AN OVERVIEW OF CONTENTIOUS TRUST AND PROBATE CASE LAW
MARCH 2015 TO FEBRUARY 2016
1. CONSTRUCTION, INTERPRETATION AND RECTIFICATION OF WILLS
1.1. The importance of intention
Lucus v Eagle [2015] EWHC 476 (Ch)
The claimants were the children of Mr Lucas and his first wife who died in the late
1970s. The defendants were the daughters of Mr Lucas’ second wife, who he married
in 1982. They were not his children. Mrs Lucas, who predeceased Mr Lucas, left her
estate to her two daughters, the defendants.
Clause 4 of Mr Lucas’ Will started with the words: “If my said wife June Rose Lucas
shall survive me...”. It then went on to provide that 37 Linden Way, the matrimonial
home, should be held by the trustees for June for her life and then pass to his
children. Clause 5 provided for the residue of Mr Lucas’ estate to pass to his wife, or
her daughters if she predeceased him.
On the basis that clause 4 was entirely governed by the opening words “if my said
wife June Rose Lucas shall survive me” and this did not happen, then the clause did
not apply and the property fell into the residue. Pursuant to clause 5, this meant that
the whole of Mr Lucas’ estate (property and all) was due to pass to his wife’s
daughters, with nothing passing to Mr Lucas’ own children.
The judge considered the solicitors’ file and found it clear that if clause 4 bore the
meaning described, it was not in accordance with Mr Lucas’ intention. All parties
therefore agreed that clause 4 should be rectified with the result that the property
should pass to Mr Lucas' children.
This left the main issue of the case to be the intention behind the residuary gift. Did
Mr Lucas intend to leave the residue of his estate to his second wife’s children, or to
his own children? The judge held that if the evidence showed that Mr Lucas’
relationship with his step-children meant that he could not have intended to pass the
residue of his estate to them, then that would support the claimants’ case for
rectification of the residuary gift in the Will as well. However, the judge found that
the Will was executed with care, initialled on every page, indeed on the page with
clause 5 Mr Lucas’s initials were very close to the names (in bold) of the defendants.
They were hard to miss or mistake. Moreover it was noted that Mr Lucas was a
meticulous man. The judge did not find that Mr Lucas intended the residue of his
estate to pass to his children as well as his property, and therefore the application to
rectify that aspect of the Will failed.
Gledhill v Arnold [2015] EWHC 2939 (Ch)
Clause 3 of the deceased’s Will provided that that the defendant (the deceased’s
sister-in-law) was to have a right of occupancy of the house they owned together as
tenants in common, rent-free, as long as she paid for its maintenance. Upon the
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
defendant's death, “the House Fund” was to be held upon trust in respect of the
deceased's "Residuary Estate", which was undefined.
Clause 5 dealt with the deceased's "Residuary Fund", providing for an absolute gift to
the defendant or, if she predeceased the deceased, the residue was to pass to Mr and
Mrs Gledhill and Mr Gledhill’s two brothers in equal shares absolutely.
Mr and Mrs Gledhill’s case was that a literal reading of clause 5 rendered clause 3
otiose and that the deceased had intended that, after the defendant's lifetime, the
house would pass to themselves and to Mr Gledhill’s brothers.
In an earlier Will made by the deceased in 2006 there was the same provision as to
the House Fund, but after the defendant's death, the trustees were to hold the House
Fund for Mr Gledhill and his two brothers in equal shares absolutely, rather than
passing into the residue. The residue was still given to the defendant absolutely. In
other words, Mr Gledhill and his brothers would get the house (once the defendant
died) and the defendant would get a life interest in the house and everything else.
The deceased's solicitor admitted an error in preparing the 2011 Will. He said that
although he could not remember the deceased’s specific instructions, if it had been
the deceased’s intention for his half share in the property to pass absolutely to the
defendant there would have been no need for the House Fund clause (clause 3).
Therefore he did not think this is what the deceased intended. The deceased wanted
the house to be held on life interest trust and for it to pass to Mr and Mrs Gledhill and
Mr Gledhill’s brothers on the defendant’s death.
Construction
Mr and Mrs Gledhill argued that “Residuary Estate” should be construed as meaning
the same thing as “Residuary Fund”. The judge disagreed. She said there was
nothing ambiguous about the wording and doubted whether the court could construe
the Will as suggested.
Rectification
The judge held that following Marley v Rawlings the failure of the solicitor to
correctly record the deceased’s instructions in the Will (his intention being clear) was
a clerical error and the Will should be rectified. It is arguable if the definition of
clerical error was extended that far in Marley v Rawlings. This appears to be a case
of solicitor negligence rather than clerical error.
Guthrie v Morel and others [2015] EWHC 2172 (Ch)
The deceased made a bequest in his Will of a property "87 Loma del Rey" but he had
only ever owned 81 Loma del Rey. The issue was whether the Will should be
interpreted to mean 81 rather than 87 Loma del Rey.
The Will took the form of a letter from the deceased to his solicitor, detailing his
assets and who he wished them to pass to. It was signed by him and two witnesses.
This letter was admitted to probate.
The judge held that the court's approach to construing Wills should be the same as
interpreting contracts and other documents. The court should find the intention of
the party by identifying the meaning of relevant words in the light of their natural
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
and ordinary meaning; the overall purpose of the document; any other provisions of
the document; facts known or assumed by the parties at the time of execution; and
common sense. The judge held that the deceased intended for the bequest to be of
81 Loma del Rey. If he had not intended this, he would have intended to die partially
intestate (because 81 Loma del Rey was omitted from the letter), which was highly
unlikely to have been the deceased’s intention. This case indicates that the court
may well construe or interpret a Will in such a way to avoid rectification proceedings
where there has been an obvious mistake.
1.2. An activity involving special expertise cannot be a clerical error
Reading v Reading [2015] EWHC 946 (Ch)
Mr Reading made a Will leaving his nil rate band on discretionary trust for his wife and
his “issue”. The question arose as to whether “issue” included only Mr Reading’s
natural children and their descendants, or whether it also included his step-children
and their descendants.
The Will trustees brought the claim on the grounds of construction or, in the
alternative, rectification.
