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Issue 44 – February 2009
News
Features
Cases
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Probate - Will. The Chancery Division set aside a will that bequeathed the deceased's whole estate, comprising a farm and the associated farming business, to a charity while making no provision for the deceased's only daughter. The will was made as a result of undue influence exerted by the deceased's husband. Additionally a promissory estoppel had arisen in favour of the claimant as a result of promises made by the deceased and by the claimant's reliance on them.
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Will - Construction. A judge of the Chancery Division construed the last will and testament of the testatrix as meaning that the residue of her estate would pass on to A, F and P, being the only 'surviving relatives' she had mentioned to her executor.
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Trust and trustee - Duty of trustee. The Chancery Division of the High Court held that assets of a fund which was to be wound up were to be made to those investors in the fund who had contributed from the time that contributions had become regular.
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Probate - Grant. The Chancery Division held that a grant of letters of administration would be revoked in accordance with section 18B(1) of the Wills Act 1837 as a consequence of the deceased having entered into a civil partnership subsequent to execution of the will.
Legislation
(Appointed Day, Savings and Consequential Amendments) Order 2009
Journals
- The Last Dance?
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Trusts and Estates Law & Tax Journal, December 2009, 4: How a recent case affects the operation of inheritance tax business property relief
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Trusts and Estates Law and Tax Journal December 2009, 14: How a recent case clarifies the issues relating to the valuation on death of shares and other securities
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Taxation 7, January 2010, Issue 4237: What is the tax position of a trust which appears to have both possible beneficiaries and immediate beneficiaries?
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Child and Family Law Quarterly, December 2009: If some form of sharing between a surviving spouse and the deceased's children is still to be a form of the intestacy rules, we need to target the people we really want to protect.
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New Law Journal, 11 December 2009: How will new legislation affect accumulation rules?
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New Law Journal, 11 December 2009: How did the courts resolve a high value intestacy involving a Greek shipping heir?
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New Law Journal, 27 November 2009: How do the courts treat rectification and statutory wills?
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New Law Journal, 27 November 2009: What is the future for inheritance law?
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Wills and Probate: Heaven Sent
New Law Journal, Issue 7394: Should cohabitants be treated the same as married couples under intestacy law?
Articles
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Controversial new rules have been proposed by the Law Commission to give cohabiting couples with children automatic inheritance rights. Selena Masson speaks to family specialists Baroness Deech and Mark Piercy of Piercy & Co about the proposals
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Dr Christine Gill finally won her three-year legal challenge against the RSPCA over her late mother's 1993 will, which had left their 287-acre farm to the animal charity. The case attracted much media attention but what of its significance in legal terms?
Discounts
Members are entitled to 20% off selected titles from Law Society Publishing (quote promotion code (PROBR) online or by telephone orders on 0870 850 1422). Recent titles include:
Updated guidelines on assessing mental capacity, invaluable for all professionals working with people who lack, or may lack, capacity to make decisions
Events
Cases
Gill v Woodall and others
Citation: [2010] All ER (D) 60 (Jan)
Alternative Citations: [2009] EWHC 3491 (Ch)
Hearing Date: 5 October 2009
Court: Chancery Division
Judge: James Allen QC sitting as a deputy judge of the High Court
Representation: Tracey Angus for the claimant. The first and second defendants were not represented and did not appear. Elspeth Talbot Rice QC for the third defendant.
Abstract: Probate - Will. The Chancery Division set aside a will that bequeathed the deceased's whole estate, comprising a farm and the associated farming business, to a charity while making no provision for the deceased's only daughter. The will was made as a result of undue influence exerted by the deceased's husband. Additionally a promissory estoppel had arisen in favour of the claimant as a result of promises made by the deceased and by the claimant's reliance on them.
Keywords: Probate - Will - Validity - Execution - Undue influence - Deceased making will in favour of charity and making no provision for only child - Whether undue influence exerted by deceased's husband - Deceased indicating that the claimant would inherit the estate - Claimant relying on deceased's statements to her detriment - Whether estoppel in favour of claimant.
