Dutton v. Dutton & Brown [2000] EWHC Ch 167 (3rd February, 2000)

Dutton v. Dutton & Brown [2000] EWHC Ch 167 (3rd February, 2000)

The option in clause 3 is valid; the price to be determined is a fair and reasonable price for the testator's interest, not open market value as a term of art; the previous valuation was not in accordance with the will as construed and a new valuation by a different valuer is required, with instructions to determine a fair and reasonable price considering all relevant circumstances.

Citation
[2000] EWHC Ch 167
Parties
Petitioners: John Dutton and Nicholas Dutton; First Defendant: Andrew Dutton; Second Defendant: David Brown (Executor)
Jurisdiction
England and Wales
Procedural Posture
Probate/chancery / Judgment on Application for Determination of Validity and Construction of Testamentary Option and Valuation
Outcome
Option upheld as valid; previous valuation set aside; new valuation ordered.
Legal Topics
Construction of Wills, Testamentary Options, Valuation of Property Interests, Special Purchaser in Valuation, Executor Duties
Wills and Probate Trusts Property Law Construction of Wills Testamentary Options Valuation of Property Interests Special Purchaser in Valuation Executor Duties

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Parties

John Dutton and Nicholas Dutton

Petitioners

Andrew Dutton

First Defendant

David Brown (Executor)

Second Defendant

Procedural Posture

Probate/chancery / Judgment on Application for Determination of Validity and Construction of Testamentary Option and Valuation

Legal Issues

  1. 1 Whether the option granted by clause 3 of the will is valid given the testator did not own the whole of the property at death
  2. 2 Whether the valuation by Mr Lewis constituted a valuation in accordance with the option
  3. 3 What is the correct basis for determining the price under the option—open market value or fair and reasonable price

Ratio Decidendi

The option in clause 3 is valid; the price to be determined is a fair and reasonable price for the testator's interest, not open market value as a term of art; the previous valuation was not in accordance with the will as construed and a new valuation by a different valuer is required, with instructions to determine a fair and reasonable price considering all relevant circumstances.

Court Disposition

Option upheld as valid; previous valuation set aside; new valuation ordered.

Orders

  • Executors to appoint a new valuer (not Mr Lewis) with local knowledge, after consulting beneficiaries;
  • Valuer to determine a fair and reasonable price for the testator's interest in Bunbury House as at 17 October 1997, considering all relevant circumstances and not bound by RICS open market value definition;