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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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What's it got? It's got the lot!
13 May 2021

Sometimes a case comes along that has so many issues for consideration you could almost be forgiven for not appreciating that when all said and done the underlying issues in the case are such that it amounts to a probate claim.  One such case is the recent case of Ugolor & Ors V Ugolor [2021].

The defendant, Glenroy Ugulor (“Glenroy”) made an application to the court seeking permission to allow him to re-mortgage a property known as 41 St Donatts Road, London (“Donatts”).  Glenroy claimed that the property formed part of his late mother’s estate and that he would inherit the bulk of it pursuant to the terms of her will dated 23 March 2008 (“the 2008 will”).  Glenroy’s two sisters and his brother (“the siblings”) disputed the validity of the 2008 will and asserted that their mother had died intestate.

Donatts

The children’ mother, Pamela Festous (“Pamela”) had lived at Donatts for many years.  In 1980 she divorced her husband but continued to live with the children at Donatts.  Donatts had originally been owned by the local authority but in 2004 Pamela had acquired its freehold for £192,000.00.  Glenroy asserted that she did so with his assistance and under the right to buy scheme.

Some years later Glenroy got into financial difficulty and was made bankrupt on 17 May 2016.  Whilst he was still bankrupt, Pamela granted a charge over Donatts for about £350,000.00 and gave the proceeds to Glenroy.  By this time, Glenroy had moved his mother out of the Donatts’ property and into another property in Catford owned by him.  The charge taken out on Donatts was characterised as a “business loan”.  Glenroy asserted that this was because the property was let out to tenants.  Glenroy retained the entirety of the rental income from Donatts.

Glenroy admitted that his mother had taken out this loan for his benefit and to assist him in paying off his debts.  However, he stated that she did this willingly and lovingly and that there was nothing surprising or sinister about this given that he alone looked after his mother in later years.

In 2017 Glenroy moved his mother to another property owned by him but a year later she then had to be taken into specialist residential care following a stroke and after she had been diagnosed with dementia.
Following her death, Donatts fell into her estate.  By this time, Donatts was worth somewhere in the region of £780,000.00 to £1m.

The claim

Proceedings were issued on by the siblings on 4 May 2020.  On commencement, they sought a declaration that three properties Glenroy owned, and which they asserted had been purchased from funds improperly obtained by him from Pamela, were held by him on constructive trust for Pamela’s estate and therefore, there being no will, they were entitled to a quarter share together with a quarter share in Donatts.  They also sought Glenroy’s removal as executor of their late mother’s estate and sought the appointment of an independent solicitor as administrator pending the conclusion of the claim regarding the validity of the 2008 will.

Subsequently, permission was granted to the siblings to amend their claim to include an order pronouncing against the validity of the will alleging, in particular, that Pamela did not know or approve of the contents of the 2008 will relying on her alleged lack of testamentary capacity and her mental health.  They also pleaded undue influence.  Prior to the issue of proceedings, the siblings had also sought a freezing injunction against Glenroy in relation to the properties.

The freezing injunction

On 30 April 2020 the court duly granted a freeing injunction.  The order provided, in short, that Glenroy be restrained from dealing with any assets of his own save to the extent that their remaining value was over £1m.  The prohibition expressly covered all three properties that the siblings sought a declaration in relation to, any other property Glenroy owned, any money in his bank accounts and also Donatts.

Glenroy was also ordered to provide information about his assets, bank accounts (including bank statements) and “any copy of any will of the [deceased]” and to verify this information in affidavit format by 11 May 2020.  Glenroy failed to do so.  His time to do so was subsequently extended to 15 May 2020.  Once again, however, Glenroy failed to provide the information as ordered.

On 18 May 2020 Glenroy did then serve an unsigned witness statement which had attached to it a purported copy of the 2008 will but he still failed to provide any of the other information/documentation as ordered.

On 19 May 2020 the freezing order was discharged but upon Glenroy’s undertaking not “to attempt to or actually diminish the value” of the property (Donatts) by, amongst other things, “raising or attempting to raise money on it” (“the undertakings”).  He also undertook to place at rents collected from Donatts into a separate bank account and to apply the monies only for the purpose of making mortgage repayments or other expenditure on Donatts.  Yet a further extension of time was also granted to Glenroy to provide the remaining information/documentation as ordered previously.  However, once again he failed to produce the information/documentation, although he did send an email to one of his sisters, Itoweh, the first claimant in the proceedings on 9 June 2020 wherein he attached copies of Pamela’s bank statements together with other statements of an unidentified party for the period up to the end of 2017.

