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Contested Probate & Estates - Ongoing series of talks from losing counsel

Baker and Another v Dunne and Others (Recorded 2nd December by kind permission of Withers)  - Free Download

Topic - Beddoe relief and seeking vacant possession against beneficiary

Clare Stanley QC appeared for the First Defendant in opposing the trustees' application for Beddoe relief.  His two siblings, the other beneficiaries and Second and Third Defendants supported the application which represented the third time the trustees had sought Beddoe relief.  The trustees started proceedings in 2014 for determination of an issue of construction and for directions regarding the major asset in the estate, the Albert Arms public house in Esher, Surrey which the First Defendant was running a business.

The trustees faced allegations of breach of trust and of passing off.  They in turn alleged abuse of process.

In this audio only recording, Clare addresses the difficulties in challenging Beddoe relief applications and the Court's approach to the various allegations.

J v K & Others (Recorded 25thNovember by kind permission of Withers)  - Free Download

Topic - Royal Court of Jersey orders disclosure of confidential trust information

Andreas Kistler and Richard Holden of Carey Olsen acted for the trustee facing a letter of request from a Missouri Court in the context of divorce proceedings.

The letter asked that personnel from the trust company be required to answer questions on oath as to whether it was trustee of any trust in which the husband had any interest and, if so, what interest he had.  The letter of request also required disclosure of far-reaching documentation.  The trustee objected to providing the information.

Usually such requests have been determined in Jersey by way of application by or against a trustee for directions as to how the trustee should exercise powers or discretions.  Such questions being governed by what is in the best interests of the beneficiaries.  As the wife was not a beneficiary and the trustee had formed the view that it was not in the interests of the beneficiaries to disclose information, her prospects on an application to direct the trustee to disclose would have been slim.  However, the Court regarded the letter of request as invoking the duty of respect and co-operation owed by the Court to the foreign court and ordered disclosure.

Mr Kistler and Mr Holden will address the Royal Court's approach to the issues, lessons to be learned, and the implications for future attempts to break or defend the confidentiality of Jersey and other off-shore trusts.

Jump v Lister (Recorded 13th January by kind permission of Withers) - Free Download

Topic - Literal construction of a will

Edward Hewitt of 5 Stone Buildings appeared for the Defendants, the draftsman and his firm, in an application for construction of Mrs Winston's Will.  All parties accepted that Mrs Winston had not intended a survivorship clause to take effect as drafted but the Judge felt compelled to uphold the literal, unintentional, effect of the words.

Mr and Mrs Winston had been found dead at home.  It is not known who passed away first.  Mrs Winston, being the elder, was therefore deemed to have died first.

Both Wills mirrored the other.  Each spouse left their entire estate to the survivor, and then on the second death to their two nieces.  Both left pecuniary legacies totalling £214,500 intended to be paid once on the death of the survivor.  Because Mr Winston was deemed to have survived, the pecuniary legacies were payable from his estate.  However, Mrs Winston's Will contained a survivorship clause directing that anyone who died within 28 days of her should be deemed to have predeceased.  Thus, for the purposes of Mrs Winston's Will, Mr Winston was deemed to have predeceased and so the pecuniary legacies were also payable under her Will (as well as being payable under Mr Winston's Will).

Rather oddly, the nieces argued in favour of the literal construction, notwithstanding that they lost out by virtue of a duplication of the legacies.  It was left to the draftsman and his firm to put the case for restricting the pecuniary legatees to one lot of legacies only.

Mr Hewitt will discuss the background to the case and the reasoning as well as its implications for draftsmen and for disappointed beneficiaries.

Newman v Clarke (Recorded 13th February by kind permission of Withers) - Free Download

Topic - Trustees & Self Dealing

Mark Warwick QC of Selborne Chambers appeared for the claimant who contended that the first defendant was in breach of the rule against self-dealing.

The defendant trustees applied for summary judgment and, alternatively, to strike out the Particulars of Claim.

The first defendant settled £150,000 on trust to benefit his daughter and grandchildren, the claimants, among others.  His daughter later granted him a lease of her and her husband's property, which entitled him to buy the freehold if he wished.  She and her husband later sold the freehold to the trust.  The first defendant subsequently became a trustee and several years later sought to exercise the leasehold right to purchase the freehold from the trust.

The primary dispute centred on whether the exercise of a right held prior to one's appointment as trustee is outside the scope of the rule against self-dealing.

Mr Warwick will discuss the particular difficulties, the decisions reached and their implications, and practical lessons (including the extent to which the overriding objective permits claimants to amend Particulars of Claim).

Roberts v Fresco (Recorded 29th June by kind permission of Withers) - Free Download

Topic - 1975 Act claims - collateral attacks

Mark Baxter of 5 Stone Buildings represented the defendant in response to 1975 Act claims advanced by Mrs Milbour’s step-daughter and step-granddaughter.  The claimants sought to amend their claim form to bring two new claims.

First, the claimants sought to bring a 1975 Act claim by the estate of Mrs Milbour’s husband, who survived her but then died.  As the beneficiaries of his estate, they would benefit from the estate’s spouse claim.  That attempt was unsuccessful, though: it was held a 1975 Act may not be brought by the estate of a deceased claimant.

Second, the step-daughter claimant sought to bring a claim against her father’s estate for an order under s.2(1)(f) of the 1975 Act, which gives the Court power to vary nuptial settlements: if this claim succeeded, extra provision could be made for her outside his free estate by varying the trust of the multi-million pound matrimonial home.  

To succeed at trial, it would be necessary for the daughter of Mrs Milbour’s husband to prove that he treated her as a child of the family in relation to his marriage to Mrs Milbour.  Notwithstanding the conceptual and evidential questions that would raise, the Deputy Judge accepted it had a real prospect of success and should be left for a trial judge to determine on the evidence.

Mark will consider the threshold for amending to plead new claims, consider the merits of the two attempted new claims, the reasons for his mixed success, and the implications for other 1975 Act claims in the future.

Shah & Padfield v Forsters (Recorded 10th January 2018 y by kind permission of Withers) - Free Download

In this recording, Penelope Reed QC of 5 Stone Buildings will look at Shah v Forsters LLP.

Ms Reed acted for the executors of the late Mrs Collins in a professional negligence claim arising out of the drafting of Mrs Collins' will. Mrs Collins had, unexpectedly, died before her husband. The claim arose because her share of assets owned jointly with her husband passed on her death to Mr Collins. Her executors' complaint was that she could have arranged for her share to pass under the terms of her will to her chosen beneficiaries (which did not include her husband).

The allegation was that if the solicitor who drafted Mrs Collins' will had reviewed Mr Collins' will (and he had a copy at the time he saw Mrs Collins) he would have realised that Mrs Collins could sever the joint ownership without any risk because Mr Collins was leaving his share of the assets to his wife under the terms of his will.

The case received considerable coverage largely hostile to the National Trust which benefited from Mr Collins' estate, although ironically National Trust played no part in the litigation. The issue of joint ownership is fraught with risk for solicitors and other professionals drafting wills. Ms Reed, co-author of Risk and Negligence in Wills, Estates and Trusts (amongst other texts), will address the underlying factors in the decision, the application of the law and lessons to be learned for solicitors and others.