Construction
The Will trustees argued that the Will should be construed so that issue included stepchildren as well as natural children. The Judge held that the ordinary and natural
meaning of the word “issue” would not include step-children. However, she had to
consider the context of the words used in relation to the Will as a whole. In this
case, one of the step-children was appointed as executor and trustee of the Will trust
and they were also default beneficiaries of residue along with the deceased’s natural
children. In addition, the testator was as close to his step-children (if not closer to
them) as he was to his natural children. The Judge also took into account the
testator’s letter of wishes which made it clear that he intended his step-children to
be beneficiaries of the nil rate band discretionary trust. The Judge therefore
concluded that the Will should be construed as though issue included step-children as
well as his natural children.
Rectification
The more interesting part of the judgment concerns the alternative claim for
rectification. In the end the trustees did not need to rely on this, which was a good
thing as the Judge held that the claim would have failed. Although the first two limbs
of the test for rectification were satisfied (i.e. the judge could ascertain the
testator’s intention and the Will did not reflect that intention), the Judge was not
satisfied that the failure of the Will to reflect the testator’s intention was the result
of a clerical error.
The word “issue” was included in the precedent used by the Will draftsman. The
judge held that the selection of legal terms by the Will draftsman was an activity
involving special expertise and therefore it did not fall within the definition of
clerical error, regardless of whether or not the term was included by the precedent
used by the draftsman. The judge said it was not the same as a draftsman mistakenly
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
leaving something in the Will which he ought to have taken out. Instead, it related to
expertise in the choice of the necessary wording. Accordingly, the judge would have
refused to rectify the Will.
1.3. Imprecise drafting of a will, in particular, inaccurate naming of charities
Re Harte (Deceased) [2015] EWHC 2351 (Ch)
Mrs Harte’s Will provided for all her “personal property” to pass to her husband
provided that he survived her and if he did not (which was the case) to ten named
individuals and charities. The executors sought confirmation that:
1.3.1. The “personal property” included the deceased’s real property ie her house.
There was no reference to real property in the Will and the residuary estate
was not defined. The judge held that it was inherently unlikely that Mrs
Harte, who had gone to the lengths of instructing a solicitor to whom she
gave instructions to dispose of her assets, would deliberately and
purposefully omit dealing with probably her most valuable asset – the family
home - and thus that the reference to “personal property” should be
construed to include her home.
1.3.2. The 10 gifts were of a one-tenth share. This was not clear as the Will
referred sometimes to one-tenth and sometimes to one part. Ordinarily, the
use of different terms would indicate that the meaning conveyed by them
should differ. In this case however the judge held that the correct
interpretation was that one part equalled one-tenth as there was no
indication as to what may have been meant by one part.
1.3.3. The gift to Newbury Hospital should be construed as a gift to West Berkshire
Community Hospital. The judge agreed that it should as the West Berkshire
Community Hospital is at the address given for Newbury Hospital in the Will
and is the colloquial name for that hospital.
1.3.4. The gift to “West Berkshire Ambulance Hospital” should pass to Thames
Valley and Chiltern Air Ambulance. The judge agreed. Clearly the testator
did not intend a gift to a hospital for ambulances. On the basis that in the
notes in the instructions for the Will there was reference to “air rescue ..
West Berks area” and there was no other relevant gift in the Will, the judge
was satisfied that the testatrix intended to make a gift to the air ambulance
service covering the West Berkshire area.
1.3.5. Where a name of a charity is written incorrectly the gift should go to the
charity with the charity number given in the Will. Correct numbers were
given for some charities but incorrect names. The judge agreed that the
charities were clearly misnamed and the gifts should go to the charities as
per the charity numbers given, so Macmillan Cancer Support (Macmillan
Cancer Fund in the Will); Guide Dogs for the Blind Association (Guide Dogs for
the Blind in the Will) and Hearing Dogs for the Deaf (Guide Dogs for the Deaf
in the Will).
The solicitors who drafted the Will, Charles Holle Solicitors, were joined to the
proceedings for the purpose of costs.
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
2. DUE EXECUTION
The strong presumption of due execution remains in place. Evidence of one
witness to the Will may not be enough to overturn it.
McCabe v McCabe [2015] EWHC 1591 (Ch)
Mrs McCabe made her last Will in hospital. Mr Feakin, a witness to the Will, said that
he signed the Will, but only in the presence of Dr Ardron (a specialist in elderly
medicine) and Mrs McCabe’s son, not Mrs McCabe. Dr Ardron said that he and Mr
Feakin were both present when Mrs McCabe signed her Will. The judge preferred the
evidence of Dr Ardron and the son, which supported what is set out in the attestation
clause. The judge found Mr Feakin confused, unreliable and mistaken. (He did not
know any of the other parties. Mr Feakin was visiting his wife in hospital and was
called to witness the Will effectively as he was passing on by.) Mr Feakin’s evidence
was inadequate to displace the strong presumption in favour of due execution.
Sattar v Salam [2015] EWHC 1835 (Ch)
The claimant sought to set aside his sister’s Will on several grounds, one of which was
that her signature was not attested by at least one of the witnesses, raising the
contention that the (purported) witnesses signed after the testatrix had died. The
claim failed due to the principle that the presumption of due execution will prevail
unless there is the strongest evidence to rebut that. The judge declared much of the
evidence “highly unsatisfactory” (more than one witness produced contradictory
statements).
Re Whelan deceased, RNID and Others v Turner [2015] EWHC 3301 (Ch)
The deceased signed a Will leaving her estate to her friend, Mrs Turner. There was a
question mark over whether the Will was correctly executed.
The witnesses said that they did not see Mrs Whelan sign the Will and thought they
were witnessing Mrs Turner's Will. Mrs Turner (who provided a witness statement but
was not cross examined as she was suffering from dementia) said that the witnesses
did see Mrs Whelan sign and that she had come to the language college (where the
witnesses worked) with Mrs Whelan for the purpose of executing Mrs Whelan’s Will.
Based on evidence from a hand-writing expert and the witnesses the judge concluded
that it was more likely than not that Mrs Turner took her Will and Mrs Whelan's Will to
the language college to be witnessed at the same time and that Mrs Whelan was not
with her. Mrs Whelan's Will was therefore held not to be duly executed. This is an
example of a rare case therefore in which the presumption of due execution was
rebutted.
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
3. LACK OF CAPACITY
Falsely and irrationally held beliefs which cause a testatrix to disinherit a
beneficiary will render the Will invalid on the ground that the deceased lacked
testamentary capacity.
McCabe v McCabe [2015] EWHC 1591 (Ch)
Mrs McCabe had dementia. Her son, Timothy, visited her several times a week. After
a fall out, she signed a Will leaving her entire estate to her other son, Stephen.
