Charles Holbech

October 10, 2016 • Trusts • 2023

White v Jones liability for negligent advice

This article was published in October 2016 in Trusts & Trustees. For copyright reasons this article must be read on the publisher’s website. Links are included below which will open a new window.

White v Jones liability for negligent advice

Charles Holbech

Trusts & Trustees 2016 22 (8): 874-879

doi: 10.1093/tandt/ttw120

You can download the original article in PDF format by clicking this link.

Abstract:

http://tandt.oxfordjournals.org/cgi/content/abstract/ttw120?
ijkey=Ei8nVzTZDjQduzv&keytype=ref

Full text:

http://tandt.oxfordjournals.org/cgi/content/full/ttw120?
ijkey=Ei8nVzTZDjQduzv&keytype=ref
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October 10, 2016 • Probate • 2414

Bromley v Breslin [2015] exposes the possible cost consequences of an application under CPR 57.7(5) to challenge the validity of a will.
NOTE: This article was published in October 2016 and reflects the law as it stands on the date of publication and not at any later date.

You can download the original article in PDF format by clicking this link.

There have been two recent reported cases on CPR 57.7(5)which applies in probate claims where the validity of a will is called into question. That rule provides that:

(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross examine the witnesses who attested the will.

(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

Bromley v Breslin: facts

Marjorie Beck died, aged 85, on 20 May 2013 (the testatrix). By her will, dated 19 April 2012, the testatrix left her residuary estate to her nephew, Stephen. She left nothing to Stephen’s two sisters, Anne and Linda. If the will were invalid, Stephen, Anne and Linda would be entitled, on an intestacy, to a third of the residuary estate each. The estate mainly comprised a house, worth between £300,000 and £350,000.

Neither Anne, nor Linda, accepted that the will was valid. They had obtained a statement from one of the attesting witnesses (Robert) given to a retired police officer, that neither the testatrix, nor the other witness (Tony), was present when Robert signed the will. If this evidence were accepted, the will would be invalid for non compliance with s9 of the Wills Act 1837 in that:
- the signature of the testatrix was not made or acknowledged by her in the presence of two or more witnesses present at the same time, as Robert was not present when the testatrix signed the will (s9(c)); and
- one at least of the witnesses (Robert) did not attest and sign the will in the presence of the testatrix (s9(d)).
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May 31, 2016 • Rectification • 3095

Proprietary Estoppel: Expectation or Detriment

NOTE: This article was published in May 2016 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

Proprietary estoppel claims can give rise to a particular issue: should the measure of the claimant’s relief be compensation for detriment or, more generously, enforcement of the relevant promise or assurance?

Detriment not expectation

The court’s primary task is to compensate the claimant for detriment incurred in reliance on an assurance. It is not to give effect to the assurance. The task is not simply, necessarily, or even in principle, to satisfy the claimant’s expectations Jennings v Rice [2002] EWCA Civ 159, at [49]-[51].

Proportionality

The courts have also emphasised that the award should not be disproportionate to the detriment suffered. A claimant’s expectations should be satisfied in a more limited way if they are “uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered” Jennings v Rice, at para. 50.

Recent trend toward enforcement of expectation

There has been a recent trend to award relief which gives effect to the claimant’s expectations, and which is not limited to detriment Suggitt v Suggitt [2011] 2 FLR 875; Lothian v Dixon, Westlaw, 28 Nov 2014; Davies v Davies [2015] EWHC 1384.
The purpose of this article is to attempt to reconcile these authorities with a detriment-based approach, in order to show that detriment remains the key concept.
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January 16, 2016 • Inheritance Tax • 2824

Landed Estates: APR/BPR
NOTE: This article was published in January 2016 and reflects the law as it stands on the date of publication and not at any later date.

You can download the original presentation in PDF format by clicking this link.

BPR and APR
- APR has priority: IHTA 1984, s. 114
  - agricultural value of agricultural property
  - agricultural land
  - cottages and farmhouses of character appropriate to property
  - occupied for purposes of agriculture
- BPR
  - relevant business property
  - interest in a business/unquoted shares in company
  - owning agricultural property
  - assets used for purposes of business
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October 22, 2015 • Probate, Wills • 2325

WILLS AND PROBATE CASE LAW UPDATE, Oct. 2015
NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Fusion Legal Wills & Probate seminar presentation.

