Jean-Michel Canarapen v Marie Ginette Gauchenot

MASTER PESTER: Introduction

1. By these proceedings the Claimant seeks a declaration that a Deed of Variation, dated 10 October 2022 (“the Deed”), is binding on the Defendant. The Claimant and the Defendant are parties to the Deed. The effect of the Deed, if valid and binding, is to transfer the Defendant’s 1/3 interest in the estate of Brigitte Genevieve Maghoo (hereafter, “the Deceased”) to the Claimant. The principal asset in the estate was the Deceased’s property at 33 Dancer Road, Fulham, London SW6 (“the Property”). The Property has been sold for £1,765,000.

2. The Defendant defends these proceedings on the basis that the Deed was never delivered and is not valid and binding. In the alternative, on the footing that the Deed was delivered, she counterclaims for an order setting aside the Deed for mistake.

3. On the last day of the three-day trial, the Defendant applied to amend her Defence. She now wishes to argue in the further alternative that if the Deed was delivered, it was subject to two conditions, one of which was not fulfilled. Whether I should permit this late amendment is one of the issues which I must determine in this judgment, having considered the parties’ cases in outline, the evidence given at trial and the factual background. The parties’ positions in outline

4. The Claimant submits that this is a simple case. The Defendant made a gift which she now regrets. She executed the Deed and provided a copy to the Claimant without any indication that it was not intended to take immediate effect. She knew at the time that it would be provided to third parties (at the very least, to the Claimant’s mortgage broker and/or lender) on the basis that it was a final binding document. The context in which the Deed was executed was that the Claimant was hoping to buy the Property from the estate and the Defendant wished to facilitate the Claimant’s efforts to progress that proposal by helping him prove that he had the necessary deposit. However, that context does not give the Defendant the right to set aside or deny the gift she made. Whilst it is right that the Claimant required the gift contained in the Deed in order to make the purchase, it does not follow, either as a matter of fact or law, that the Deed’s validity was conditional on a purchase of the Property by the Claimant.

5. The Defendant took three points in her Defence: (1) The Defendant did not deliver the Deed to the Claimant at any time. She told the Claimant in an email dated 25 September 2022 that she would not release the Deed until (a) probate had been granted and (b) confirmation of a sale of the Property. When the Deed was provided to the Claimant by email dated 10 October 2022, this was in order to assist him in obtaining finance to purchase the Property, and not by way of delivery. (2) In any event, the Defendant could revoke the Deed, given that the Claimant told the Defendant in an email dated 24 September 2022 that she could “keep the variation”. This was said to indicate that the Claimant “gave his consent to its revocation”. (3) In the alternative to the Defendant’s case that the Deed was not delivered, the Deed was made by the Defendant under a mistaken belief that the Claimant “intended to acquire the Property from the Deceased’s estate and preserve it as a family home by settling it on trust”. This was a mistake, in that the Claimant either did not intend to preserve the Property as a family home or was not in fact in a position to do so, because the Claimant intended to subdivide the Property into flats, which would be rented out.

6. The contention that the Defendant was entitled to revoke the Deed, because of the email dated 24 September 2022, was abandoned at trial. This point was rightly abandoned. The words used in that email, and the context in which the email were sent, do not make an otherwise binding gift by deed revocable.

7. I should add that I heard an application for summary judgment by the Claimant on 27 June 2024. I dismissed the application. It was not possible to find that the Defendant had no real prospect of defending the claim, certainly at least on the first and third grounds set out above, although I did indicate that I was more dubious about the second ground. The circumstances in which the Defendant sent the Deed to the Claimant required further scrutiny at trial. The evidence

8. This is a case where the warning about the unreliability of human memory given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) , at [22], is particularly apposite. Walker J explained that the best approach for a judge to adopt was to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. The value of cross-examination lay largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations or events. The point is not simply that human memories are fallible but that considerable interference with memory is introduced in civil litigation by the very process of preparing for trial, and that a judge should avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provided any reliable guide to the truth.