Stephen made arrangements for the new Will to be made, did not tell the solicitor
about her dementia and was present at the execution of the Will. The Will was
nevertheless held to be valid.
Mrs McCabe’s penultimate Will split her residuary estate equally between her sons
Stephen and Timothy, after small gifts to Stephen’s wife and Timothy’s daughter.
The judge held that Mrs McCabe decided to disinherit Timothy because she believed
he had initiated, without her agreement or authority, a police investigation into her
affairs and finances which brought Stephen within its reach, and made allegations in
respect of Stephen which suggested that he had misappropriated her money. This
belief was justified by what had happened. Timothy had initiated a police
investigation into his brother. It was not a delusion.
Although the circumstances shifted the evidential burden of proving her capacity onto
Stephen, the judge was satisfied that he discharged that burden.
4. LACK OF KNOWLEDGE AND APPROVAL
Even if a testatrix does not read her Will before executing it, she can still know and
approve of the contents.
Marshall v Alderman, [2015] EWHC 567 (Ch) 17
Mrs Alderman made a Will in October 2010 giving her house and chattels to her son. She
gave her daughter a sum equivalent to the market value of the house at the date of her
death, which was £250,000. Apart from the house, the estate was worth £169,000,
meaning that the daughter’s legacy would abate. Mrs Alderman’s penultimate Will, from
May 2010, left the estate equally between the two children.
The daughter brought a claim against the October 2010 Will on the grounds of want of
knowledge and approval. Mrs Alderman’s son was significantly involved in the
preparation of the October 2010 Will. He was the person who contacted his mother’s
solicitor to ask him to make the Will and had written to the solicitor to say that he was
his mother’s agent and all correspondence should be sent to him. In addition, the judge
held that he was involved in reading the October Will to his mother (although, rather
than reading a draft of the October Will to the mother, he read a summary of its
provisions which had been drafted by the solicitor who prepared the Will).
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
There was a history of animosity between the siblings and the judge recognised that
both children had exerted pressure on their mother to redraft her Will.
Although the Judge found that Mrs Alderman did not read the October Will before she
executed it (and nor was it read to her), he was satisfied that she knew and approved its
contents. Although the fact that a testatrix reads the Will before she executes it is
strong evidence of knowledge and approval, it is not a prerequisite. In this case, there
was evidence that the testatrix did know and approve the Will, in particular a letter
which she wrote after executing the Will from which it was clear that she knew and
agreed with the contents of the will.
Therefore despite the principal beneficiary being instrumental in the making of the Will
and the testatrix never having read the Will, she was held to have knowledge and
approval of its contents.
McCabe v McCabe [2015] EWHC 1591 (Ch)
Mrs McCabe’s son, Stephen, chose the solicitor to draft a new Will for his mother and
most of the communication between Mrs McCabe and the solicitor was conducted
through (or in the presence of) the son (due to benefit from the new Will). Indeed this
son made special trips to be present when the instructions were taken and when the Will
was executed. The Will never appears to have been read over to Mrs McCabe, and there
was no evidence that she read it herself. The solicitor was not experienced in dealing
with Wills and had been led to believe that Mrs McCabe did not suffer from any mental
health problems (when in fact she suffered from dementia). The Will represented a
radical departure from the provision made by the 2007 Will (splitting the estate equally
between the two sons) and Mrs McCabe’s previous statements as to her wishes in that
regard.
However, the Will was a straightforward document, the solicitor spoke to Mrs McCabe on
the telephone the day after he met her to explain the terms and checked that the draft
represented what she wanted to do. The solicitor and one witness (who was Mrs
McCabe’s doctor)’s evidence strongly supported that Mrs McCabe knew, understood and
approved the contents of the last Will and that it represented her testamentary
intentions. She did not passively go along with a proffered draft Will, but actively gave
instructions.
The judge was therefore satisfied that Mrs McCabe knew and approved the contents of
the Will.
5. INHERITANCE ACT CLAIMS
5.1. You cannot strike an Inheritance Act claim out unless it is completely hopeless
Dellal v Dellal [2015] EWHC 907 (Fam)
Jack Dellal was a multimillionaire property developer. He left his estate to his wife.
Despite this, she brought a claim under the Inheritance (Provision for Family and
Dependants) Act 1975. She claimed that Mr Dellal had distributed all but £15.4
million of his £445 million estate in the years preceding his death (to his children
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
from previous relationships) with the intention of defeating an application by her for
provision under the Inheritance Act. The defendants (Mr Dellal’s children) applied to
strike out the claim.
Whilst the judge noted that the wife’s significant personal wealth of circa £42 million
made it unlikely that she would receive an award under the Act, this did not in itself
make the claim hopeless. He refused, therefore, to strike it out.
5.2. What constitutes reasonable financial provision for an adult child’s maintenance?
Ilott v Mitson & Ors [2015] EWCA Civ 797
The Court of Appeal held that enough money to purchase her house (£143,000) plus
costs plus up to a further £20,000 was reasonable financial provision for Mrs Ilott.
Will the Supreme Court agree?
5.3. The fact a claimant has agreed as part of a divorce not to bring a claim under the
Inheritance Act does not, necessarily, prevent her from doing so
Chekov v Fryer [2015] EWHC 1642 (Ch)
The claimant was formerly married to the deceased. The two of them were still living
under the same roof at the time of the deceased’s death.
The Order in their divorce proceedings contained the usual provision that neither
party shall be entitled to claim against the estate of the other under the Inheritance
(Provision for Family and Dependants) Act 1975.
The defendants submitted that this meant that the claimant could not bring any claim
under the Inheritance Act. The claimant argued that as section 1(1A) of the Act (the
provision that allows co-habitants to claim) did not exist when the divorce order was
made, such a claim could not have been excluded by it. The judge agreed.
Watts v Watts [2014] EWHC 668 (Ch)
The deceased died of cancer in February 2011 leaving two children, Gary and
Christine. She had made a Will in 1999 leaving her estate equally between them. She
then made a homemade Will in January 2011 shortly before she died leaving
everything to Gary. It was made when the deceased was in hospital on constant
medication, including morphine.
Having pronounced against the validity of the 2011 Will (see forgery case law below),
the judge went on to comment that if she had upheld the validity of the 2011 Will,
she would have concluded that it did not make reasonable financial provision for
Christine. She considered it relevant that Christine was not blameworthy for her
strained relationship with the deceased and commented that her conduct, viewed
objectively, did not merit being cut out of her mother's estate. She also considered it
relevant that the deceased had treated the claimant and her brother equally during
her lifetime, and said that if the 2011 Will had been valid, she would have said that
reasonable provision for the applicant would have meant the deceased dividing her
estate between her children equally "as she had already treated them in life".
