Devise of property now housing museum was beneficial gift to city council, High Court rules

HHJ Paul Matthews, sitting as a judge of the High Court, was asked to determine the status of the house, which has served as a local museum for Topsham for more than 40 years.

Exeter brought the case against David Macklin and Michael Gaye, executors of the estate of the late Dorothy Holman, who left the house to the council both under her will and an unwitnessed statement of wishes. She was related by marriage to Ms Leigh.

The judge said the case concerned whether the house was left to Exeter as a beneficial gift, a conditional gift, a gift on trust (and if so on what trusts), “or to some other, and if so what, effect?”

He noted the property was constructed in 1688 and is of significant historic interest as a merchant's house. Parts are listed and Grade II.

Exeter in 1983 formally accepted the gift of the property, and it was thereafter registered at HM Land Registry in the council’s name.

HHJ Matthews said: “The present problems stem from the fact that the property requires very substantial and urgent repairs.”

In May 2024, Exeter commissioned works worth £106,000 but when old render was removed “it became apparent that considerably more repair and upgrade works were necessary to bring the building into a safe condition”, he said. Later estimates increased the budget to about £430,000.

In November 2025 Exeter began work to make the premises watertight, but the further work necessary is now estimated at a further £500,000, the court was told.

Exeter said it could not afford this within existing budgets, and would need to borrow.

But its ability to borrow “in large part depends upon the existing legal position,” HHJ Matthews said.

“If the claimant is the beneficial owner, there are more options open to it, such as borrowing on security of the property, and selling or leasing part (or even all) of it on commercial terms.”

After considering Ms Holman’s will in detail, HHJ Matthews said: “The conclusion that I accordingly come to, without at this stage resort to any extrinsic evidence, is that the gift to the claimant, though conditional, was, once the conditions were satisfied, intended by the testatrix to be a beneficial one to the claimant, untrammelled by any trust.” [judge's emphasis]

He added: “I conclude that this is indeed a beneficial gift to the claimant. It therefore follows that the claimant has no fiduciary or other duty to preserve the property as a museum for the people of Topsham, or indeed Exeter.”

The judge said he expected Exeter to have “a proper regard for the wishes of the testatrix, particularly since it has done so in the more than 40 years [and] as a public body composed of elected members, it will not lightly make any decision to depart from those wishes in the future.

“But, as a matter of property and trust law, as beneficial owner it may do so.”

Mark Smulian