MARGARET GARBUTT v TIMOTHY ROBSON GARBUTT
[2023] EWHC 1053 (Ch)
Jenny Pierce & Anor v Paul Barton & Anor
29 November 2023
[2023] EWHC 3016 (Ch)
High Court
A will left a son a flat he already owned, but with a debt attached. The court decided the will meant to cancel the debt. Because too much time passed without anyone trying to collect the debt, the debt and the right to take the flat were lost.
Key Facts
- •Malcolm Barton's will contained a clause (clause 5a) gifting his son Paul Barton a flat, which Paul already owned, but with a charge securing a debt of £87,727.52.
- •The claimants, Malcolm's personal representatives, sought court directions on administering the estate, including whether to pursue the debt and/or whether clause 5a extinguished the charge.
- •The charge dated back to 17 November 2006, with no subsequent acknowledgment or demand for payment during Malcolm's lifetime.
- •The first demand for repayment was made in November 2019, over 13 years after the charge was created.
Legal Principles
Modern will construction follows the same principles as contract interpretation: identifying the parties' intention from the words used in their documentary, factual, and commercial context.
Marley v Rawlings [2015] AC 129; Administration of Justice Act 1982, s. 21
A devise of land passes whatever estate or interest the testator had, even if the testator mistakenly described the interest.
Woodhouse v Meredith (1816) 1 Mer 450; Re Lowman [1895] 2 Ch 348; Re Carter [1900] 1 Ch 801
Limitation Act 1980 governs time limits for actions on simple contract (6 years), recovering land (12 years), and recovering money secured by a charge (12 years).
Limitation Act 1980, ss. 5, 6, 15, 17, 20
A mortgagee's right to possession accrues upon creation of the mortgage, unless the mortgage conditions it upon the mortgagor's default.
Four Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch. 317; Ashe v National Westminster Bank [2007] 2 P & CR 27; [2008] 1 WLR 710
Limitation bars remedies, not necessarily rights. A statute-barred debt may still have legal effects, e.g., in bankruptcy.
Ashe v National Westminster Bank [2008] 1 WLR 710
Outcomes
Clause 5a of the will was construed as gifting the charge and debt to Paul, extinguishing the charge.
This interpretation aligns with the testator's intention to release the charge, as evidenced by solicitor's notes. A literal interpretation would be ineffective.
The claim for repayment of the purchase price is statute-barred under the Limitation Act 1980, s.20.
More than 12 years passed between the charge's creation and the demand for repayment.
The charge is extinguished under the Limitation Act 1980, s.17.
More than 12 years elapsed since the chargee's right to possession accrued, without action by the chargee or acknowledgment by Paul.