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
6. DONATIO MORTIS CAUSA
DMC claims are an anomaly. The doctrine is very unlikely to be expanded further.
King v Chilterns Dog Rescue Society and Other [2015] EWCA Civ 581
For there to be a valid donatio mortis causa (DMC):
i
there must be a reason why the donor believed their death to be impending –
old age is not enough; and
ii
it must be clear that the gift was conditional on death within a limited
period of time – statements of testamentary intent are not sufficient.
The testatrix in this case, Mrs Fairbrother, could not be said to be contemplating her
impending death when she made the alleged gift to Mr King. She was not suffering from
a fatal illness and was not about to undergo a dangerous operation or journey. The
Court of Appeal held that the fact that she was old was not sufficient to constitute
contemplation of impending death.
The Court also held that the words used when Mrs Fairbrother handed over the deeds to
her property “This will be yours when I go” were more akin to a statement of
testamentary intent than a gift which was conditional on her death within a limited
amount of time. This was supported by the fact that Mrs Fairbrother had subsequently
tried to make Wills leaving the property to the claimant with his help, which was
inconsistent with her having already gifted the property to him. The gift was not
therefore conditional on death.
The most interesting aspect of the judgment is the fact that the Court of Appeal
emphasised strongly that the proper way to dispose of your property on death is by Will
and that DMCs only really have a place where there is not time for a donor to make a
valid Will.
7. UNDUE INFLUENCE
A stark reminder that the test for undue influence in the context of a Will is
different to that for lifetime transactions
Henein v Laffa [2015] EWCA Civ 700
Mr and Mrs Henein had been married for over 30 years. Only 7 days before she died of
cancer, Mrs Henein executed a Will leaving her entire estate to her son from her first
marriage. Mrs Henein's estate included her half share of the matrimonial home.
The Court of Appeal commented that a "… general allegation of unfairness and
discrimination against the surviving spouse … does not provide any grounds for appeal"
and stressed that "In the case of a will, there is no presumption of undue influence. It is
for the person, in this case the Applicant, asserting undue influence to prove it and what
has to be proved is coercion." On the facts of this case, the appeal judge held that
there was no realistic prospect of an appeal succeeding and so the appeal of refusal of
permission to appeal was, itself, refused.
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
8. WILL FORGERY
There is less of an emphasis on expert witness evidence than on witnesses of fact
Watts v Watts [2014] EWHC 668 (Ch)
The deceased died of cancer in February 2011 leaving two children, Gary and Christine.
She had made a Will in 1999 leaving her estate equally between them. She then made a
homemade Will in January 2011 shortly before she died leaving everything to Gary. It
was made when the deceased was in hospital on constant medication, including
morphine.
Christine argued that her mother did not sign the homemade Will or acknowledge her
signature in the presence of two witnesses.
The judge evaluated the evidence given by the three witnesses to the signing of the Will
and preferred the evidence of Nurse Brown to that of the other two who were present
(one of whom stood to benefit if the Will was valid and neither of whom cross-examined
well). The nurse, who the judge found to be a respectable person who understood the
importance of telling the truth in court, said she saw the defendant, Gary, sign the Will
rather than the deceased. The handwriting evidence was inconclusive and the judge
found it less useful than the witness evidence. The judge found that the Will had been
forged and ordered that the deceased's 1999 Will be admitted to probate.
9. PROPRIETARY ESTOPPEL
9.1. What is the role of proportionality when it comes to proprietary estoppel awards?
Davies v Davies [2015] EWHC 015 (Ch)
This is the case in which the claimant became known as Cowshed Cinderella. The
Court of Appeal held that the claimant was entitled to an award from her late
parents’ estate based upon proprietary estoppel and the case was referred back to
the High Court for a quantum judgment. The claimant contended that nothing less
than a transfer to her of the farm and the farming business (valued at £4.4m) would
satisfy the equity in her favour. Her parents (who unusually for a claim involving an
inheritance are still alive) argued that £350,000 would be sufficient.
Unlike in Suggitt v Suggitt in which the claimant’s expectation was held to be key
(and that a claimant would receive their expectation unless this was grossly
disproportionate to the detriment suffered), in this case (having reviewed the case
law) the judge held that proportionality was key. There has to be proportionality
between the expectation and the detriment. He then concluded that a lump sum of
£1.3m (a third of the value) was “a fair reflection of the expectation and detriment”.
This was said to be enough for her to buy her own farm.
It is difficult to know what the law is now regarding awards in proprietary estoppel
claims. This was a High Court judgment. Suggitt v Suggitt was a Court of Appeal
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
judgment. Unfortunately, this High Court judgment does not seem to be the subject
of an appeal, leaving the authority on the point unclear.
Davies v Davies [2015] EWHC 1384 (Ch)
A farmer had 5 children. By his Will he left his farm on trust for one of his sons (the
claimant) until that son reached the age of 60 or died earlier and then provided for
the farm to be sold and divided equally between the children. The claimant was the
only child to work on the farm.
The claimant said that his father made repeated oral assurances to him from 1974
onwards that he would inherit the farm. As a result he worked on the farm for long
hours at low wages. When his father retired he carried on working on the farm,
largely on his own and ploughed profits back into the farm by carrying out
improvements costing approx. £177,000.
The father died in 1999, but it was not until 2012 that the claimant says he was aware
of the content of his father’s Will (when one of his brothers told him).
The judge held that whilst the claimant did receive benefit from the farm eg free
board and lodging and a good profit since his father retired (enabling him to buy
nearby farmland and an investment property), there was still a substantial balance of
detriment which made it unconscionable for the provisions in relation to the farm
contained in the Will to take effect. For good measure, it was also held that to
award the claimant the farm was not out of all proportion to the detriment suffered
by him.
9.2. The importance of the context of the two words “one day”
Rawlings v Chapman [2015] EWHC 3160 (Ch)
The deceased, Mr Hopkins, died in 2010 leaving the residue of his estate to charity.
The claimant, Mrs Rawlings, had a relationship with Mr Hopkins throughout the 1980s
up until around 1996. She was left nothing in his Will. She brought a claim based on
proprietary estoppel for substantial amounts she paid towards the building of a house,
in reliance on Mr Hopkins' promises that 'One day, this will all be yours'.