Summary:
The judgment is available at: [2009] EWHC 3491 (Ch)
The claimant was the only child of Mr and Mrs Gill (the testatrix), who died in 1999 and 2006 respectively. The first and second defendants were the solicitors and executors appointed by the testatrix's will. The third defendant was a charity for the prevention of cruelty to animals, the sole residuary beneficiary of the testatrix's estate pursuant to the terms of her will. The will provided that her estate would be left to her husband, and, in the event of him predeceasing her, to the third defendant. The testatrix's husband had made a 'mirror will' at the same time. He had a dominant personality, whereas the testatrix suffered from agoraphobia with symptoms of severe anxiety and was heavily dependant upon him. The estate at the time of her death comprised of a farm and the associated business. The claimant had worked for many years on the farm, and the deceased had indicated that the claimant would inherit the farm. Following the testatrix's death, the first and second defendants prepared to sell the farm. In the instant actions, the claimant disputed the validity of the testatrix's will.
The claimant alleged that, at the time the testatrix executed the will, she did not know and approve its contents. Additionally the claimant alleged that she executed the will as a result of coercion exerted by the testatrix's husband. The claimant advanced an alternative claim in proprietary estoppel based upon an assertion that she expected to inherit the farm and the farming business, which expectation was encouraged by the testatrix and that she acted to her detriment in reliance upon that expectation. The third defendant argued that if such an equity had arisen in favour of the claimant, the transfer to the claimant of the farm and the farming business would be disproportionate in the context of the detriment that the claimant might have suffered in reliance upon the expectation.
The claim would be allowed.
(1) Before a will was granted probate, the court must be satisfied that the testator knew and approved of the contents of the will at the time it was signed. Ordinarily, proof of testamentary capacity and due execution of the will gave rise to a prima facie presumption of knowledge and approval of the will and its contents by the testator. However, where circumstances surrounding the preparation and or execution of the will reasonably excited suspicion that the testator might not have known or may not have approved of the contents of the will, the court would require positive proof of the testator's knowledge and approval. In those cases, the burden of proof lay upon those propounding the will (see [459] of the judgment).
The court's suspicion was aroused by the attitude that the testatrix had displayed for the third defendant during her life and by her not providing for her daughter. However, it was dispelled by the evidence of the consideration that the testatrix gave to the will (see [478]-[481] of the judgment).
Guardhouse v Blackburn LR 1 P & D 109 considered; Harter v Harter LR 3 P & D 11 considered; Tyrrell v Painton [1891-4] All ER Rep 1120 considered; Fuld's Estate (No 3), Re, Hartley v Fuld [1968] P 675 considered; Morris, Re, Lloyds Bank Ltd v Peake (Hurdwell cited) [1971] P 62 considered; Fuller v Strum [2002] 2 All ER 87 considered; Hoff v Atherton [2004] All ER (D) 314 (Nov) considered.
(2) Undue influence was not established by advice, suggestion or persuasion, it had to amount to coercion. It was only where the testator was coerced into doing that which he did not desire to do that it was undue influence (see [485]-[489] of the judgment).
As testatrix was a shy and timid person, who suffered from agoraphobia with symptoms of severe anxiety, she was unusually dependant upon her husband and was concerned not to lose his support. The court considered that the husband would have regarded the farm as his to dispose of as he wished and would have expected the testatrix to defer to his wishes. Considering the claimant's relationship to her mother, the court decided that the testatrix's wish was for the property to be inherited by the claimant. The court found that the pressure exerted upon the testatrix by her husband amounted to coercion (see [490]-[499] of the judgment).
The will would be set aside for undue influence, and the farm and business transferred to the claimant.
Parfitt v Lawless LR 2 P & D 462 considered; Hall v Hall LR 1 P & D 481 considered; Edwards (deceased), Re, Edwards v Edwards [2007] All ER (D) 46 (May) considered.
(3) The court considered established principles relating to promissory estoppel. The court accepted that there was a close relationship between the claimant and the testatrix, that there was a tradition of inheritance of farms in Yorkshire farming families. The court also accepted that the testatrix's parents had acknowledged and approved of that tradition. The court accepted that the claimant had acted in reliance on this expectation by spending a substantial period of time working on the farm. The claimant had forgone a career in the pharmaceutical industry and adopted an academic career to have significant amounts of time to spend on the farm. The farming activity was pursued at the expense of her research activities as an academic. The award of the farm to the claimant would not be a disproportionate result in all the circumstances.