9. This is a dispute between family members. The Claimant is the Defendant’s nephew. After a period of estrangement, the Claimant and the Defendant reconnected following the funeral of the Deceased. There then developed a considerable degree of love and affection between them. By way of illustration, the Defendant wrote to the Claimant by text on 12 November 2021, saying “Know too that you can always, always count on me, because you are my family. Thank you for being so close …” This closeness was then replaced by a bitter falling out, with the Defendant, among other things, accusing the Claimant of having lied to her. There is now a high degree of hostility and anger between the parties which colours their recollection of past events.

10. The Claimant and the Defendant both gave evidence at trial and were cross-examined. There was in evidence a large amount of communications between the parties, in the form of emails, texts and WhatsApp messages. It is these written communications which set the context for the parties’ dealings. Both parties also accept that there were many telephone conversations between them.

11. Turning to my impression of the witnesses, the Claimant was an honest witness who, despite his current animus towards the Defendant, basically tried to answer the questions put to him in cross-examination. He sometimes got the dates of various events wrong. On at least two occasions, he was on the point of making inflammatory and irrelevant allegations about the Defendant’s character, which I stopped him doing. Subject to those caveats, I broadly accept his evidence.

12. I found the Defendant to be a less reliable witness. Whilst I do not believe that she was giving dishonest evidence, she gave speeches from the witness box, rather than answering the question. She also, on at least two occasions, gave an answer which she then realised was not helpful and then sought to retract or qualify it. She denied that she was “fickle” (a word she also used in one of her text messages which was in evidence). However, as I explain in greater detail in this judgment, it seems plain that during the period under examination she was considering various options at different times, and did change her mind as to how she wanted to proceed.

13. I also heard from both the Claimant’s wife, Tsena Canarapen, on behalf of the Claimant, and from the Defendant’s brother, Gerard Maghoo, on behalf of the Defendant. Both witnesses gave their evidence straightforwardly. Neither Mrs Canarapen nor Mr Maghoo can be called independent witnesses. Mrs Canarapen can be expected to support her husband’s claim. Mr Maghoo candidly accepted that recently he had been given money by the Defendant. In the end, I derive only limited assistance from either, because the key discussions were held between the Claimant and the Defendant.

14. A witness statement was also filed on behalf of the Claimant, from his accountant, Ravinder Gill. The Defendant chose not to cross-examine Mr Gill. His evidence is therefore unchallenged. The facts

15. 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.

16. 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.

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

18. 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.

19. The Will makes the following testamentary dispositions: (1) It appoints the Defendant as its sole executor and trustee. (2) It makes a specific gift of £4,000 to the Brompton Oratory. (3) It divides the residuary estate into three equal shares and divides them as follows: (i.) One share to the Defendant absolutely; (ii.) One such share to the Deceased’s daughter Maria (the Claimant’s mother) and two of her five children (Desiree and Damian) in equal shares; (iii.) The other such share to the Deceased’s daughter Catherine and her children (Natasha and Jasmine) equally. Catherine pre-deceased the Deceased, so Natasha and Jasmine take Catherine’s share.

20. 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.

21. 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”.

22. 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.

23. 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.

