Private client section
  



Back to e-updates     
                                                                     

Issue 42 – November 2009 


OPG survey: Review of the OPG panel of approved Deputies

The OPG has launched a websurvey to help evaluate a number of options they are considering in relation to the way the panel is managed.

Have your say by completing the survey online

News

Cases
  • Barrett v Bem and others
    Will – Execution. On the evidence, a deputy judge of the Chancery Division had been satisfied that it had been impossible for the deceased to have signed the will. Accordingly, the claim for revocation of the grant of probate of the will and a decree pronouncing against the validity of the will was granted
  • MacDonald and another v Frost
    Estoppel – Proprietary estoppel. On the evidence, a judge of the Chancery Division held that the deceased had made no express assurances or promises to either of the claimants that they would inherit from his estate as a result of them making monthly contributions to his, and his second wife's, upkeep

Journals
  • Scope for improvement
    Pensions World, October 2009: The new code of practice places increased emphasis on reading trust documentation thoroughly
  • Value judgment
    Pensions World, October 2009: Trustees are being encouraged to review the commutation factors used by their schemes
  • The private client book club
    Trust and Estates Law & Tax Journal, September 2009: How trusts and estates practice offers an opportunity to deal with real human issues
  • What price a promise?
    Trust and Estates Law & Tax Journal, September 2009: Circumstances where the Revenue may consider a negotiated settlement to be appropriate
  • Willing renunciation
    Trust and Estates Law & Tax Journal, September 2009: The impact of a recent Scottish case on post-death variations
  • The signs of soundness
    Trust and Estates Law & Tax Journal, September 2009: How a recent case demonstrates the narrow evidentiary line in capacity cases
  • Gift with strings attached
    Taxation, 1 October 2009: An employment benefit trust (EBT) is given privileged inheritance tax status in that it is not subject to the normal periodic charge regime
  • You don't have to be posh...
    New Law Journal, 18 September 2009: The current law relating to privileged wills
  • Wills & Probate: no longer the odd couple
    New Law Journal, 18 September 2009: The treatment of co-habitation under probate law

Articles
  • Northern Irish Judgment extends use of proprietary estoppel
    A Northern Irish woman has won £250,000 from the estate of her partner after bringing an action based on the doctrine of proprietary estoppel. Catherine Dixon, a solicitor at James H Rogers & Co in Portadown, tells Jonathan Watson that the case shows how the principle is being extended
Events
  • PS Regional Seminars 2009/10
    The PS regional seminars will cover a range of topics relevant to busy practitioners, and will be conducted by lecturers who are acknowledged experts in their fields
  • PS Webinars 2009
    Abstract: Estoppel – Proprietary estoppel. On the evidence, a judge of the Chancery Division held that the deceased had made no express assurances or promises to either of the claimants that they would inherit from his estate as a result of them making monthly contributions to his, and his second wife's, upkeep
Discounts


Cases

Barrett v Bem and others

Citation: [2009] All ER (D) 157 (Oct)
Hearing date: 9 October 2009
Court: Chancery Division
Judge: Geoffrey Vos QC sitting as a deputy judge of the High Court
Representation: Mark Warwick (instructed by Hatch Brenner) for the claimant. Gabriel Buttimore (instructed by Teacher Stern LLP) for the first defendant. The second to sixth defendants did not appear and were not represented.
Keywords: Will – Execution - Signature - Claimant challenging veracity of deceased's signature - Whether signature on will that of the deceased.

Summary: Section 9 of the Wills Act 1837, so far as material, provides: 'No will shall be valid unless--(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time ...'.

The deceased died on 11 January 2004. Shortly before his death he allegedly made and signed a will leaving his entire estate to his sister, AL. The will was purportedly witnessed by two nurses. AL died in November 2004; however, prior to her death she obtained probate of the deceased's will. AL left her estate to her only surviving child, the first defendant. KB was another of the deceased's sisters and the mother of the claimant. The claimant sought the revocation of the grant of probate of the will and a decree pronouncing against the validity of the will.

The claimant relied on the evidence of a handwriting expert that purported to prove that the signature on the will was not that of the deceased.

The claim would be allowed.

On the evidence, it had been impossible for the deceased to have signed the will (see [47] and [53] of the judgment).

The relief sought would be granted (see [58] of the judgment).

H (minors) (sexual abuse: standard of proof), Re [1996] 1 All ER 1 considered.

Gareth Williams, barrister
Published date: 16/10/2009

MacDonald and another v Frost

Citation: [2009] All ER (D) 55 (Oct)
Alternative citations: [2009] EWHC 2276 (Ch)
Hearing date: 5 October 2009
Court: Chancery Division, Birmingham District Registry
Judge: Geraldine Andrews QC sitting as a deputy judge of the High Court
Representation: Barbara Rich (instructed by Blake Lapthorn Tarlo Lyons) for the claimants. Clifford Darton (instructed by CMHT Commercial) for the defendant.

Keywords: Estoppel – Proprietary estoppel – Conduct leading representee to act to his detriment – Claimants each paying £100 per month to parents - Deceased's will leaving estate to second wife - Whether deceased's estate bound by proprietary estoppel precluding disposal of estate in manner stipulated in will.

