the Deed, and the issue of whether the Claimant would be purchasing the Property, were factually separate issues.

The Property has now been sold for £1,765,000. One third of the net proceeds of sale are held, to await the outcome of these proceedings.