Glenroy also failed to file any defence to the proceedings but then towards the end of February 2021 issued his application seeking a variation of the undertakings and as regards permission to re-mortgage Donatts.
Glenroy’s application

The application was made on an urgent basis because the existing mortgagees had served notice of their intention to sell the property at auction.  Glenroy wished to avoid this as he believed the sale price obtained for the property would be significantly below market value.  The siblings also opposed this but for different grounds.  They contended that an independent administrator would be best placed to agree with the existing mortgagees that the property should not be sold at auction, particularly having regard to the fact that they alleged the existing mortgage had been obtained by undue influence exerted over their mother by Glenroy, of which the mortgagee had actual or constructive notice.

Glenroy’s application did not provide any details as regards the existing mortgage nor were any given for the proposed replacement mortgage.  All he said was that because of COVID-19 he had had difficulties in finding tenants and so arrears had accrued in respect of the mortgage to the tune of about £12,000.00, although he had now reduced these by about fifty percent.  

His application did reveal, however, that he had become his mother’s executor following her death on 21 March 2020 and had obtained a grant of probate dated 12 December 2020.  This was the first time he had revealed the existence of the grant of probate.  It came as a surprise to the siblings because in about March or April 2020 Itoweh had successfully applied to the probate registry for the lodgement of a caveat which had been renewed on 24 August 2020 and was thus still in existence when Glenroy obtained the grant in December 2020.   Despite this, Itoweh had not received any notice warning her of Glenroy’s application to remove her caveat.  The siblings asserted that this meant Glenroy must have misled the probate registry by an affidavit to believe that she had received such notice.

Using the grant that he had now obtained, Glenroy had also applied to the Land Registry to vest the freehold title of Donatts in his name pursuant to an alleged assent of the property by himself and to himself.

What then was the court to do?

Issues for consideration

The court had two main issues to consider:

  1. Should it allow Glenroy to attempt to re-mortgage Donatts or should it appoint an independent administrator pending suit and allow him to deal with the matter as he saw appropriate, including by threatening or bringing proceedings against the current mortgagees?
  2. What orders should it make in light of Glenroy’s admitted continued non-compliance with the freezing injunction orders, his failure to file a defence to the proceedings and his alleged wrongdoings leading up to the injunction order being made and to the grant of probate to him?

Court’s findings

The judge considered that it would be inappropriate to grant permission to Glenroy to re-mortgage Donatts.  On the evidence before him the judge considered it was clear that Glenroy was not an appropriate person to be administering Pamela’s estate pending resolution of the siblings’ claim and should therefore be replaced by an independent administrator.

The judge’s reasons were as follows:

  • In light of the freezing orders the court had already determined there were grounds for believing there was a real risk he would dissipate his or the estate’s assets.
  • There were reasonable grounds for believing that the properties he owned in his own name had been acquired using funds from Pamela because he had never put in a defence in answer to this allegation.
  • Despite the various extensions of time granted to him, he had provided only a fraction of the information/documentation he had been ordered to provide and had never provided an affidavit or explained why he had failed to do so.
  • There were reasonable grounds for believing that he had obtained the grant of probate by falsely telling the probate registry that he had served a warning off notice when in fact he had not done so.  He had then used the grant to vest Donatts in his sole name without any notification to the siblings.
  • The premise of his application was that he should be allowed to create a misleading public record at the Land Registry – i.e. that he was the sole proprietor of Donatts pursuant to a valid vesting assent.
  • The proposed new mortgagee’s offer was just an offer in principle and there was no evidence that if they knew the truth they would grant the mortgage.  Further, the offer was not particularly advantageous to the estate and there was no reason to assume that the same problems would not arise again in the future with Glenroy in control.
  • There were real grounds for believing that Glenroy had exerted undue influence over his mother as regards the creation of the existing mortgage, although whether the mortgagee was on notice was an open question.

Judgment

In all the circumstances, the judge dismissed Glenroy’s application and appointed an independent administrator in relation to Pamela’s estate pending final determination of the claim.  No order was made in relation to the grant of probate as the validity of the 2008 will was being challenged in any event.  He also made an order debarring Glenroy from defending the proceedings unless within 21 days he filed an acknowledgement of service, defence and counterclaim and provided the missing information/documentation verified by affidavit as he had already been ordered to do.

Conclusion

It will likely remain unknown as to whether or not Glenroy complied with this further order such as to mean that the proceedings would continue as a defended action but the case nonetheless remains a reminder of how probate claims can in practice involve numerous legal issues which require resolution before consideration can be given to the underlying probate dispute, in this case the validity of the 2008 will.

If you have any questions relating to the issues mentioned in this article, please contact Ally Tow on [email protected]


 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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