Ramsden v Dyson and Thornton LR 1 HL 129 considered; Bolsom (Sidney) Investment Trust Ltd v E Karmios & Co (London) Ltd [1956] 1 All ER 536 considered; Crabb v Arun District Council [1976] Ch 179 considered; Greasley v Cooke [1980] 3 All ER 710 considered; Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd, Old and Campbell Ltd v Liverpool Victoria Friendly Society [1981] 1 All ER 897 considered; Basham, Re [1986] 1 WLR 1498 considered; JT Developments Ltd v Quinn [1991] 2 EGLR 257 considered; Gillett v Holt [2000] 2 All ER 289 considered; Jennings v Rice [2003] 1 P & CR 100 considered; Uglow v Uglow [2004] All ER (D) 472 (Jul) considered; Thorner v Major [2008] EWCA Civ 732 considered; Yeoman's Row Management Ltd v Cobbe [2008] 4 All ER 713 considered.
Edward Cole: Barrister
Published date: 14/1/2010
Harris v The Beneficiaries of the Estate of Margaret Alice Cooper (deceased)
Citation: [2010] All ER (D) 64 (Jan)
Hearing Date: 14 January 2010
Court: Chancery Division
Judge: Norris J (judgment delivered extempore)
Representation: Carol Davis (instructed by Jacksons) for the claimant.
Abstract: Will - Construction. A judge of the Chancery Division construed the last will and testament of the testatrix as meaning that the residue of her estate would pass on to A, F and P, being the only 'surviving relatives' she had mentioned to her executor.
Keywords: Will - Construction - Intention of testator - Home-made will - Testatrix leaving residue of estate to 'surviving relatives' - Executor giving evidence that testatrix only referring to three first cousins - Executor seeking court declaration as to testatrix's beneficiaries - Whether specified first cousins the 'surviving relatives' mentioned in testatrix's will.
Summary: The testatrix died in April 2008. By a home-made will, she left her property to the claimant, who was also her executor. The testatrix's residuary estate was to be divided equally 'between her surviving relatives'. The claimant gave evidence that the only relatives that the testatrix had mentioned had been her first cousins on her mother's side, A, F and P. Further, no mention had been made of another first cousin, E, who had not been seen since 1939, A or P's families, nor any relative on the testatrix's father's side. The claimant applied for a declaration as to who were the appropriate beneficiaries.
The court had to determine who were the objects of the testatrix's gift and their respective interests, having regard to section 21 of the Administration of Justice Act 1982.
The court ruled: The meaning of each set of words had to be decided by reference to the precise verbal and factual context in which the words had been used. Further the court would strive to give effect to a gift made rather than declare them meaningless and to resort to a partial intestacy.
In the circumstances of the instant case, the testatrix had intended to leave her residuary estate to A, F and P alone, to be divided equally between them.
Bridgen, Re, Chaytor v Edwin [1937] 4 All ER 342 considered; Gansloser's Will Trusts, Re, Chartered Bank of India, Australia and China v Chillingworth [1951] 2 All ER 936 considered; Poulton's Will Trusts, Re, Smail v Litchfield [1987] 1 All ER 1068 considered.
Gareth Williams: Barrister.
Published date: 14/01/2010
Citation: [2009] All ER (D) 188 (Dec)
Hearing Date: 18 December 2009
Court: Chancery Division
Judge: Robin Knowles QC (sitting as a deputy judge of the High Court)
Representation: Barbara Rich (instructed by Gill Akaster) for the claimant. David Rees (instructed by BPE Solicitors) for the defendant.
Abstract: Trust and trustee - Duty of trustee. The Chancery Division of the High Court held that assets of a fund which was to be wound up were to be made to those investors in the fund who had contributed from the time that contributions had become regular.
Keywords: Trust and trustee - Duty of trustee - Investments - Fund established by investors in a mortgage business - Fund to be wound up - Court determining which investors to distribute surplus fund to.
Summary: A fund was established in 1991 to meet investors' shortfalls in a private mortgage business. The business involved investors investing in mortgage loans made to particular borrowers, rather than all mortgage loans collectively. Periodic contributions to the fund were made by investors and used to meet losses which would be suffered by individual investors as a result of borrowers defaulting on loans. The contributions took the form of interest payments made by borrowers which would otherwise have been received by investors. At first, the contributions to the fund were voluntary and irregular, but investors supported the approach and soon contributions were made by investors generally. From 1992, the contributions were put on a continuous footing. A surplus started to accrue in the fund from 1995. The last contribution to the fund was made in 1998. The business subsequently ceased trading. The instant claim was issued by the trustees of the fund to seek directions of the court as to the distribution of what remained in the fund in order to wind it up.
