Reynolds v Paulene Saul [2024] EWHC 3593 (Ch) (07 October 2024)

Neutral Citation Number: [2024] EWHC 3593 (Ch) Case No: PT-2024-LDS-000054 IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS IN LEEDS PROPERTY, TRUSTS AND PROBATE LIST (ChD) IN THE MATTER OF AN APPLICATION FOR A DECLARATION OF THE PRESUMED DEATH OF PAULENE SAUL AND IN THE MATTER OF THE PRESUMPTION OF DEATH ACT 2013 Leeds Combined Court Centre The Courthouse, 1 Oxford Row, Leeds LS1 3BG 7 October 2024 B e f o r e : DISTRICT JUDGE BOND ____________________ Between: CHRISTOPHER ASHFORD REYNOLDS (as administrator of the Estate of Dennis John Fullwood) Claimant – and – PAULENE SAUL Defendant ____________________ Nicola Phillipson (instructed by Ramsdens Solicitors LLP) for the Claimant Hearing dates: 19 July 2024 ____________________ HTML VERSION OF JUDGMENT APPROVED ____________________ Crown Copyright © District Judge Bond: Introduction On 2 May 2020 Dennis John Fullwood passed away. Mr Fullwood lived at 95 Balvernie Grove, Southfields, London SW18 5RQ. The Claimant is Mr Christopher Reynolds, a solicitor and the personal representative of Mr Fullwood's estate. He is appointed as an attorney to act on behalf of Madeleine Vanessa Fitzgerald. It does not appear that either Mr Reynolds or Ms Fitzgerald knew Mr Fullwood personally. They were strangers to him, his property and his affairs during his lifetime. Mr Fullwood purchased 95 Balvernie Grove in 1973 and lived there until he died. Enquiries with HM Land Registry have revealed that a person by the name of Paulene Saul is the joint registered proprietor. Nobody connected to Mr Fullwood has any idea who she is. Extensive searches have been carried out to locate Ms Saul. She cannot be traced. Other than in documents relating to the purchase of the property, there is no record of her existence. Mr Fullwood and Ms Saul owned 95 Balvernie Grove as joint tenants at law and in equity. The entire interest in the property passes to the survivor of them. Mr Reynolds is unable to administer Mr Fullwood's estate until he is able to ascertain which of the co-owners has predeceased the other. It is in those circumstances that Mr Reynolds seeks a declaration under the Presumption of Death Act 2013 (' the Act ') that Ms Saul is presumed to have died 7 years after 1 October 1973, the date of the transfer of 95 Balvernie Grove, and on which it is said she was last known to be alive. The effect of the declaration sought is that Ms Saul will be presumed to have predeceased Mr Fullwood, and 95 Balvernie Grove has fallen into his estate. Miss Phillipson appeared for Mr Reynolds at the hearing of the claim. No other person with any interest was identified or appeared. Counsel was characteristically thorough in her research and detailed in her submissions. She discharged her duties to the court with admiral care and clarity and I extend my gratitude to her for her considerable assistance in this unusual case. The statutory framework Section 1 of the Act governs when an application under it may be made. Section 1(1) is in these terms: "(1) This section applies where a person who is missing— (a) is thought to have died, or (b) has not been known to be alive for a period of at least 7 years." Unless the applicant is the missing person's spouse or civil partner, the jurisdictional requirements in section 1(3)(a) or (b) must be met: "(3) The court has jurisdiction to hear and determine an application under this section only if— (a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive, (b) the missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day,[…]" By section 1(5): "(5) The court must refuse to hear an application under this section if— (a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and (b) the court considers that the applicant does not have a sufficient interest in the determination of the application." By section 2(1), the making of a declaration is mandatory (not discretionary) if the court is satisfied that the missing person either: "(a) has died, or (b) has not been known to be alive for a period of at least 7 years." The burden of proof is on the Claimant. The standard of proof is the balance of probabilities: Greathead v Greathead [2017] EWHC 1154 (Ch) . The facts 95 Balvernie Grove is leasehold land. By a deed executed on 1 October 1973 the property was transferred to Mr Fullwood and Ms Saul. Their postal address recorded on the transfer was 59 Tonsley Hill, S. W.18. The property was purchased with the assistance of an advance made by The Mayor and Burgesses of the London Borough of Wandsworth pursuant to their powers under section 43 of the Housing (Financial Provisions) Act 1958. The advance was secured by a legal charge dated 1 October 1973. The copy of the charge filed at HM Land Registry is not an executed copy and bears no signatures. However, the copy states that it was signed, sealed and delivered by Mr Fullwood and Ms Saul in the presence of a solicitor, H. C. Wolfers, of 10B High St. S. W.19. On 8 October 1973 95 Balvernie Grove was registered in the joint names of Mr Fullwood and Ms Saul. Their address, as recorded in the title register, is the