Private client section



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Issue 44 – March 2010 

 
Welcome to the relaunched Probate Section e-alert.

We will keep you up to date with news from the Section and the sector, and case and legislation updates from Law Society's Library Online service, with links to more information on the BAILII and OPSI websites. Full case commentaries and copies of legislation can also be requested from the fast and low-cost LawDocs service.

You can find out what members think about the issues of the day, through the results of the member poll from the last e-alert (to answer our current poll, click on the box to the right and select your answer on our homepage). Links to interesting topics on the Section’s website discussion forum will also help keep you in touch with other members, as well as ask and answer technical questions, as will links to frequently asked questions from the Law Society's Practice Advice Service. This free, confidential service is available by phone and email, and provides answers to any questions solicitors may have, on any field.

We are always happy to hear from Section members. If you have any feedback on the new design of the e-alerts or any other ideas or thoughts, please do let us know.

Patricia Wass, Probate Section chair



Case Analysis - from Lesley King

The Hastings-Bass jurisdiction which allows trustees to apply to court to set aside a decision made on a mistaken basis has attracted some judicial concern that it may have gone too far. However, in Pitt and another v Holt and another [EWHC] 236 (Ch) the High Court extended the jurisdiction to a decision made by a receiver. This allowed it to set aside a discretionary trust created by a receiver for damages because she had failed to consider the IHT implications, thus avoiding a substantial liability for IHT. The receiver was unsuccessful on the alternative application to set the trust aside on the basis of a mistake (as had been done in Ogden v Griffiths Settlement [2009] Ch 162).  There were two reasons. (1) There was not a mistake at all. The receiver had simply never considered the possible impact of IHT. (2) If there was a mistake, it was not the sort of mistake that would justify equitable intervention. The mistake was not as to the effect of the transaction, merely as to its consequences.

The insistence on the ‘right’ kind of mistake is rather disappointing as the distinction between the two types of mistake is not easy to draw and there have been cases recently which have applied a different test, namely “Is the mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him?”.

Anyone advising on an Inheritance (Provision for Family and Dependants) Act claim by an adult child should have a look at H v Mitson [2009] EWHC 3114. A mother died aged 70 and left her whole estate (£486,000 net) to charity, disinheriting her daughter and five grandchildren. The daughter was awarded £50,000 by the district judge and appealed on the basis that this was insufficient. The charities then successfully cross appealed on the basis that she should have had nothing.  The daughter was in a very poor financial circumstance but the test is, “was the provision reasonable?” and on the facts, it was. The relevant factors were that there had been a long estrangement and the daughter had been well aware that her mother intended to leave her nothing. It was not a case of disappointed expectations.

In R (on the application of Davies, James & Gaines-Cooper) v HM Revenue & Customs [210] EWCA Civ Robert Gaines-Cooper and two other taxpayers were unsuccessful in their application for judicial review. They had argued that HMRC had misconstrued its own guidance as issued in the first version of IR20, a booklet designed to provide what general guidance in relation to the residence and ordinary residence of individuals.

However, the case has a crumb of comfort for taxpayers in that it confirms that taxpayers can legitimately rely on statements of policy made by HMRC: “the Revenue could be bound, through the medium of judicial review, to honour statements made to the public as to how it would treat a taxpayer in particular, defined circumstances”.

Lesley King is private practice head at the College of Law


News



Cases

Collated by the Law Society Library, with all cases linked in full to BAILII


  • Angus v Emmott [2010] EWHC 154 (Ch) 3 February 2010 (also known as Re Steel (deceased), [2010] All ER (D) 70 (Not on BAILII)
    Deceased was convicted of murder and served a number of years in prison before his conviction was quashed by the Court of Appeal. He was entitled to compensation, but did not receive the full amount due before he died. The executors were unable to agree on the contents of the claim for compensation and asked the court to intervene. 
  • Booth v Booth and Others [2010] EWCA Civ 27 (05 February 2010)A now deceased husband had misappropriated part of his deceased wife’s estate. Accordingly, the other children of the deceased couple had a claim against the principle beneficiary of the husband’s will.
  • H v Mitson [2009] EWHC 3114 (Fam) 1 December 2009) (Not on BAILII)
    Deceased was convicted of murder and served a number of years in prison before his conviction was quashed by the Court of Appeal. He was entitled to compensation, but did not receive the full amount due before he died. The executors were unable to agree on the contents of the claim for compensation and asked the court to intervene.
  • Harris v Beneficiaries of the Estate of Margaret Alice Cooper (decd) [2010] All ER (D) 64 (Jan) ( Ch) (14 January 2010) (Not on BAILII or Westlaw)
    Testatrix left her residuary estate to be divided equally between her ‘surviving relatives' by a home-made will. The claimant applied for a declaration as to who were the appropriate beneficiaries.
  • Kershaw v Michlethwaite, 12 February 2010, Ch (not on BAILII, only brief summary on Westlaw)
    The court was asked to remove some or all of the executors of a will on the grounds that they had failed to correctly value the estate, failed to keep the applicant (one of the beneficiaries) informed, and there had been a breakdown in relations between the parties.
  • M, ITW v Z and Others [2009] EWHC 2525 (Fam) (Court of Protection,12 October 2009), LSG 28 January 2010, 13
    The Mental Capacity Act 2005 has changed the approach to statutory wills made on behalf of those who lacked mental capacity. Case authorities for the 1959 and 1983 acts could not used for will made under the 2005 Mental Capacity Act. The judge gave guidelines on points to be considered when interpreting the vulnerable person’s wishes.
  • Macdonald v Frost [2009] EWHC 2276 (Ch) 5 October 2009
    The daughters of the testator’s first marriage brought a claim for proprietary estoppel based on a property transaction involving their father and the family while he still lived.

NB. This is intended for information only, and does not represent legal advice on which reliance should be placed.



FAQs

  • Funding for elderly client wills
    I have taken instructions from an elderly lady in relation to making a will. My client has asked if she is entitled to any public funding. What is the position?
 
Forum

 
Previous Member Polls

On the topic of the UK’s opt-out of EU regulation, we asked you: ‘Do you think the government was right to opt out of the proposed EU regulation on succession and wills?’



  • Yes – it would complicate UK inheritance law        74 %
  • Yes – for another reason                                    13 %
  • No                                                                    13 %

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