The court considered whether to distribute the value of the fund to any person that might have contributed to it from the date of its inception or to those persons who contributed to the fund from 1992 when it became regular, or after 1995 from when a surplus accrued in the fund.
The court held: The court was concerned to find a solution that was practical and realistic which was also consistent with principle, and to guard against additional expense. The assets of the fund should be distributed to investors in the fund in proportion to the contribution each made since 1992. No account should be taken of the date in which a contribution to the fund was made. To take any other approach would be to attribute a level of precision that was not intended when contributions were sought and made, and would cause greater administration costs to the fund (see [18]-[20] of the judgment).
Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 considered; Russell-Cooke Trust Co v Prentis [2002] All ER (D) 22 (Nov) considered; Eastern Capital Futures Ltd (in liquidation), Re [1989] BCLC 371 considered.
Edward Cole: Barrister.
Published date: 18/12/2009
Court and others v Despallieres Re Ikin (Deceased)
Citation: [2009] All ER (D) 167 (Dec)
Alternative Citations: [2009] EWHC 3340 (Ch)
Hearing Date: 17 December 2009
Court: Chancery Division
Judge: Arnold J
Representation: Romie Tager QC and Ian Clarke (instructed by Hughmans) for the first to third claimants. Michael Gadd (instructed by Harcus Sinclair) for the defendant.
Abstract: Probate - Grant. The Chancery Division held that a grant of letters of administration would be revoked in accordance with section 18B(1) of the Wills Act 1837 as a consequence of the deceased having entered into a civil partnership subsequent to execution of the will.
Keywords: Probate - Grant - Revocation of grant - Deceased having entered into civil partnership - Partner obtaining grant of probate on basis of new will - Original beneficiaries contesting will - Whether grant of probate should be revoked - Wills Act 1837, sections 18B(1), (3).
Summary: The judgment is available at: [2009] EWHC 3340 (Ch)
Section 18B of the Wills Act 1837, so far as material, provides: '(1) Subject to subsections (2) to (6), a will is revoked by the formation of a civil partnership between the testator and another person ... (3) If it appears from a will -- (a) that at the time it was made the testator was expecting to form a civil partnership with a particular person, and (b) that he intended that the will should not be revoked by the formation of the civil partnership, the will is not revoked by its formation.'
The deceased was born in, and originally domiciled in, New South Wales, Australia. At the time of his death, the deceased owned properties in London and Sydney and had substantial assets worldwide. In May 2002, the deceased made a will and appointed the first and second claimants as his executors and left his estate to, among others, the third claimant. By April or May 2008, the deceased was in a personal relationship with the defendant. The defendant contended that the deceased made a new will in August 2008 which: (i) revoked his previous will; (ii) directed that the will would not be revoked by marriage, civil partnership or adoption (cl 2); (iii) declared his domicile to be the United Kingdom; and (iv) bequeathed the entirety of his estate to the defendant as sole beneficiary. In October, the deceased and the defendant entered into a civil partnership. In November the deceased died unexpectedly. In February 2009, the defendant obtained a grant of letters of administration on the basis of a photocopy of the 2008 will, the original having been said to have been stolen from the deceased's flat shortly after his death. The claimants sought the revocation of the letters of administration and during the proceedings they applied for summary judgment.
The defendant contended that the 2008 will was not revoked by the civil partnership as clause 2 'was sufficient as a matter of law to prevent revocation pursuant to section 18B(3) of the Wills Act 1837'. The claimants sought summary judgment on that issue of law raised by the defendant. They accepted that, for the sole purpose of determining the defendant's submission, it should be assumed that: (i) the 2008 will was genuine; (ii) the deceased was domiciled in England and Wales at the time of his death; and (iii) at the time the 2008 will was entered into, the deceased was intending to enter into a civil partnership with the defendant. The defendant submitted that the issue was not suitable for summary determination, but that if the issue of law was decided in favour of the claimants, then the grant of letters of administration would have to be revoked.
The application would be allowed.
Section 18B(3) of the 1837 Act, required that it appear from the language of the will in question that the testator expected to form a civil partnership with a particular person and intended that the will should not be revoked by that marriage (see [11] of the judgment).
Clause 2 of the 2008 will did not satisfy the requirements of section 18B(3) as it was a mere statement that the 2008 will was intended to survive marriage, civil partnership or adoption and did not show that the deceased expected to form a civil partnership, let alone with a particular person. There was nothing in the 2008 will that connected clause 2 with the provision that the defendant was to be the sole beneficiary of the deceased's estate in its entirety (see [11] and [12] of the judgment).