To download the original slideshow of this presentation please click this link.

TESTAMENTARY CAPACITY
- Test in Banks v Goodfellow (1870) LR 5 QB 549, at 565
- Test in Mental Capacity Act 2005
  - Presumption of capacity
- Re Walker [2015] WTLR 493
  - No presumption of capacity
  - Retrospective assessment of capacity
  - Legal burden on claimant
CAPACITY TO UNDERSTAND
- Simons v Byford [2014] EWCA Civ 280
- Capacity to understand
  - Not actual understanding
  - Nor test of memory
- No need to understand collateral consequences
- Brennan v Prior [2013] EWHC 2867 Ch
  - No need to understand every consequence of legal effect
- Incapable if cannot recall beneficiaries: Williams v Wilmot [2012] EWHC 2211
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October 10, 2015 • Inheritance Tax • 1860

INHERITANCE TAX – PLANNING TIPS, Oct 2015
NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Lexis webinar presentation.

You can download the original presentation in PDF format by clicking this link.

GIFTS
- PETs
- Annual exemption and small gifts
- Spouse exemption
  - Equalising estates
- No intention to confer gratuitous benefit
- Dispositions for maintenance of family
- Gifts in consideration of marriage
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June 11, 2015 • Trusts • 3129

Duties and liabilities of trustees: Lessons from recent cases
NOTE: This article was published in June 2015 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

There have been a number of recent cases which provide useful guidance in considering the scope of trustees’ duties when faced with decisions as to whether or not to sell or retain land, or to incur expenditure on repairs, or to take legal action.

Duties of trustees: the law

In Brudenell-Bruce v Moore [2014] EWHC 3679 (Ch), paras. 88-95 Newey J set out a number of basic principles, relating to the duties of trustees, with particular reference to land:
- It is incumbent on trustees to exercise their administrative powers in the interests of the trust’s beneficiaries. The paramount duty of the trustees is generally to provide the greatest financial benefits for the present and future beneficiaries.
- A power of investment must be exercised so as to yield the best return for the beneficiaries, judged in relation to the risks of the investment in question.
- Trustees may also be obliged to seek to generate income from land comprised in the trust.
- When exercising the powers of an absolute owner of land, a trustee must exercise the statutory duty of care under section 1 of the Trustee Act 2000, i.e. to exercise such care and skill as is reasonable in the circumstances, having regard in particular—
  1. to any special knowledge or experience that he has or holds himself out as having, and
  2. if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession.
- The statutory duty of care applies to the manner in which a power is exercised, not to the decision whether to exercise the power.
- The common law duty of care applies to decisions whether or not to exercise a power, e.g. of repair. The common law duty requires a trustee to exercise the same standard of diligence and care as an ordinary prudent man of business would exercise in the management of his own affairs.
- There is no difference of significance between the statutory and common law duties of care.
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January 6, 2015 • Wills • 2190

To Litigate or not to Litigate in Claims Involving Wills: Practical Points for Charities

NOTE: This article was published in January 2015 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

My purpose in this article is to highlight the sort of issues facing charities in deciding whether or not to litigate over a legacy, or residuary gift, contained in a Will. In particular, I shall be looking at a number of cases where charities have faced such difficult decisions, some of which they have got wrong.

In 2011 the 7 main animal charities received nearly £170 million in legacies. £54 million was bequeathed to the RSPCA alone. Legacy income is a major benefit for many charities, which they are rightly concerned to protect.

Assume that a charity is left a substantial legacy, or residuary gift, in a Will, which is challenged by the testator’s children on the grounds that the testator lacked testamentary capacity, or did not know and approve of the contents of the Will. There could also be a claim in proprietary estoppel, alleging that the testator promised to make a gift to the claimant, who relied upon that promise to his/her detriment.