24. 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: (1) The idea that the Claimant would have agreed then and there to purchase the Property, for the Defendant to live there for life, without modernising or making structural changes is indeed, in the words of the Claimant’s counsel, “utterly fanciful”. The Property was in poor condition. The Defendant has disputed this. However, there is a report dated 9 January 2022 from Valuation Office Agency which states that “The property was in poor condition and would benefit from works of modernisation and improvement”. (2) The Defendant’s own evidence is that she went to the meeting at the Property on 4 October 2021 not trusting the Claimant. I accept that that may have been an overstatement, reflecting the Defendant’s present feelings about the Claimant, but nevertheless it is true that the Defendant hardly knew the Claimant at that stage. She could have had no real understanding of the Claimant’s financial circumstances and ability to purchase the Property. (3) I do not believe that the Claimant would have agreed then and there to buy the Property to allow the Defendant to live there, without discussing the matter with his wife, or indeed his accountant. Mrs Canarapen’s evidence is that the Claimant first talked to her about the possibility of his trying to buy out the other beneficiaries and acquiring the Property “in the summer of 2022”. It might be said that Mrs Canarapen said this to support her husband’s case. However, the evidence of the Claimant’s accountant, Mr Gill (which was not challenged) is that the Claimant first approached Mr Gill to explain that he was thinking of buying the Property “in August 2022”. Mr Gill was the Claimant’s accountant for over 20 years. If the Claimant and the Defendant had really reached the agreement which the Defendant now maintains that they did in early October 2021, one would have expected him to raise the matter with his accountant in late autumn of 2021, rather than late summer of 2022. (4) The evidence of Mr Maghoo also tends to support this conclusion that there was no agreement in autumn 2021 that the Claimant would purchase the Property. He says only that the Claimant told him that he (that is, the Claimant) was going to “… buy it because [the Defendant] wanted to keep it in the family as the family home”. In cross-examination, Mr Maghoo appeared to accept this was a one-off passing remark, and was delivered in a jokey way, followed up by a remark that Mr Maghoo could “live in the basement” (something which Mr Maghoo was not interested in; he had his own flat). I do not consider that this passing remark does reflect any fixed agreement between the Claimant and the Defendant that the Claimant was to purchase the Property for the Defendant to live there “for life”. (5) Finally, if there had been any such agreement as alleged by the Claimant in October 2021, one would expect to see it reflected at least in some form in the extensive correspondence passing between the two. However, there is really no documentary evidence to support this. Such evidence as there is supports the view that there was no agreement in October 2021 that the Claimant was to purchase the Property. By way of example, the Defendant texted the Claimant and referred to the work done by the Claimant and Mr Maghoo in cleaning and doing up the Property as “altruistic actions”. If the Claimant was intending to purchase the Property from October 2021, then such work would not have been described as “altruistic”.

25. 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.

26. 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.

27. 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.”

28. 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.

29. 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.”

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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: (1) On 30 August 2022, he incorporated a company, Maghoo Legacy Holdings Limited (“MLH”) . He sent details of the incorporation to the Defendant, who responded, by email dated 31 August 2022, “Thanks Michel and congratulations!” By the same email, she asked whether he had the memorandum and articles. (2) He commissioned an architect to prepare designs and to apply for planning permission in September. By email dated 11 September 2022, he sent the Defendant the architect’s proposal for “EA Fee Proposal flat conversion” (EA being the name of the architects, or “Extension Architecture”). (3) He applied for a mortgage. On 16 September 2022, he received a Decision in Principle (DIP) from the Mortgage Lender, who wrote “We are pleased to confirm that based on the information provided to date, we would in principle offer, a loan amount of £1,050,000.00.” By email dated 20 September 2022 the Claimant sent the Defendant four options for mortgages on the Property and the mortgagee’s “decision in principle”. (4) On 23 September 2022, the Claimant sent to the Defendant the information requested by his broker. In particular, the broker asked for “proof of deposit (Copy of the will and deed of variation).” (5) By email also dated 23 September 2022, the Defendant responded, writing that the Defendant should change the name of the company “for now to e.g. DCR Holdings Ltd (i.e DCR standing for Dancer road) or (GBM or EWM Holdings …) and once all the transfer of title can go ahead change the corporate name back to Maghoo Holdings … to avoid … counterattack by the other beneficiaries of scheming on our part.” The email continues “As for proof of deposit and deed of variation, please tell them we need to wait for probate to be granted and agree with them for now that any offer ‘will be subject to satisfactory evidence of deposit and receipt of a copy of Deed of variation, acceptable to the Mortgagee.’” (6) On 23 September 2022 the Defendant texted the Claimant, offering to speak to his accountant and proposing “… alternatively just keep the name of the company Maghoo but please negotiate to provide the will and the Deed of variation post Grant of probate.” (7) On 24 September 2022, the Claimant replied, relaying the advice from his accountant and mortgage broker, which was against the changing the name of the company, and that progress on the mortgage could not be made without a “complete pack” of outstanding matters. The Claimant stated that there was nothing to which the beneficiaries could object since the Property would be marketed and sold to whomever was willing and able to pay the best price. (8) That email also continued: “I have a feeling inside that doesn’t sit quite right. You gave me this passion for [the Property] and the opportunity to make it work. I have been fighting all corners to make this work. I can’t fight you as well. If you can’t trust me to do the right thing then I suggest we call it a day for Dancer Road and you can keep the variation as the money doesn’t do anything for me.”