Charlotte Hennessey Non-practising Solicitor.
Published date: 17/12/2009
Legislation
Child Maintenance and Other Payments Act 2008 (Commencement No 6) Order 2009
LNB News 27/11/2009 18
Published Date: 27 November 2009
Jurisdiction: England: Scotland; Wales
Enactment Citation: SI 2009/3072
Enabling Power: Child Maintenance and Other Payments Act 2008, section 62 (3)
Abstract: SI 2009/3072: Recovery of child support maintenance arrears from deceased's estate provisions in force 26 November 2010
Summary: Brings into force the following provisions of the Child Maintenance and Other Payments Act 2008:
section 31 (power to treat liability as satisfied) on 26 November 2009 for the purpose of making regulations and on 25 January 2010 for all other purposes; section 38 (recovery of arrears from deceased's estate) on 26 November 2010.
Finance Act 2009, Section 96 and Schedule 48 (Appointed Day, Savings and Consequential Amendments) Order 2009
LNB News 23/11/2009 35
Published date: 23 November 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment Citation: SI 2009/3054
Commencement date: 1 April 2010
Legislation Affected: 21 Acts amended
Enabling Power: Finance Act 2009, s 96(3)-(6)
Abstract: SI 2009/3054: HMRC given compliance powers in relation to eight taxes and duties from 1 April 2010
Summary: Appoints 1 April 2010 as the day on which the Finance Act 2009, section 96, schedule 48 amendments come into force. The enacted provisions apply the modernised powers granted to HMRC by the FA 2008, schedule 36 to eight additional taxes and duties administered by HMRC. The relevant taxes and duties are: insurance premium tax, inheritance tax, stamp duty land tax, stamp duty reserve tax, petroleum revenue tax, aggregates levy, climate change levy and landfill tax. The schedule 36 powers allow HMRC to carry out compliance checks into a person's tax position. Repeal a range of specialist information powers that are no longer required as a result of the extension of the schedule 36 powers to other taxes and duties and save provisions regarding appeals and penalties in relation to information notices issued before 1 April 2010.
Journals
LNB News 07/01/2010 1
Published Date: 7 January 2010
Author: Duncan Bailey
Journal Name: Trusts and Estates Law & Tax Journal
Journal Date: 1 December 2009
Journal Citation: Trusts and Estates Law & Tax Journal, December 2009, 4
Jurisdiction: England; Wales
Related Cases: Revenue and Customs Comrs v Trustees of the Nelson Dance Family [2009] EWHC 71 (CH), [2009] STC 802
Abstract: Trusts and Estates Law & Tax Journal, December 2009: How a recent case affects the operation of inheritance tax business property relief
Summary: Reviews Revenue and Customs Comrs v Trustees of the Nelson Dance Family. The importance of the decisions in the case cannot be overstated. Not only do they overturn current thinking about how inheritance tax business property relief operates, but also because the decision of the Special Commissioner that made this fundamental change has been upheld by the High Court.
LNB News 07/01/2010 4
Published Date: 7 January 2010
Author: Philip Simpson
Journal Name: Trusts and Estates Law & Tax Journal
Journal Date: 1 December 2009
Journal Citation: Trusts and Estates Law & Tax Journal, December 2009, 14
Jurisdiction: England; Wales
Related Cases: Todd (executors of MacArthur, decd) v Revenue and Customs Comrs [2008] STC (SCD) 1100, [2008] SWTI 1927
Abstract: Trusts and Estates Law & Tax Journal, December 2009: How a recent case clarifies the issues relating to the valuation on death of shares and other securities
Summary: Looks at the case of Todd (executors of MacArthur, decd) v Revenue and Customs Comrs. The case concerned the existence and valuation of options to convert into ordinary shares certain loans made to the deceased to close companies in which he had been a shareholder. Three were issues as to whether the conversion rights were sufficiently proved, doubts about whether they still existed and questions about the appropriate discounts for majority and minority shareholdings.
Replies to Queries: Minor to Majority
Replies to Queries: Minor to Majority
LNB News 06/01/2010 12
Published Date: 6 January 2010
Journal Name: Taxation
Journal Date: 7 January 2010
Journal Citation: Taxation, 7 January 2010, 24
Jurisdiction: England; Wales
Abstract: Taxation, Issue 4237: What is the tax position of a trust which appears to have both possible beneficiaries and immediate beneficiaries?