The property in question is a farmhouse that was built in 1991, which was meant to
be a B&B. The B&B was Mrs Rawlings' project and she was largely responsible for the
design of the house. The house was built on Mr Hopkins' land and he contributed
£100,000 which should have been sufficient. However, the construction company
went into liquidation before the property was complete. He therefore asked Mrs
Rawlings to contribute around £20,000 to complete the farmhouse. Mrs Rawlings did
so, but then it became clear that the B&B would not be viable as there was no
running water. Mr Hopkins and Mrs Rawlings soon separated and Mrs Rawlings moved
away.
The success of Mrs Rawlings’ claim turned on the wording of Mr Hopkins' promises. In
particular, whether he used the words 'One day, this will all be yours'. The Court
heard that during the construction process Mr Hopkins often said 'it's all yours' in the
present tense without using the words 'One day'. It was argued (and the Court held)
that in doing so Mr Hopkins was not saying this as a promise that she would receive
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
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the property on his death; rather he was not interested in discussing details of the
construction and he was leaving them to Mrs Rawlings to sort out. She was going to
run the B&B, so it was her responsibility. The Court held that if Mr Hopkins had used
the words 'One day', then enormous significance should be attached to them, but he
did not.
Accordingly, the judge found that Mr Hopkins did not make any promise to leave the
house to Mrs Rawlings, nor did he say anything which led to her believing, whether or
not reasonably, that such a promise had been made. (This was also evidenced by Mrs
Rawlings having instructed solicitors soon after the separation to explore how she
could recover the £20,000 she had invested. This action was not compatible with her
having an expectation that she had been promised the house and that it would be left
to her in Mr Hopkins' Will.)
9.3. Proprietary estoppel in the context of trusts
Fielden v Christie-Miller [2015] EWHC 87 (Ch)
The promise of one trustee can only bind all trustees for the purposes of estoppel if
that trustee has authority to bind the others. A claimant cannot rely on the promise
of one trustee alone, if that trustee does not have the power to bind the others.
Preedy and another v Dunne and others [2015] EWHC 2713 (Ch)
This case also highlights the difficulties in asserting proprietary estoppel over trust
assets.
Mrs Montgomery died in 1997, leaving her interest in the freehold and business of a
pub (The Albert Arms) on trust to her husband for life and then to her three children
(Sarah, Peter and Jonathan) in equal shares absolutely. Jonathan ran the pub. In
2000 and 2003 he paid for the refurbishment of the pub. When Mr Montgomery died
in 2013 the question arose as to what should happen to the pub. Jonathan asserted
that the trustee of the Will trust had promised him that he could run the pub for as
long as he liked. On the evidence, the judge did not find that any such promise had
been made to Jonathan and, furthermore, held that proprietary estoppel claims could
not be binding on beneficiaries who have not at least acquiesced in them. In other
words, Jonathan could not bring a proprietary estoppel claim which affected his
siblings’ interests in the pub, unless they were part of the promise to him, which they
were not.
10. PROPERTY ISSUES
10.1. The making of mutual Wills can amount to severance of a joint tenancy.
Chadda & Ors v HMRC [2014] UKFTT 1061
HMRC claimed that the full value of a property should be taken into account when
ascertaining the value of a deceased’s estate. The deceased’s executors disagreed on
the basis that the joint tenancy of the property had been severed. The Tax Tribunal
stressed that when deciding if severance had taken place by mutual
consent/agreement one had to produce “an informed, considered, qualitative
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appreciation of the whole”. Whilst the absence of any indication on the title to the
property of severance was noted not to be helpful, on balance it was overshadowed
by the fact that the deceased and her husband had made mutual Wills, which could
only take effect if the joint tenancy was severed, hence a conclusion that there had
been severance by mutual consent.
10.2. How should a property owned by co-habitees should be divided?
Graham-York v York [2015] EWCA Civ 72
The question at the heart of these proceedings was how the ownership of a property
should be divided where a couple had cohabited for 33 years ending with the death of
one of them, Mr York, the sole registered legal owner of the property.
The Court of Appeal refused to overturn the finding of the judge at first instance that
Miss Graham-York had a 25% beneficial interest in the property, to be calculated
following the sale of the property and the deduction of not only the costs of sale but
also of the mortgage over the property. The deduction of the mortgage before
calculating the 25% had the potential to halve the appellant’s interest in the property,
but the Court of Appeal found that it would be “artificial and illogical” for her
interest not to be subject to the mortgage indebtedness.
Miss Graham-York’s contribution (financial and non-financial) in relation to the
property was found to be minimal and thus the Court of Appeal held that the 25%
awarded did not fall outside the ambit of reasonable decision making. The appellant
alleged abusive conduct by Mr York but that was found to be irrelevant; the court was
not concerned with “some form of redistributive justice”.
10.3.
There has to be a common intention for ownership of a property to be shared or
for a contribution to be made for a property in the sole name of one co-habiting
occupant to be deemed to be owned by both
Curran v Collins [2015] EWCA Civ 404
Ms Curran and Mr Collins cohabited for 8 years. Both of the properties in which they
lived were in his name. When the couple separated, Ms Curran claimed a beneficial
interest in a property known as The Haven (the last property in which they
cohabited), which was held in Mr Collins’ name.
The main argument against the existence of a common intention constructive trust
was that Mr Collins had made it clear to Ms Curran that he was the sole owner of The
Haven and the other properties he owned during the course of their 32 year
relationship (most of which Ms Curran spent living with her mother). There was one
exception in 1986 when he purchased a previous house, the proceeds of sale of which
were used to purchase The Haven. Ms Curran raised the subject of her having a share
of the property, but he told her that it was too expensive for her name to be on the
deeds because it would involve paying two life insurance policy premiums. The judge
accepted that Mr Collins had made the statement to avoid any embarrassment, rather
than to imply that she would be an owner but for that expense. Further, it was held
that Ms Curran made no direct or indirect financial contribution to the properties and
there was no suggestion that she had made a non-financial contribution and thus the
judge concluded that Mrs Curran had no interest in the property.
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
11. TRUSTEE ISSUES
The Court is willing to remove trustees and appoint replacements where the
continuation of trustees is against the beneficiaries’ wishes and thus increases
litigation risk.
Re Weetman [2015] EWHC 1166 (Ch)
An accountant and a solicitor were appointed as executors of the deceased’s Will and
trustees of the Will trusts together with the deceased's sister (who renounced). The
accountant and solicitor took up their role as executors but there was a question over
whether they should become trustees of the Will trusts (which would hold shares in the
deceased’s company).