address of the property. This is consistent with the land registration application, which is in evidence. The land registration application indicates that the property was to be held as joint tenants. No Form A restriction has since been entered on the register to indicate a severance of the joint tenancy. On 13 July 1998 Mr Fullwood and one Julia Ann Hardy were registered as joint proprietors of the freehold of 95/97 Balvernie Grove. Ms Hardy is the proprietor of the leasehold estate in 97 Balvernie Grove. Ms Hardy has given a witness statement. Her evidence is that no. 97 was previously owned by her parents and assented to her in around 1971. Ms Hardy lived next door to Mr Fullwood for over 50 years but knew nothing of Ms Saul, despite having been in occupation at the time no. 95 was purchased. Ms Hardy describes Mr Fullwood as " a character and a hoarder ". He had told her that he had once been engaged but did not say to whom. Ms Hardy contacted Mr Phil Greaves, a former colleague of Mr Fullwood's, who knew some of his friends. Mr Greaves told Ms Hardy that: "only one old friend of Denis' came forward to say that he thought Miss Saul was Dennis's girlfriend some 30 or 40 years ago. He knew nothing of why they split up or what became of her." In June 2023 Mr Reynolds instructed Tremark Associates Limited to undertake tracing enquiries into Ms Saul. On 12 June 2023 they reported that: "Unfortunately, despite extensive enquiries undertaken on your behalf, we regret that on this occasion we are unable to locate any reliable source of information in respect of the subject and we have been unable to trace or confirm their address." On 6 July 2023 the London Borough of Wandsworth Council Tax Service confirmed that: "Unfortunately, we have no record of Pauline [sic] Saul as owner nor residing at the property at any time, and am unable to assist with any correspondence details." On 6 November 2023 Mr Reynolds instructed Finders International UK ('FIU'). They searched the birth, marriage and death indices across Find My Past, Ancestry and Free BMD for "Paulene Saul" and other variants of that name. There were no exact matches. Nine ladies who were, or had been, known as "Pauline Saul" were identified. None of them could be positively identified as the search subject. FIU submitted a freedom of information request for Mr Fullwood to the NHS. On 10 February 2023 the NHS responded stating: "NHS England does not hold the information you have requested. The only address we hold for the named individual is that which you have provided." FIU searched the electoral registers for 95 Balvernie Grove from 1971 to 1990. Mr Fullwood was the only registered voter from 1974 onwards. Ms Saul has never been registered to vote at the property. The electoral registers for 59 Tonsley Hill, the address given for Mr Fullwood and Ms Saul on the transfer deed, were also searched from 1950 to 1973. Various members of the Fullwood family were registered to vote including, from 1965, Dennis. Ms Saul was never registered to vote at that property. FIU also made enquiries with known associates of Mr Fullwood. They made contact with Mr Glenn Johnson, who confirmed that he met Mr Fullwood in the " very early 80s " and knew him " very well ". He has given a very thoughtful and detailed account of the life and times of Mr Fullwood. Mr Johnson has shared what he knew about Mr Fullwood's childhood, education and family (relatively little), and dedicated most of his colourful account to a fond recollection of Mr Fullwood's interests, and his various escapades over the years. Despite an enduring friendship over many decades, Mr Fullwood had never mentioned Paulene Saul to Mr Johnson. FIU have scoured social media and Google regularly since May 2022 but no obvious results have been located. A news report relating to the death of one Pauline Saul was noted from 2021 but she was, again, not identified as the search subject. On 10 November 2023 a missing beneficiary notice addressed to Paulene Saul was published in The Gazette and a public notice in similar terms was published in the South London Press, London Weekly News & Mercury. No responses were received. Miss Phillipson submits that on this evidence Ms Saul was last known to be alive on 1 October 1973, which is the date of the last, and indeed the only known, document she executed in connection with the purchase of the property. This was the mortgage deed dated 1 October 1973. The issues The substantive issues to be determined are these: (1) Is Paulene Saul "missing" within the meaning of section 1(1) of the Act? (2) Was she domiciled in England and Wales on the day on which she was last known to be alive, or habitually resident in England and Wales throughout the period of 1 year ending with that day? (3) Does Mr Reynolds have a sufficient interest in the determination of the application? (4) Has it been proved, on the balance of probabilities that Paulene Saul has died or has not been known to be alive for a period of at least 7 years? Is Paulene Saul "missing" within the meaning of section 1(1) of the Act? Despite there being no trace of Ms Saul's existence