39. 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.

40. On 24 September 2022 the grant of probate was made.

41. 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.”

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

43. 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.

44. 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.

45. 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.

46. 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.

47. 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. …”

48. 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.

49. 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.

50. 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.

51. 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 …”

52. 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”.

53. 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 …”.

54. 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. …”

55. 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.

56. 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.

57. 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. Legal principles Requirements for valid deed

58. There was no dispute as to the requirements for the valid execution of a deed by an individual. The deed is valid if, and only if (a) it is signed (b) in the presence of a witness who attests the signor’s signature, or at his direction and in his presence and the presence of two witnesses who each attest his signature and (c) it is delivered as a deed. See section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 .

59. The Law of Property Act does not define what is meant by delivery. In Vincent v Premo [1969] 2 QB 609 , at 619D, Lord Denning MR said this: “The law as to ‘delivery’ of a deed is of ancient date. But it is reasonably clear. A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties until they have exchanged their parts. But with a deed it is different. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered. ‘Delivery’ in this connection does not mean ‘handed over’ to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker or of his solicitor he is bound by it if he has done something evincing an intention to be bound as by saying: ‘I deliver this my act and deed’. He may however make the ‘delivery’ conditional: in which case the deed is called an ‘escrow’ which becomes binding when the condition is fulfilled.”

60. As explained by Lord Denning MR, delivery may be either unconditional or conditional (sometimes described as being “in escrow”). Where the delivery is conditional, it will be delivered upon the fulfilment of the condition: see Silver Queen Maritime Ltd v Persia Petroleum Services Ltd [2010] EWHC 2867 (QB) , at [108] and following.

61. What matters is not the subjective intention of either party, but the objective assessment of what the party who executed the document did and whether a reasonable recipient would have understood the deed to have been delivered unconditionally: Umrish v Gill [2020] EWHC 1513 (Ch) , at [84]. Setting aside a gift for mistake

62. As to the principles for setting a gift on the grounds of mistake, there was again no real dispute as to the applicable principles. There must be (a) a causative mistake (b) which is of sufficient gravity and (c) it would be unconscionable for the recipient to retain the benefit of the gift: Pitt v Holt [2013] UKSC 26 , at [38].

63. In deciding whether to set aside a gift for mistake, the court is inevitably engaged in an evaluative process. See the analysis of Lord Walker, in Pitt v Holt at [128]: “… the court cannot decide the issue of what is unconscionable by an elaborate set of rules. It must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected. The court may and must form a judgment about the justice of the case.” Discussion and analysis Issue 1: Was the Deed delivered by the Defendant?

64. In my judgment, it was. My reasons for so holding can be stated shortly: (1) The Deed is in standard form. There is nothing in the wording of the Deed to suggest that it does not take effect immediately upon signature or that it was not immediately binding. (2) There is nothing in the covering email from the Defendant to the Claimant which gives any indication that the Deed was not intended to take immediate effect. The subject line of the email states simply “Executed Deed of Variation”. The text in the body of the email, while brief (“Here are the two documents to hand, finally” – the other document being the Will) likewise does not suggest any conditionality on the delivery of the Deed. (3) Looked at objectively, and from the standpoint of the reasonable recipient, the Deed was intended to take effect immediately. (4) At the time when the Deed was delivered, the Defendant was aware that the Claimant intended to use the Deed for obtaining mortgage finance. The Defendant’s own pleaded case is that she provided a copy of the Deed to the Claimant “… not by way of delivery, but to assist him in obtaining finance to purchase the Property.” The Defendant clearly was aware that the Claimant intended to provide the Deed to third parties. In particular, she knew that it would be presented to the prospective lender who would be advancing monies on the faith that the Claimant had an interest in the Property. Although she was reluctant in cross-examination to accept this, any mortgage broker or lender when presented with the Deed would see it as unconditional. The Defendant explained that she assumed that any third party would need various other documents, such as sight of the original, a legal opinion on its validity, and other certified documents, before agreeing to lend in reliance on the Deed. I found this attempted justification unconvincing. The Defendant accepted in cross-examination that once the mortgage lender received a copy of the Deed, it would begin working on the basis that the Deed could be relied upon. The Defendant must have understood that the Claimant needed to be in a position to prove that he had the deposit. (5) In any event, even if the Defendant considered that any lender would want to see further documents, her subjective view about the enforceability of the Deed is not determinative. (6) The Defendant is a solicitor. If she had truly intended at the time to impose conditions on her gift to the Claimant, she could easily have done so. The language used in her email of 22 November 2022, where she declares that she has decided “… to revoke, terminate the Deed of Variation with effect immediately, based on your fraudulent misrepresentations” is consistent with a recognition on her part that she was then seeking to set aside an otherwise valid and effective legal document. It is noticeable again however that no case for fraudulent misrepresentation was in fact advanced in these proceedings.