The accountant was perceived to have acted as a director of the deceased’s company
and it was foreseeable that conflict might arise between the interests of the company
and those of the beneficiaries under the Will trusts. The family saw the solicitor, who
took out a joint grant of probate with the accountant, as having “joined forces” with
him. The accountant and solicitor therefore said they were prepared to be replaced.
His Honour Judge Purle QC (sitting as a High Court Judge) said that mere loss of
confidence in a set of trustees was not of itself enough to justify his intervening and
removing the trustees. However, loss of confidence can in turn lead to avoidable
conflict and dispute and therefore to expense which is detrimental to the trust estate.
“The appointment, or continuation in office, of trustees, against the wishes of the
beneficiaries, who are perceived as being in a position of potential conflict brings in
another level of litigation risk, with an attendant substantial increase in costs.”
The appointed trustees suggested the appointment of an alternative accountant and
solicitor. The family preferred to appoint two family members together with a probate
solicitor. The judge considered it more cost effective and more harmonious to appoint
the latter, and ordered the same (to take effect on completion of the administration).
12. EXECUTOR ISSUES
Is it in the best interests of the beneficiaries for the executors to be removed?
Harris v Earwicker [2015] EWHC 1915 (Ch)
The second defendant in the proceedings (the deceased’s son from a previous marriage)
made a number of allegations against the executors of his late father’s estate,
particularly against Mr Harris who drafted the Will. He proposed substituting them with
two lay executors, being a previous manager of the deceased’s business premises and his
wife.
Paragraph 9 of the judgment contains a useful summary of the relevant principles for the
purposes of an application under section 50 Administration of Justice Act 1985 to remove
executors:
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i
It is unnecessary for the court to find wrongdoing or fault on the part of the
personal representatives. The guiding principle is whether the administration
of the estate is being carried out properly. Put another way, when looking at
the welfare of the beneficiaries, is it in their best interests to replace one or
more of the personal representatives?
ii
If there is wrongdoing or fault and it is material such as to endanger the
estate the court is very likely to exercise its powers under section 50. If,
however, there may be some proper criticism of the personal
representatives, but it is minor and will not affect the administration of the
estate or its assets, it may well not be necessary to exercise the power.
iii
The wishes of the testator, as reflected in the Will, concerning the identity
of the personal representatives is a factor to take into account.
iv
The wishes of the beneficiaries may also be relevant. However the
beneficiaries, or some of them, have no right to demand replacement and
the court has to make a balanced judgment taking a broad view about what
is in the interests of the beneficiaries as a whole. This is particularly
important where, as in this case, there are competing points of view.
v
The court needs to consider whether, in the absence of significant
wrongdoing or fault, it has become impossible or difficult for the personal
representatives to complete the administration of the estate or administer
the will trusts. The court must review what has been done to administer the
estate and what remains to be done. A breakdown of the relationship
between some or all of the beneficiaries and the personal representatives
will not, without more, justify their replacement. If, however, the
breakdown of relations makes the task of the personal representatives
difficult or impossible, replacement may be the only option.
vi
The additional cost of replacing some or all of the personal representatives,
particularly where it is proposed to appoint professional persons, is a
material consideration. The size of estate and the scope and cost of the work
which will be needed will have to be considered.
The judge did not consider that the allegations against the executors were well founded.
He accorded “real weight” to the deceased’s choice of executors (saying he chose them
with some care). Further, he considered that it was highly desirable for this estate to
have at least one professional personal representative.
Nevertheless, given the “barrage of criticism” Mr Harris had faced, the judge considered
it to be “in the best interests of the beneficiaries as a whole and the smooth running of
the will trust if he is removed”. However, he saw no advantage or benefit in removing
the other executors in favour of those put forward by the second defendant saying that:
“The jurisdiction under s.50 is not to be exercised lightly and although there is no
presumption against change, the party seeking change must satisfy the court that
there are substantial grounds which make a change necessary.”
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.
13. DEPUTY/ATTORNEY ISSUES
13.1. What can family members be paid for providing care?
Re HC [2015] EWCOP 29
P suffered from vascular dementia and required full time care. P moved from her
home in Bristol to be with her son (also appointed as her deputy) in London. The
deputy gave up his work as a quantity surveyor to look after his mother and paid
himself and his sister a salary for providing the care.
The Public Guardian made an application for the revocation of a deputyship order
because of the son’s failures to properly account for expenditure on renovating P’s
home (a point I will return to below) and because of the payments he had made to
himself and his sister even though the salary paid to the deputy and his sister was
significantly less than any alternative care package that might be available.
Senior Judge Lush approached the amount which should be paid to the deputy and his
sister in the same way as would be done by a court calculating the cost of care
provided by the claimant’s family in a personal injury claim, i.e. by allowing a
commercial rate discounted (in this case by 20%) because the payment is not taxable
in the recipient’s hands. He also provided for annual increases in line with Annual
Survey of Hours and Earnings (ASHE) 6145 for carers and home carers. He approved a
payment of £1,500 per month for the deputy and £100 per month for his sister.
Re HNL [2015] EWCOP 77
The brother, D, of a severely incapacitated person, H, had been appointed as her
receiver between the years of 2007 and 2010. D was authorised to remunerate
himself in the sum of £23,000 per year. In 2010 he was appointed as H's deputy for
property and financial affairs. D gave up his job in order to be H's full-time carer and
case manager.
Under section 19(7) of the Mental Capacity Act 2005, deputies are not entitled to
remuneration unless the court directs for it when making the appointment. The
Public Guardian sought an order to clarify whether payments from 2010 were
authorised, as the deputyship order did not allow for remuneration.
D was ordered to obtain a report from an expert quantifying the services he provided
as if they were provided by a professional, rather than a family member. The report
stated that care management costs, where a suitably qualified care team leader was
available, would be £36,138.40 per annum and care support costs would be
£10,657.30. D did not seek any more than the £23,000 he had been receiving before.
Senior Judge Lush said that section 19(7) MCA 2005 only applies to the deputy when
acting in that capacity, not in providing any other functions, such as that of a carer.
Nonetheless, deputies ought to seek the court's approval before paying a gratuitous
care allowance to either themselves or another family member, in order to avoid a
conflict with their fiduciary duty.