after, or indeed before, the property purchase, I proceed on the basis that there was a living person who went by the name Paulene Saul on 1 October 1973. I was initially troubled by the description of Ms Saul as "missing". Ordinarily, the term is used as a relative concept: a person is described as missing relative to a place they would ordinarily expected to be, and missed by someone who would ordinarily expect them to be there. In this case the Claimant is a person who has never known her, has found no one who has ever known her, and there is no documentary evidence of her existence other than a fleeting appearance at HM Land Registry on 1 October 1973. The definition of "the missing person" in section 20(1) of the Act is: ""the missing person", in relation to a declaration under this Act or an application, determination or order made in connection with such a declaration, means the person who is or would be the subject of the declaration" Miss Phillipson submits that the term "missing" is a convenient descriptor of the person who is the subject of the application. It is not intended to impose an additional threshold requirement for the exercise of the court's jurisdiction. She contrasted the Act with the Guardianship (Missing Persons) Act 2017. Section 1 of the 2017 Act contains a statutory definition of "missing", which broadly means that the subject is absent from their usual place of residence, absent from their usual day-to-day activities, and of unknown whereabouts, uncontactable or unable to make or communicate decisions about their property and financial affairs by reason of something other than incapacity. I am satisfied taking section 1(1) of the 2013 Act as a whole that Miss Phillipson is right and that the Act does not require the court to be satisfied that the subject of the application is missing as an independent criterion. The two factors identified in section 1(1) are either that the subject is thought to have died, or has not been known to be alive for at least 7 years. It is implicit in both that the subject cannot be found. The word "missing" here adds nothing to the two express statutory conditions and I agree with Miss Phillipson that it is used in a general sense as a descriptor. I am fortified in that conclusion by the statutory definition in section 20(1). This is in contrast to the 2017 Act which contains a detailed statutory definition of the term. Under that Act the subject of the application is thought to be alive and their status as missing is a necessary precondition to the appointment of a guardian, for it is only that which justifies what would otherwise be an impermissible interference with a living person's autonomy. Was Paulene Saul domiciled in England and Wales on the day on which she was last known to be alive, or habitually resident in England and Wales throughout the period of 1 year ending with that day? Miss Phillipson concedes, very fairly, that there is no evidence of Ms Saul's habitual residence in the year preceding the date on which it is contended she was last known to be alive, 1 October 1973. I am asked to find that Ms Saul was domiciled in England and Wales on that date. The concept of domicile is used in its usual common-law sense: Greathead at [13]; Austin v Mitchell [2020] EWHC 3486 (Ch) at [13]. The facts from which I am asked to infer Ms Saul's domicile on the balance of probabilities are: (1) she purchased 95 Balvernie Grove, a property in England and Wales; (2) she did so with the assistance of a mortgage from the local authority; and (3) she gave another address in England and Wales, 59 Tonsley Hill, as her current address on the transfer deed. From those three facts, and the absence of any indication that Ms Saul had a domicile elsewhere, I am invited to conclude that England and Wales was her permanent home and thus her domicile. The electoral roll for 59 Tonsley Hill strongly suggests that this was Mr Fullwood's family home, but there is no trace of Ms Saul's residence at that property. Despite Ms Hardy being in occupation next door prior to the purchase of 95 Balvernie Road, she knew nothing of Ms Saul, and there is no evidence that Ms Saul ever set foot in the property, let alone took up residency there. There is no positive evidence that Ms Saul lived at either property as her home. Still less is there any evidence that she had made her permanent home in any place in England and Wales, or that England and Wales is to be regarded by the law as her domicile for any other reason, for example as a domicile of origin or domicile of dependency. There is not a trace of Ms Saul, her family or her origins in any known record (other than the title register for 95 Balvernie Grove). Whilst I am prepared to assume that it was less common in the 1970s for foreign domiciles to purchase property in England and Wales than it is today, that cannot possibly bridge the evidential gap in this case. The fact that 95 Balvernie Grove was mortgaged, in particular to a local authority rather than an institutional lender, and that it was a joint purchase, could be indicative of some degree of permanence in the jurisdiction, but those