65. In so far as the Defendant still relies on the wording in her email dated 25 September 2022, which is that she would only release the Deed “to any third party” upon the grant of probate, and confirmation of the sale going through, the Claimant is correct to say that this must be seen in context. By the email on 10 October 2022, the Claimant implicitly agreed for it to be released to third parties, including the Claimant’s proposed lender and his mortgage broker. Matters had moved on. The Defendant did not stipulate, as she could have done, that while the Deed was being provided to the Claimant, it was for information purposes only or could not be released until there was confirmation of a sale going through, or even that it was subject to delivery or subject to contract.

66. In her written closing, the Defendant submitted that there were “two great mysteries” at the heart of the Claimant’s case, the first being what happened between 4 October 2021, when the parties met at the Property, and 18 November 2021, when the Defendant came to her solicitor about drafting the Deed, and the second concerning what happened between 2 (or 3) November 2022 and 5 November 2022, when it is common ground that the Defendant was very unhappy about the proposed conversion of the Property.

67. It does not seem to me that there is a great mystery about either. With regard to the first, the Defendant had been told by a distant relation that she could vary the distribution under the Will, and pass her share onto another person. The Defendant was interested in advice regarding the making of such a gift to the Claimant (or the Claimant together with Mr Maghoo). In relation to the second, the Defendant had second thoughts. There were in all likelihood a number of reasons for this, her realisation of just how extensive the conversion at the Property would be, coupled with concerns that any proposed sale to the Claimant would inevitably lead to, at the very least, complaints and possibly legal challenges from the other beneficiaries. The Claimant’s case is that the Defendant changed her mind because, following the Claimant’s stroke, the Defendant realised that the Claimant was less able to carry out chores for her. This may well have been a further contributing factor. In any event, the Defendant unequivocally and without conditions delivered the Deed. Issue 2: Is the Defendant entitled to set aside the Deed on ground of mistake?

68. In assessing a claim to rescind a gift for mistake, analysing the nature of the mistake is the critical first step. The Defendant’s case as to how she was mistaken has, unquestionably, shifted. In her Defence and Counterclaim, the Defendant says that she was mistaken in believing that (a) the Claimant intended to “preserve the Property as a family home (b) the Claimant intended to do so by settling it on trust and (c) the Claimant would do so”. This formulation was abandoned during the course of the trial. The Defendant accepted in cross-examination that she did not believe that the Property was going to be put in trust, and that the reference to a trust in her Defence and Counterclaim was “a mistake on my part”. She also indicated that she believed that she had corrected the mistake. However, at least until the last day of trial, no amended Defence and Counterclaim was put forward.

69. Her witness statement for trial adopts another formulation, referring to her agreement with the Claimant “… paramount of which that I would live in the house for my entire life, such that it would be only after my death that he would receive the third share without conditions.” In closing, the mistaken belief is said to be that the Claimant would buy the Property from the estate “in part to provide [the Defendant] with a place to live for the rest of her life”.

70. In Pitt v Holt , Lord Walker warned that one of the difficulties with the law on mistake is that “… the court may have to make findings as to the state of mind, at some time in the past, of a claimant with a lively personal interest in establishing that there was serious causative mistake”. In this case, I do not consider that the Defendant believed at the time that she would have the right to live in the Property for the rest of her life. This is an after the fact rationalisation. The supposed mistake is not reflected in the documents. Her claim to rescind the Deed fails on that straightforward basis alone.