Summary: Asks about a trust established in 1994 in favour of the settlor's minor unmarried son which appears to have both possible beneficiaries and immediate beneficiaries. The replies consider whether this is a bare trust and if there is an immediate income entitlement. It may be possible to transfer rolled-up income without further tax charge.
Wives, Widows and Wicked Step-mothers: A Brief Examination of Spousal Entitlement on Intestacy
LNB News 29/12/2009 31
Published Date: 29 December 2009
Author: Elizabeth Cooke
Journal Name: Child and Family Law Quarterly
Journal Date: 1 December 2009
Journal Citation: [2009] CFLQ 423
Jurisdiction: England; Wales
Abstract: Child and Family Law Quarterly, December 2009: If some form of sharing between a surviving spouse and the deceased's children is still to be a feature of the intestacy rules, we need to target the people we really want to protect.
Summary: Examines the provision made for the surviving spouse of an intestate. Traces the development of the current law, and looks back to the Law Commission's proposal in 1989 that the surviving spouse of an intestate should in all cases take the whole estate. That recommendation was rejected. Asks if now that the Law Commission is examining this question afresh, whether the same recommendation should be made?
Matters of Trust
LNB News 11/12/2009 71
Published Date: 11 December 2009
Author: Malcolm Skinner
Journal Name: New Law Journal
Journal Date: 11 December 2009
Journal Citation: 159 NLJ 1732
Jurisdiction: England; Scotland; Northern Ireland; Wales
Related Legislation: Perpetuities and Accumulations Act 2009
Abstract: New Law Journal, 11 December 2009: How will new legislation affect accumulation rules?
Summary: Explains the Perpetuities and Accumulations Act 2009. While the Act may have received Royal Assent, it still has to be implemented which is not likely to happen until after the middle of 2010. In respect of accumulations the new rules are simply that the previous rule is abolished, save for charitable trusts, and that for charitable trusts there will be two available accumulation periods.
www.newlawjournal.co.uk: Matters of Trust
LNB News 11/12/2009 73
Published Date: 11 December 2009
Author: Michael Tringham
Journal Name: New Law Journal
Journal Date: 11 December 2009
Journal Citation: 159 NLJ 1728
Jurisdiction: England; Wales
Abstract: New Law Journal, 11 December 2009: How did the courts resolve a high value intestacy involving a Greek shipping tycoon?
Summary: Looks at a $57 million intestacy. The High Court was asked to decide on the outcome of a ten-year-old dispute between the deceased and his former son-in-law over $57,617,884.70 (including interest) plus legal costs of EUR 700,000. Mr Haji-Ioannou had contended that he had loaned money to Mr Frangos, who in turn maintained it was a gift.
www.newlawjournal.co.uk: No Easy Decision
Wills & Probate: A Battle of Wills
LNB News 30/11/2009 4
Published Date: 30 November 2009
Author: Paul Hewitt and Paola Fudakowska
Journal Name: New Law Journal
Journal Date: 27 November 2009
Journal Citation: 159 NLJ 1655
Jurisdiction: England; Scotland; Northern Ireland; Wales
Related Cases: Parkinson v Fawdon [2009] EWHC 1953 (Ch)
Abstract: New Law Journal, 27 November 2009: How do the courts treat rectification and statutory wills?
Summary: Examines some recent cases looking at rectification and statutory wills. In Parkinson v Fawdon, the deceased and H owned a farm jointly. They made mirror wills, under which each left his estate to the other, appointing him as sole executor; in the event that the other did not survive the testator, an alternative executor was named with substitute provisions in respect of residue.
Wills & Probate: 2010: The Year of the Will?
Wills & Probate 2010: The Year of the Will?
LNB News 30/11/2009 5
Published Date: 30 November 2009
Author: Michael Tringham
Journal Name: New Law Journal
Journal Date: 27 November 2009
Journal Citation: 159 NLJ 1656
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: New Law Journal, 27 November 2009: What is the future for inheritance law?
Summary: Looks at recent developments in inheritance law and predicts future changes. The Law Commission has set a legal cat among some pigeons with its consultation paper reviewing the intestacy laws. The declared intention is to "bring inheritance law up to date to meet the needs and expectations of modern families[...]".