factors similarly cannot provide a sufficient evidential foundation to support a positive finding of domicile. The absence of evidence that Ms Saul was domiciled elsewhere is not wholly irrelevant but it is far from probative, whether taken alone or with the other factors that I am asked to consider. Domicile has not been proved. The claim must therefore fail on this ground. Does Mr Reynolds have a sufficient interest in the determination of the application? In In re Fisher [2023] 1 WLR 2294 HHJ Paul Matthews discussed the various interests that may exist when the question of presuming someone to have died arises: "9. …There are a number of aspects to this. One is the very real emotional interest that members of a family, and indeed close friends, have in each other's lives, simply as such. Some of those family members (though by no means all) are covered by section 1(5)(a), but others are not. A second is the financial interest that some people have in the continued lives of others, such as minors living with the missing person and indeed other dependants. A third is the financial interest that some have in the deaths of others, such as heirs, beneficiaries under insurance policies and the like. A fourth interest is that of the public itself, in relation to aspects of government, such as civil registration, taxation and social security. There may be other interests too. 10. How far the term "sufficient interest" in the 2013 Act extends to these various interests, and indeed others, is a matter which should be decided on the usual casuistic basis…" The question in that case was whether the putative executrix of the will of a missing person had a sufficient interest in the determination of an application under the Act. It was held that she did. I cannot do justice to the detailed reasoning in a short summary. What is clear is that an executrix has an interest in proving what appears to be a valid will, and the creditors and beneficiaries of an estate, in whose collective interests an executrix is required to act, have an interest long recognised by the law in the due administration of the estate. In this case, Mr Fullwood's estate has a real and substantial interest in the question whether Ms Saul is presumed to have died, and when, for the purpose of ascertaining which of them is the survivor of the other and into whose estate 95 Balvernie Grove falls. Mr Reynolds, as the personal representative of Mr Fullwood's estate, has a sufficient interest in the determination of the application. Has it been proved, on the balance of probabilities that Paulene Saul has died or has not been known to be alive for a period of at least 7 years? Miss Phillipson rightly conceded that there is simply no evidence that Ms Saul has died. Rather, she submitted that, despite extensive enquiries, there is no record of Ms Saul having been alive at any time since she executed the transfer deed on 1 October 1973. She has therefore not been known to be alive for at least 7 years. I was, again, initially troubled by the suggestion that Ms Saul has "not been known to be alive" (my emphasis). At first blush this too appears to be a relative concept. One might consider that the question whether a person is known to be alive can only relevantly be asked in a relational context by reference to a person or persons who have positively known the subject to have been alive in the past. However, I consider that, once it is established that a person was once alive, a stranger may prove that that person has not been known to be alive for a period of 7 years if all reasonable enquiries fail to reveal any trace of their continued life. In this day and age it is almost impossible for a living person to leave no footprint, other than by design and constant vigilance. The reference to it being "known" in the Act, is not limited to the subjective knowledge of a person or persons connected in some way with the missing person, although in almost all cases it will be. It may be proved by means of an objective enquiry by a stranger, provided always that the Claimant is a person with sufficient interest to apply under the Act. I am satisfied that all reasonable enquiries have been undertaken by or on behalf of Mr Reynolds. There has been no trace of Ms Saul since 1 October 1973, and no evidence to even suggest what may have become of her. In those circumstances, I cannot be satisfied that Ms Saul has died, as Miss Phillipson accepts, but I am satisfied that she has not been known to be alive for a period of at least 7 years. Conclusion But for the issue of domicile / habitual residence, by section 2(4) of the Act I would have found that Ms Saul is presumed to have died on 1 October 1980 and made a declaration accordingly. All of the procedural requirements have been met. However, as matters stand, I must dismiss the claim because the Claimant has not proved, on the balance of probabilities, that Ms Saul was domiciled in England and Wales on 1 October 1973, or habitually resident in England and Wales throughout the period of 1 year ending with that day. Order Accordingly. 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