Summary: The judgment is available at: [2009] EWHC 2276 (Ch)

The claimants were the deceased's daughters. From 1986 they began making payments of £100 per month to their parents to assist them. Also in 1986, the deceased sold to the second claimant a property for £20,000, approximately half the property's value. Subsequently, the first claimant received a gift of £20,000 from the deceased. The deceased's first wife died in June 1995 and he remarried the defendant in 2002. The claimants maintained their payments of £100. At around the same time as the second marriage, the deceased made a will leaving his estate to the defendant. Pursuant to the will, the claimants were to be left nothing. A final will in similar terms was made in December 2004. The deceased passed away on 23 May 2006, at the age of 83. Probate of the estate was granted to the defendant on 18 August, with the net value sworn to be not in excess of £231,000.

The issue for the court's determination was whether the deceased's estate was bound by a proprietary estoppel that precluded the disposal of the estate in the manner stipulated in the will. The claimants gave evidence that assurances had been repeatedly given to them by the deceased relating to them benefiting from the deceased's estate.

The claim would be dismissed.

It was established that proprietary estoppel comprised three elements: a representation or assurance made to a claimant pertaining to an interest in identified property owned by the maker of the assurance or representation; reasonable reliance on it by a claimant; and detriment to a claimant in consequence of that reliance. It was for the claimant to show that it would be unconscionable for the person who made the assurance or representation to go back on his word and deprive the claimant of the proprietary interest he had been led to expect (see [9] and [11] of the judgment).

On the evidence, the deceased had made no express assurances or promises to either of the claimants after he married for the second time. The arrangement made by the claimants to pay £100 per month each had to have been an essential and integral part of the arrangement by which they came to receive £20,000 and the shop respectively. Taking all the matters into consideration, on the face of it there was no particular reason for the claimants' parents to have made any specific promise or assurance to them that they would receive the balance of their inheritance if they continued to make the regular payments during the remainder of their lifetimes (see [88], [91] and [127] of the judgment).

Thorner v Major [2009] 3 All ER 945 considered.

Gareth Williams, barrister
Published date: 07/10/2009

Journals
 
Scope for improvement

LNB News 14/10/2009 71
Published date: 14 October 2009
Author: Rachel Elwell
Journal name: Pensions World
Journal date: 1 October 2009
Journal citation: Pensions World, October 2009, 43
Jurisdiction: England; Wales

Summary: Considers what the new TKU code of practice means for trustees. New trustees have six months to address TKU requirements and there is a requirement for them to undertake training such as TPR's toolkit. TPR will be placing an increased focus on understanding the steps taken by trustees to address TKU requirements.
 

Value judgment

LNB News 14/10/2009 73
Published date: 14 October 2009
Author: Nicholas Laird
Journal name: Pensions World
Journal date: 1 October 2009
Journal citation: Pensions World, October 2009, 44
Jurisdiction: England; Wales

Summary: Considers whether commutation factors provide fair value for members. Few scheme rules explicitly require them to take legal advice on the matter. However, they would be well advised to obtain legal advice when reviewing commutation factors.

The private client book club

LNB News 08/10/2009 39
Published date: 8 October 2009
Author: Geoffrey Shindler
Journal name: Trusts and Estates Law & Tax Journal
Journal date: 1 September 2009
Journal citation: Trust and Estates Law & Tax Journal, September 2009, 2
Jurisdiction: England; Wales

Summary: Looks at what type of person makes a good trusts and estates lawyer and what clients expect from practitioners. Clients tend to take for granted that lawyers know their area of the law and are able to apply it appropriately and correctly. What they want to know is how their problems are going to be resolved.
 
What price a promise?

LNB News 08/10/2009 45
Published date: 8 October 2009
Author: Peter Nellist
Journal name: Trusts and Estates Law & Tax Journal
Journal date: 1 September 2009
Journal citation: Trust and Estates Law & Tax Journal, September 2009, 17
Jurisdiction: England; Wales
Related cases: Thorner v Major [2009] UKHL 18, [2009] 3 All ER 945

Summary: The second in a two-part article on negotiating inheritance tax issues focuses on estoppel. The law on proprietary estoppel is complex and still developing. The latest case is Thorner v Major on which the House of Lords reached a decision in March 2009. This article first appeared in an amended form in Money Management (May 2009).

Willing renunciation

LNB News 08/10/2009 41
Published date: 8 October 2009
Author: Charlotte Simm
Journal name: Trusts and Estates Law & Tax Journal
Journal date: 1 September 2009
Journal citation: Trust and Estates Law & Tax Journal, September 2009, 4
Jurisdiction: England; Scotland; Wales
Related legislation: Inheritance Tax Act 1984
Related cases: Lau (executor of Lau decd) v Revenue and Customs Comrs [2009] STC (SCD) 352, [2009] SWTI 923

Summary: Looks at the ramifications of Executor of Lau v HMRCC. The issue to be determined by the Special Commissioners concerned the renunciation of a legacy. The question was whether the renunciation was a disclaimer to which Inheritance Tax Act 1984, s 142(1) applied.