LNB News 22/11/2009 34
Published Date: 22 November 2009
Author: Jonathan Herring
Journal Name: New Law Journal
Journal Date: 20 November 2009
Journal Citation: 159 NLJ 1607
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7394: Should cohabitants be treated the same as married couples under intestacy law?
Summary: Looks at proposed reform to the law on intestacy. The Law Commission's report emphasises the desirability of preparing a will and the dangers that can arise on relying on intestacy. Despite many efforts the level of will-making is not as high as might be hoped for and therefore all too often the law on intestacy must be relied upon.
Articles
Cohabitation Bill May Encourage Greater Familial Responsibility
LNB News 02/12/2009 32
Published Date: 2 December 2009
Jurisdiction: European Union; UK
Related Legislation: Children Act 1989; Public Interest Disclosure Act 1998
Related Digests: Cohabitation Law Now More Open to Debate LNB News 10/11/2009 49; Press Release: Royal Assent - 12 November 2009 LNB News 16/11/2009 11; Transparency in Family Courts - One year on LNB News 17/11/2009 27
Abstract: Controversial new rules have been proposed by the Law Commission to give cohabiting couples with children automatic inheritance rights. Selena Masson speaks to family specialists Baroness Deech and Mark Piercy of Piercy & Co about the proposals
Analysis: The Law Commission has proposed giving unmarried couples who live together for two years or more automatic rights to half their partner's estate if they die.
Under current laws, couples who are unmarried or not in a civil partnership have no such rights if one dies unexpectedly. There are also proposals for cohabiting partners who break up to pay divorce-style maintenance if they have children or have been living together for two years.
Pressure for a cohabitation law has been mounting in recent years. Supporters say millions of women living in relationships not governed by law risk losing everything if they break up with their partner. Shadow justice minister Henry Bellingham, who is heading a review of family law for the Conservative party, has announced the Conservatives would back the divisive proposals if they won the next election.
Legal commentators are split over the proposals. Family lawyer Baroness Deech is a professor of law at Gresham College in London, where she gives lectures on family relationships and the law. She says the rules “retard the emancipation of women" and degrade relationships: "The proposals are a vote-loser for the Tories because the response to my views has been overwhelmingly favourable and half of the two million cohabitants will not want to be legally-bound. The Tory front bench in the Lords opposed Lord Lester's Cohabitation Bill, so the party obviously has diverse views. This subject is a moral issue and not a good one to tangle with."
Family law specialist Mark Piercy of London law firm Piercy & Co welcomed the news: "I am glad to see...legislation to give rights to cohabitants with children. At present, unmarried mothers with children are often left financially insecure and vulnerable when their relationships break down."
Piercy adds: "Unless they can prove they have a pre-existing interest in property, they have no right to make claim for capital provision, eg for a home. They have no right to claim maintenance for themselves where their earning capacity is reduced by childcare responsibilities. Apart from seeking child support through C-MEC (formerly the CSA), they are limited to making claims under the Children Act 1989, schedule 1, for financial provision for the children."
According to Piercy children can suffer hardship when the person responsible for their care is unable to obtain proper financial provision from the other parent. He feels legislation would not undermine the institution of marriage. "It might encourage a greater sense of responsibility in those thinking of having children outside marriage. I do not think rights to make financial claims should be extended to former cohabitants where there are no children involved," he concludes.
Wills Cases Likely to Become More Frequent
LNB News 27/11/2009 38
Published Date: 27 November 2009
Jurisdiction: England & Wales; European Union
Related Cases: Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd; Old & Campbell Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, [1981] 1 All ER 897; Thorner v Major and others [2009] UKHL 18, [2009] All ER (D) 257 (Mar)
Related Digests: Daughter Wins Over RSPCA in Battle for Will LNB News 09/10/2009 56
Abstract: In Thorner v Major, it was ruled the will of a farmer's wife, leaving the family's £2 million farm to the RSPCA, was invalid. Kate Beaumont talks to Mark Keenan of Mishcon de Reya, who acted for the daughter, about how the ruling may lead to an increase in wills challenges
Analysis: Dr Christine Gill finally won her three-year legal challenge against the RSPCA over her late mother's 1993 will, which had left their 287-acre farm to the animal charity. The case attracted much media attention but what of its significance in legal terms?