Senior Judge Lush approved of the guidance in Re HC [2015], that a relative should
receive the commercial rate less 20% as a gratuitous care allowance. The final
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decision was not a rigid application of this but Senior Judge Lush noted that "an
enormous saving" was being made on the commercial rate. In light of that, and the
high standard of care being provided by D and the fact that £23,000 was affordable
for H, Senior Judge Lush approved the continuance of the £23,000 remuneration, and
added an option to index-link the amount if D wished.
13.2. What can an attorney receive for travelling expenses, time and care services?
Re WP (Deceased) [2015] EWCOP 84
This case involves an application by two attorneys who were siblings acting jointly
under two Enduring Powers of Attorney for their parents. The siblings had been
paying themselves £150 a month for care and travel expenses incurred looking after
their parents. The two attorneys had also been transferring £6,000 a year into an
account as a "contingency care fund". A third sibling reported them to the OPG for
doing this. The OPG began an investigation and as a result the two attorneys paid
back £42,000 to their parents' accounts.
They then sought an order for retrospective approval of the expenses of £150 a
month. Their parents had not expressly provided for their attorneys to be
remunerated. The Court said it was seeking to achieve a neutral position whereby
the attorneys are not financially suffering but are not making a profit. It found that
there were three distinct heads of claim: travelling expenses, remuneration for acting
as attorneys and a 'gratuitous' care allowance. The Judge allowed them remuneration
for the tasks they performed as care workers which allowed their parents to stay in
their own home, but not for actual management of their parents' property and
financial affairs as there was nothing exceptional about the paperwork they
completed.
The Court retrospectively approved the payments to the attorneys as well as a
continued payment of £150 a month to each of them. The Judge said that he would
leave it to the attorneys' discretion as far as how much they reimburse their sister for
out of pocket expenses for any services she provides to their parents. The Court was
satisfied that the payments were reasonable and represented a significant saving on
the commercial costs of providing the same services. The payments struck a balance
between ensuring that the attorneys were not financially disadvantaged but that they
were not making a profit from their position.
13.3. Can a deputy/attorney use the donor’s money to do up the donor’s house?
Re HC [2015] EWCOP 29 (Senior Judge Lush)
Same case as above. The deputy used P’s money to renovate P’s house. The Public
Guardian cited this as a ground for removing the deputy. The deputy responded that
the work to P’s home in Bristol had been necessary to enable her to receive care
there. However it had subsequently decided that it would be let out. The decision
not to sell the property had been made after consulting other family members and
because the property was P’s pride and joy. Senior Judge Lush was satisfied that the
deputy’s actions in relation to the property were appropriate in order to make it
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presentable for the purposes of sale or letting and gave retrospective approval for the
expenditure on the house.
13.4. Can a deputy/attorney use the donor’s money to do up the deputy/attorney’s own
house?
Re OB [2014] EWCOP 28
The attorney in this case adapted her house using OB’s money to make a more
accessible bedroom, to install a new boiler, remodelling the property upstairs and
downstairs etc at a cost of £183,219. The attorney’s co-attorney complained and said
that, at the very least, OB should have gained some interest in the property as a
result of the contribution of her funds to it. The attorney argued in response that OB
had had capacity and had agreed to the spending.
Senior Judge Lush accepted that the attorney’s care for OB was exemplary but held
that the spending had amounted to a very substantial gift, so Re Beaney applies.
Having considered the matter in the context of Re Beaney, Senior Judge Lush held
that OB had had capacity to approve a gift of a reasonable sum “say £80,000”, but
not £180,000”. He added that by the time that much had been spent OB “no longer
had a clue what was going on”. He said the attorney should have involved her coattorney in the spending and that she should not have taken decisions on behalf of OB
which put her in a conflict of interest. She should have obtained a Court of
Protection Order authorising the spending if her co-attorney did not approve it. The
attorney in question was removed. The judgment is silent as to whether the attorney
should return the invalid gift or, at least, the element of it deemed to be
unreasonable.
13.5. Stop the press: an attorney helping him/herself to a donor’s funds is a criminal act
R V TJC [2015] EWCA Crim 12-74
The Court of Appeal (Criminal Division) has held that, where there is evidence of a
general deficiency in a donor’s funds as a result of withdrawals made by an attorney,
this will be sufficient to mount a charge that the attorney is guilty of abuse of
position under section 4 of the Fraud Act 2006.
All the prosecution presented in evidence in this case was evidence of the quantum of
withdrawals from the donor’s accounts which were considered unreasonably high
given the needs of the donor eg £14,000 withdrawn in cash between November 2011
and June 2012 when the donor was in a nursing home suffering from advanced
dementia. No way did the donor need that much cash. All fees for the home were
paid by direct debit.
The prosecution did not match withdrawals from the donor’s funds to items of
expenditure by the attorney. The Court of Appeal confirmed that the prosecutors did
not have to identify each unreasonable withdrawal. Total amount of withdrawals
when set against a reasonable sum that would have been incurred by the donor,
showed that the attorney could not have been acting honestly, and that’s enough.
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Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
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14. STATUTORY WILLS
The importance of being remembered for having done the right thing
Re Peter Jones [2014] EWCOP 59
The deputies of an 81-year-old (P) who had lost capacity to make a Will applied to the
Court of Protection for authority to execute a statutory will for him as he was intestate.
P had a wife of over 40 years and an estranged daughter from his first marriage who he
had seen on a handful of occasions. P had a substantial estate and if he died intestate
his estranged daughter would benefit disproportionately, leaving P’s wife without
adequate provision.
The judgment goes into some detail considering the concept of P's ‘best interests’ and
looks at P’s past and present wishes and feelings as well as other factors that P would be
likely to consider relevant (at the time that the Statutory Will was being executed).
Within this ‘best interest’ test the judgment considers the importance of being
remembered as having done the right thing and finds that “in the absence of evidence to
the contrary most people want to do the right thing by their family and loved ones and a
judge is entitled to take that view”.
The judgment weighs this factor up and, in reflecting on the wider case law, concludes
that the “law emphasises that adult autonomy is not the only consideration and that in
many cases and for many people it is in their best interests that they be remembered
with affection by their family and as having done ‘'the right thing’' by a Will”. However,
the judgment does still recognise that “The onset of mental incapacity is not an
opportunity for moral correction” although, to some, the court’s award of 25% of P’s
estate to his daughter may seem to be just that.
15. ALTERNATIVE DISPUTE RESOLUTION
Ever heard of early neutral evaluation?
Seals v Williams [2015] EWHC 1829 (Ch)
Robert and Andrew Seals commenced Inheritance (Provision for Family & Dependants)
Act 1975 proceedings against the estate of their late father, Arnold Seals.