71. I note the following: (1) The shifting nature of what she says was the nature of the mistake, from preserving it as a “family home”, to a different formulation that the Claimant was to purchase it “in part” to provide a place for her to live in for the rest of her life, undermines the contention that the Defendant’s “mistake” was of a sufficient seriousness to warrant the rescission of the Deed. (2) In her email of 22 November 2022, the Defendant says nothing about her belief that the Claimant intended to purchase the Property to provide the Defendant with a home for life. If the position were truly as she now asserts it to be, this is a very surprising omission. She makes a number of complaints in that email, but nowhere does she refer to her right to reside at the Property “for life”. (3) The suggestion that the Defendant would have a home at the Property “for life” is not reflected in the documents. I remind myself that the parties were family members, and a degree of informality in their dealings and in the way they expressed themselves is to be expected. Nevertheless, one would expect there to be some contemporaneous indication that this was the Defendant’s intention. (4) In cross-examination, the Defendant said that it was the conversion of the Property which was objectionable. That is different from suggesting that the fundamental mistake was that the Defendant would have a home at the Property for life. (5) There is also the matter of the Chelsea property. In the summer of 2022, the Defendant was clearly investigating the possibility of buying a one-bed flat in Chelsea. This is inconsistent with a fundamental mistake that the purchase of the Property was to provide her with a home “for life”. The Defendant explained in cross-examination that the Chelsea property was a potential investment. However, the likely position is that the Defendant intended the Chelsea property as both a pied-à-terre for her in London, as well as being an investment which could be sold in the future. The two options are not mutually exclusive. (6) The bargain between the two parties, as now alleged by the Defendant, is fundamentally unattractive from the Claimant’s point of view. He was undertaking a long term commitment by way of entering into a mortgage. The Defendant would have the right to live in the Property for life. The Defendant says that the Claimant would inherit from her, but any will which the Defendant made could be torn up at any time before her death. The Defendant was, on her case, providing him with a deposit, but she indicated in cross-examination that she would also be taking a charge over this as security. I do not believe that the Claimant would ever have been willing to enter such a lopsided deal.

72. I therefore reject the Defendant’s contention that she believed that she would have any right to stay at the Property for life. On that basis, the Defendant’s case to rescind the Deed for mistake fails.

73. Quite apart from the factual problems with the Defendant’s case on mistake, I accept the Claimant’s submissions that in any event the nature of the “mistake” as now formulated on behalf of the Defendant is really about something to happen in the future. It is not a traditional mistake, but more akin to a misprediction: see Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 , at [29]. A misprediction does not provide the basis for a claim to set aside the Deed, which is otherwise unchallengeable. This is another reason for refusing to set aside the Deed on the grounds of any “mistake”. The Defendant has not attempted to advance any case for misrepresentation.

74. The parties also made legal submissions concerning whether, assuming the Defendant had been acting under an operative and legally relevant mistake, it would be unconscionable to allow the Claimant to retain the benefit of the Deed. Given my earlier findings on the claim for mistake I do not consider that I need to address these points.

75. There were also submissions made concerning whether the Defendant would be estopped from denying the validity and effect of the Deed. There is a considerable overlap between the arguments on estoppel and on unconscionability. Again, I do not need to say anything further on estoppel, given my finding that the Defendant was not operating under a relevant, operative mistake. Issue 3: Should the Defendant be given permission to amend her claim to allege that the delivery of the Deed was subject to conditions?

76. On the last day of trial, the Defendant applied for permission to amend. The key proposed amendment is to plead that, in the alternative to the defence that the Deed was never delivered, the Deed was only delivered subject to the conditions that (1) probate would be granted and (2) a sale of the Property to the Defendant was confirmed (new paragraph 11A). The reference to “the Defendant” should presumably read to “the Claimant”. As only one of the two conditions was fulfilled, it is said that the Defendant was released from her obligations under the Deed.