The signs of soundness

LNB News 08/10/2009 43
Published date: 8 October 2009
Author: Susi Dunn
Journal name: Trusts and Estates Law & Tax Journal
Journal date: 1 September 2009
Journal citation: Trust and Estates Law & Tax Journal, September 2009, 7
Jurisdiction: England; Wales
Related cases: Ritchie (decd), Re; Ritchie v Joslin [2009] All ER (D) 78 (Apr)

Summary: Looks at the impact of Ritchie v Joslin, which examined the issue of testamentary capacity. When an elderly or infirm client gives instructions for the preparation of a new will, it has long been recognised as good practice for the solicitor to comply with the 'Golden Rule'. However, the will may still be open to a later challenge on the grounds of testamentary capacity.

Gift with strings attached

LNB News 02/10/2009 12
Published date: 2 October 2009
Author: Ian Maston
Journal name: Taxation
Journal date: 1 October 2009
Journal citation: Taxation, 1 October 2009, 320
Jurisdiction: England; Wales

Summary: Asks whether payments into an employee benefit trust are gifts. HMRC's current view on the inheritance tax position when contributions are made to an employee benefit trust (EBT) was set out in Revenue and Customs Brief 49/09 published on 11 August 2009. Explains the background to the main points made and offers a different view.

You don't have to be posh...

LNB News 21/09/2009 43
Published date: 21 September 2009
Author: Malcolm Skinner
Journal name: New Law Journal
Journal date: 18 September 2009
Journal citation: 159 NLJ 1292
Jurisdiction: England; Wales
Related legislation: Wills (Soldiers and Sailors) Act 1918

Summary: Suggests that privileged wills should have become more commonplace. The applicability of such wills has been extant since before the Statute of Frauds in 1677 which increased the scope of privilege which, in turn, has been extended by statute and case law. The current law stems from the Wills (Soldiers and Sailors) Act 1918, s 3 which enables informal wills of soldiers and sailors to dispose of real and personal estate.

Wills & Probate: No Longer the odd couple

LNB News 21/09/2009 39
Published date: 21 September 2009
Author: Michael Tringham
Journal name: New Law Journal
Journal date: 18 September 2009
Journal citation: 159 NLJ 1286
Jurisdiction: England; Wales; Northern Ireland

Summary: Looks at co-habitation as it relates to probate. Cohabitation is the UK's fastest growing type of family relationship, with the number of cohabiting couples increasing by more than 60% over the last 18 years. The law is starting to catch up, but some hard cases point to hurdles along the way where probate is concerned.

Articles

Northern Irish Judgment extends use of proprietary estoppel

LNB News 02/10/2009 41
Published date: 2 October 2009
Jurisdiction: Northern Ireland
Related digests: Financial Provision Update LNB News 12/03/2009 58
Analysis: Anne Mulholland from Ballycastle in Northern Ireland started a relationship with farmer Seamus Kane after leaving school in the 1970s at the age of 16. The relationship lasted until Mr Kane's death in 2004, and according to Ms Mulholland and other witnesses, he promised many times that she would "always have a roof over her head and some land". However, he failed to make a will and his estate passed to his sister and brother. Ms Mulholland began proceedings in 2007, relying on the doctrine of proprietary estoppel. At Northern Ireland's High Court, Mr Justice Deeny awarded her £250,000 from Mr Kane's estate to buy a house and land.

"Many people have assumed that Ms Mulholland has been awarded this money because she was Mr Kane's common law wife, but that is not accurate," says Catherine Dixon, a solicitor at James H Rodgers & Co in Portadown. "The relationship is part of the evidence, but not actually the basis of the case. She did not get money because they were cohabiting. She got money because he promised her a house and some land and she devoted herself to looking after him and working on his farm from the age of 15. She operated to her detriment on the basis of an understanding that had been made. As that expectation was not fulfilled, she ended up being seriously affected in a negative way.

"I've never seen the principle of proprietary estoppel used in this context. It's based on the idea that it's unfair for a legal title holder to deny a right to anyone who has acted to his or her detriment on the basis of an assurance that he or she will acquire rights in or over a property. It's the same as when someone is in business and they put themselves on the back foot to accommodate someone else who's made a promise to them about land. They might say 'you can use this garage and I'll give it to you when I close the business, but in the meantime can you help me out'. They might make this promise several times and you might put yourself out financially, passing up other opportunities for partnership on the strength of those promises. You then discover when the person dies that they have not made any provision for you at all. If supported by the evidence, a court would describe this behaviour as unconscionable.

"I would never have thought of proprietary estoppel as the basis on which to bring this case. I would have brought it under the Inheritance (Family Provision) legislation, which would have been more obvious but would have resulted in a lower award. However, the nature of the facts, particularly the promises of a roof over her head and some land, which had also been communicated to others, made it possible to base the case on proprietary estoppel. This case is very specific to its particular facts."
 

PS Regional Seminars 2009 / 10 sponsored by:

Link Text

If you have any comments about this or any other news item or feature, please respond via e-mail to: news@lexisnexis.co.uk

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.