Alternatively, the charity (which is a beneficiary under an earlier Will) may want to challenge a later Will, made by a testator, who had questionable testamentary capacity, or where the Will was executed in circumstances which give rise to a suspicion that it did not represent the testator’s true wishes.

Another common scenario is that the Will is challenged by a spouse, child, cohabitee, or dependant, under The Inheritance (Provision for Family and Dependants) Act 1975.

There may be an issue as to the construction of the words used in the Will. On one construction the charity would receive far more than on an alternative construction favouring other beneficiaries; or there may be a claim to rectify the Will, where it is alleged that the Will contained a mistake in conferring a benefit, or too much benefit, on a charity.

Charities are, therefore, commonly faced with decisions as to whether or not to litigate in order to protect their legacy income. Continue Reading
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October 2, 2013 • Probate, Wills • 5642

Professional Negligence and the Wills and Probate Practitioner
NOTE: This article was published in October 2013 and reflects the law as it stands on the date of publication and not at any later date.

Negligence where solicitor prepares an invalid Will

Assume the following scenario:
1. A testator executes a Will (“Will 2”) revoking a previous Will (“Will 1”).
2. Will 2 is set aside in a probate claim, brought by the beneficiaries of Will 1, on the grounds of lack of testamentary capacity, want of knowledge and approval and/or undue influence.
3. The beneficiaries of Will 1 obtain an order for costs in the probate action against the defendant beneficiaries/executors of Will 2, but the order cannot be enforced (e.g. because the defendants were publicly funded).
4. The personal representatives or beneficiaries of Will 1 then bring negligence proceedings against the solicitor who prepared Will 2 alleging that the solicitor was negligent in preparing Will 2 for a testator:
  1. whose lack of capacity would have been revealed if sensible precautions had been taken (such as following the golden rule); and/or
  2. where it ought to have been apparent that the testator did not know and approve of the Will, e.g. because the solicitor took instructions from a third party; and/or
  3. where the solicitor failed to take due precautions against undue influence, e.g. by taking instructions in the presence of a beneficiary who is subsequently found to have exercised undue influence. Continue Reading
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July 19, 2013 • Probate, Wills • 4405

Probate Claims: Suspicious Circumstances

NOTE: This article was published in July 2013 and reflects the law as it stands on the date of publication and not at any later date.

Suspicious circumstances

An elderly testator executed a new Will in favour of one family member or someone with whom the testator has had substantial contact in recent years, typically a neighbour, carer or domestic help. The new Will represents a significant departure from the terms of previous Wills, which had divided the estate equally between the testator’s children or nearest relatives. The terms of the Will are, therefore, surprising or suspicious.

The testator was in failing health, perhaps in the early stages of dementia, or suffering from the result of a recent bereavement. The golden rule was not observed. A doctor did not certify the testator’s capacity before the Will was executed.

The testator was vulnerable and susceptible to influence. The beneficiary under the Will was in the position to influence the testator, and may have been involved in the preparation or execution of the Will. The beneficiary has a dominating personality.

There is, however, no direct evidence that the beneficiary had sought to coerce the testator into execute the Will. However, that is the strong suspicion of the beneficiaries under the testator’s previous Will.

There may be some doubt as to whether the testator was actually aware of the contents of the Will, and approved the Will as representing his or her wishes. A solicitor may not have been involved; or, if a solicitor was involved, the solicitor may have failed to take proper precautions to ensure that the contents of the Will were brought home to, and approved by, the testator.

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Abstract:

Full text:

NOTE: This article was published in October 2016 and reflects the law as it stands on the date of publication and not at any later date.

Bromley v Breslin: facts

NOTE: This article was published in May 2016 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

Detriment not expectation

Proportionality

Recent trend toward enforcement of expectation

NOTE: This article was published in January 2016 and reflects the law as it stands on the date of publication and not at any later date.

BPR and APR

NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Fusion Legal Wills & Probate seminar presentation.

TESTAMENTARY CAPACITY

CAPACITY TO UNDERSTAND

NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Lexis webinar presentation.

GIFTS

NOTE: This article was published in June 2015 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

Duties of trustees: the law

NOTE: This article was published in January 2015 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

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