77. The Claimant opposed this application to amend. The Claimant’s Counsel says that the Deed was not conditionally delivered, but in any event, delivery in escrow does not allow the maker of the deed to revoke it at will. Instead, the maker is bound to “wait and see” if the condition is satisfied, and cannot take steps to frustrate its fulfilment. The Claimant says that the Defendant did not do that, because the Claimant remained willing to buy the Property, and could have bought it for its eventual sale price of £1.75 million or so. The only reason why he did not was the Defendant’s purported revocation of the Deed and her refusal to acknowledge that she was bound by it.

78. The relevant considerations are as follows: (1) In chronological terms, this is an extremely late amendment (there is authority that suggests that the concept of a “very late” amendment is one where allowing the amendment would cause the trial to be adjourned – see Rolls-Royce Holdings PLC v Goodrich Corporation [2023] EWHC 1637 (Comm) , at [223], cited in the Public Institution for Social Security v Al-Wazzan [2025] EWHC 1357 (Comm) , at [31]). On the first day of trial, the Claimant made it plain that any argument based on the Deed being delivered subject to conditions would be resisted, on the ground that the same had not been pleaded. It would have been much better had the Defendant produced a draft amended Defence immediately, certainly at least before the Defendant went into the witness box. There was no reason this could not have been done, as a matter of the trial timetable. (2) The Defendant accepts that the application to amend gives rise to different legal issues, but says that it arises out of the same facts as have already been pleaded. The amendment does not give rise to any new issues for disclosure, nor it is said would the witness statements need to be changed. The Court has before it all the material that it needs to decide the point. The Defendant submits that there is no real prejudice in allowing the amendment. (3) The Claimant takes issue with the submission that there is no prejudice in allowing the amendment. The Claimant’s Counsel submitted that, had the amendment been in play at the start of the trial, she might well have put different, additional questions in cross-examination to the Defendant. As a matter of law, where a Deed is delivered subject to conditions, the maker of the Deed is under an obligation not to prevent the fulfilment of the conditions. In this case, the Claimant says that it is at the very least arguable that it was the Defendant who prevented the Claimant from purchasing the Property. It was her unreasonable conduct and purported revocation of the Deed which led to the breakdown in relations between the parties, which led to the Claimant’s being unwilling to pursue the purchase. There is force in this point. (4) The Defendant relies on a letter, dated 28 November 2022, from the solicitors who originally acted for the Claimant. In that letter, there is reference to the Property increasing in value and the Claimant no longer being able to afford to purchase it. The Defendant’s Counsel therefore suggests that it is clear that the Claimant could not fulfil the condition, and there is nothing further on which the Defendant could have been cross-examined. I do not accept that this letter is a complete answer. In a text dated 15 November 2022, the Defendant had suggested to the Claimant that there were cash buyers (note the plural) bidding for the Property for £1.85million, which was more than the Claimant could afford. Whether this was actually true or not is unclear. The Property eventually sold for £1.765 million, which was a price which the Claimant could have afforded. It is also not entirely clear what is meant by “the sale of the Property to [the Claimant] was confirmed”. Does this mean the sale going through to completion? Or is it that the Claimant had obtained finance and was ready to proceed? This too could have been explored further in cross-examination. In the circumstances, I accept that the course of cross-examination might have been different, had the Defendant presented the proposed amended Defence at the beginning rather than the end of the trial. There were a number of points on conditionality that could have been put to the Defendant, and the Claimant may have wanted to put in further evidence on the point. There might also have been further disclosure, relating to the presence of other buyers. (5) The Claimant’s Counsel also submitted that further consideration would need to be given as to what is meant legally by preventing the fulfilment of a condition. She says that she has not come ready to argue the point, on which there may be further authority.

79. In the end, the Defendant must have known, if her case was really that the Deed was delivered subject to conditions, that this was a point that she could advance. In the circumstances, there is no good reason why the amendment is made so late. I reject the submission that there is no prejudice to the Claimant in allowing the point to be run. I therefore dismiss the application to amend.

80. There is another more straightforward point which also leads me to refuse the amendment. For an amendment to be allowed it must be at least reasonably arguable. I do not consider that the point is reasonably arguable. The Deed was not delivered subject to conditions. Conclusion

81. I therefore propose to allow the claim and grant the declarations sought by the Claimant. The Defendant’s counterclaim will be dismissed.