Mark Keenan, partner (Contentious Trusts & Probate Group) at Mishcon de Reya Solicitors, acted for Dr Christine Gill. He points out: "The case attracted significant publicity not so much because of its legal significance but more as a result of the rather particular set of facts. That publicity has largely focused on Christine's successful claim to overturn the will. However, of equal significance is Christine succeeded on her alternative claim under the doctrine of proprietary estoppel. This is one of the first reported decisions following the House of Lords decision in Thorner v Major and others [2009] All ER (D) 257 (Mar)."
He explains: "Whilst undue influence is one of the recognised grounds for overturning a will it is difficult to establish because of the need to establish the testator was coerced into making a will he or she does not want to make. In this case the evidence led the court to conclude the will did not represent Mrs Gill's wishes. We argued (unsuccessfully) in the alternative that Mrs Gill did not know or understand the contents of the will. Christine also succeeded in her alternative claim in proprietary estoppel. In accordance with the line of authorities recently considered in Thorner v Major, the question for the court was whether in all the circumstances of the case it was unconscionable for Mrs Gill not to have left the farm to Christine by her will (assuming the court had found the will to have been valid)."
Keenan notes: "In Taylors Fashions Limited v Liverpool Victoria Trustees Company Limited [1982] QB 133, Oliver J observed proprietary estoppel is directed at ascertaining whether, in particular circumstances, it would be unconscionable for a party to be permitted to deny that which knowingly or unknowingly they have allowed or encouraged another to assume to their detriment."
He goes on: "The court accepted there was a close and loving relationship which existed between Christine and each of her parents; both Mrs Gill, and to a lesser extent Mr Gill, encouraged Christine's expectation of inheriting the farm; Christine accordingly expended substantial time and labour on the family farm, as well as looking after her parents, on the basis of these assurances. The court found that, even if it had held the will was valid, Christine should receive the family farm and the farming business as it would have been unconscionable for her not to."
What does the ruling mean for others in a similar position? Keenan responds: "The RSPCA has suggested it was legally obliged (under charitable law) to seek the funds and it is concerned about the implications of the decision for other charities. First, charities are like any other commercial litigant and can decide whether or not to defend a claim on the basis of the strength of the claim it faces. There is no principle of law which forces a charity to defend a claim another reasonable litigant would not defend. All cases will of course turn on their own facts. Charities need to ensure they use every opportunity available to them to satisfy themselves that a will such as this--where the only daughter has been written out of the will--truly represents the testator's wishes."
He advises: "Claims are not meritorious simply because a disappointed beneficiary feels it was unfair he or she did not receive anything under a will; there must be grounds for challenge which can be supported by evidence. Charities who receive substantial bequests should look carefully at the will and would be wise not to take it at face value. Charities should also consider whether it would be appropriate to make 'Re Snowden' ex gratia payments, which can be made where the testator made a solemn though not legally binding promise to someone else and that promise was not fulfilled by the will as a way of compromise, to avoid litigation if possible."
Asking Keenan whether he thinks lawyers and the courts can expect more contested legacy cases in the wake of the Gill ruling, he says: "There has been a marked increase in those types of claims over recent years, largely as a result of the complex family arrangements, an increasingly elderly population and media coverage of what are perceived as interesting cases. Undoubtedly, the level of media interest the case has attracted will have led to a greater awareness of the right to challenge a will and so we can expect more cases to come through. Having said that, the reporting of the case has not been entirely accurate and so it may well encourage disappointed beneficiaries to challenge wills where there are not sufficient grounds to do so."
In light of this case what specific areas of wills and probate law should solicitors be brushing up on? According to Keenan, "practitioners drawing up wills for clients must be alert to possible challenges, particularly where there is an unusual gift or family members are specifically excluded. Whilst traditionally a husband and wife have instructed one solicitor to prepare their wills, good practice would be to treat them as separate clients. They should be seen separately to ensure each client's own wishes are written in their will. Solicitors should satisfy themselves the client is giving his or her instructions freely and without undue pressure. In addition, solicitors should make a full attendance note at the time the will is made and, if there is a concern about a possible challenge, keep a copy of the note with the original will and ensure the file is preserved."
Finally, what does the future holds for this particular area of law? Keenan asserts that it is "the right of testamentary freedom in England and Wales (rather than the European forced heirship method of succession), coupled with an ageing and increasingly vulnerable population, brings with it the inevitability of more challenges. That is not necessarily a bad thing when the objective is to ensure the will truly represents the testator's last wishes."
The RSPCA intends to appeal.
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