There had already been one round of litigation concerning entries on the title of the
property which comprised the bulk of the estate. Those proceedings and the subsequent
Inheritance Act claim generated a great deal of acrimony and the positions of the parties
were in danger of becoming entrenched. An attempt at mediation stalled because of
differing perceptions of the issues in dispute and of the strength of the respective
arguments.
In an attempt to progress matters, the parties’ legal representatives invited the Court to
undertake an ‘early neutral evaluation’ of the case. The judge said:
“it seems to me plain that the expression of provisional views – with a view to
assisting the parties – reduces the areas of dispute and the general scope of the
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argument, and is an inherent part of the judicial function both in civil litigation and
in criminal proceedings.
The expression of provisional views in the course of a hearing is not dependent in any
way on the consent of the parties … In my judgment, if the parties ask a judge to
express provisional views on particular hypotheses or upon the judge's overall
impression of the case so far, then it is part of the judicial function for the judge to
accede to doing so – though plainly the judge is not bound to do so whenever the
parties request.
The proposed directions have been carefully crafted so as to afford the Settlement
Judge the opportunity to make non-binding recommendations as to the outcome and
to state short reasons for that recommendation without in any sense attempting a
provisional judgment … The directions also provide that, in the light of the
recommendations, the parties may agree a Consent Order.
What will bind them is their consent to the making of an order – not the outcome of
the early neutral evaluation process itself.”
This process is likely to be particularly useful where parties have very differing views of
the prospect of success and perhaps an inadequate understanding of the litigation risks.
A judge will evaluate the respective parties' cases in a direct way and may well provide
an authoritative (albeit provisional) view of the legal issues at the heart of the case and
an experienced evaluation of the strength of the evidence available to deploy in
addressing those legal issues. It is an option to consider particularly when dealing with
litigants in person.
16. COSTS
16.1. A successful claimant may be awarded his costs in a claim to remove an executor,
even if the opposing party is a litigant in person
Jones v Longley and others [2015] EWHC 3362 (Ch)
The testator appointed his solicitor and eldest son as executors. The administration
was at a stalemate because the relationship between the executors had broken down.
The solicitor executor therefore applied to remove the son as executor. The son
defended the claim. His initial position was that both executors should remain. He
produced a witness statement with 2000 pages of exhibits. Eventually, the son
changed his position to arguing for the solicitor executor to be removed and for him
to remain as sole executor. This position was supported by the other beneficiaries
(his siblings) who all wished him to continue with the administration rather than the
solicitor. The judge therefore made an Order removing the solicitor and leaving the
son in place.
The judge then considered the costs of the matter. It held that because of the
deadlock on the administration, the claimant acted reasonably in bringing the claim:
something had to be done. He also held that the first defendant acted unreasonably
in the way he defended the claim. The first defendant should therefore pay the
claimant's costs of the claim on the standard basis. To the extent that those costs
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were not recovered from the first defendant, the claimant was entitled to recover his
costs from the estate on the indemnity basis as per Part 46.3 (2) and (3) of the CPR.
It was also notable that in this case the first defendant was a litigant in person. The
judge expressly stated that the same rules apply to legally represented litigants and
litigants in person. The first defendant could not use his lack of representation as an
excuse.
16.2. Can the person who arranged the execution of a Will in such a way that question
marks were raised over due execution be held responsible for the ensuing costs
of a validity challenge?
Breslin v Bromley [2015] EWHC 3760 (Ch)
The Court had to determine the appropriate costs order following a challenge to the
validity of a Will. The normal rule is that the loser pays the winner’s costs and there
was no doubt that the claimant had won, the validity of the Will had been upheld.
However, the Court was asked to consider if the claimant was the cause of the
litigation. The claimant was the nephew of the deceased. He was the executor and
beneficiary of his aunt's Will. He had taken his aunt to a solicitor to make her Will.
She did not execute it at the solicitor's offices. Instead, the Will was executed
somewhere else and this caused some of the beneficiaries to question the validity of
the Will. The second and third defendants, who were the beneficiaries who
challenged the validity of the Will, argued that the costs should be borne by the
claimant as the litigation was his fault for not ensuring that the aunt's Will was
properly executed.
The Court found that the claimant had not caused the litigation as the fact that
someone can be said to be responsible for a Will having been executed otherwise than
in front of a solicitor cannot make it appropriate to view him as the cause of litigation
about it. He would not be ordered to pay any of the other parties’ costs
An interesting point arose with regard to the costs orders against the defendants who
lost. The Court found that the third defendant had taken a commercial decision and
it was a mistaken decision, therefore she was ordered to pay £70,000 towards the
claimant’s costs. In contrast, the second defendant had used CPR 57.7(5) and had not
put forward a positive case that the Will was invalid, but had just insisted on the Will
being proved in solemn form instead. As a result the Court said it would not be
appropriate in the circumstances to make a costs order against her.
17. INTEREST
Ever wondered how the rate of interest is decided upon?
Reinhard v Ondra [2015] EWHC 2943 (ChD)
Mr Reinhard was awarded a lump sum which was then held by the defendant's solicitors,
pending an appeal. Mr Reinhard sought interest on that sum under section 35A of the
Senior Courts Act 1981 which gives the Court discretion as to the appropriate rate of
interest to apply. The parties agreed that the purpose of an award of interest to Mr
Reinhard would be to fairly compensate him for being deprived of money that he should
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have received. The judge took a broad brush approach to determine what rate was just
and appropriate by considering the general characteristics of the recipient.
In reaching his decision the judge provided useful guidance in relation to setting the rate
of interest. He said a distinction needed to be made between the approach taken in
commercial cases (where the presumption is that the business needs to borrow money to
replace the money lost or detained – traditionally 1% over base), non-commercial case
such as personal injury cases (where one finds an appropriate rate that would represent
the rate of return had the money been placed on deposit at the date of the event that
gave rise to the claim – typically 5% over base), and cases which fall into neither of
these categories (where the presumption of the need for credit is weak or non-existent).
The judge also said that a broad brush should be applied rather than enquiring into the
actual loss or what the claimant would have actually done with the money.
In the circumstances, the judge held that to restrict Mr Reinhard to a rate of 1% over
base rate would be unfair to him. However to award him 5% over base would be unfair
to the defendants. Mr Reinhard was therefore awarded interest at 3% over base rate.
Fiona Campbell-White
Partner
T: 020 7998 0425
E: [email protected]
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Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.