Contentious Trust and Probate Quarterly Round-Up: Q2 2020

14 July 2020

This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period April 2020 - June 2020.

Amos v Mancini, 2020 EWHC 1063 Ch

The High Court has determined that the forfeiture rule applies where a person causes death by careless driving.

In this case, Mrs Amos had been out driving with her husband when they were involved in a collision that resulted in his death from the injuries he sustained. Mrs Amos was convicted of causing death by dangerous driving. She subsequently sought a declaration from the High Court that the forfeiture rule should not apply to preclude her benefiting from his residuary estate and his share of their home by survivorship. The claim was contested by her step-daughter (also a beneficiary).

Mr Justice Jarman QC concluded that it would be unjust for the forfeiture rule to apply in this case, because the loss of either the gift in  husband’s will, or her husband’s share in their home, would be “significantly out of proportion to Mrs Amos’ culpability in the offence in question”.

For a more detailed analysis of the application of the forfeiture rule, please see this blog.


Re H Deceased, 2020 EWHC 1134 Fam

The High Court has ruled in favour of an adult child who had been estranged from the deceased and excluded from his will in making a claim for reasonable provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

The adult child suffered from mental illness and was “in a position of real need” but had been estranged from her family for 10 – 20 years (of her own election) and had had limited financial support from her family for more than 20 years. Mr Justice Cohen applied Ilott v Mitson and others [2018] AC 545 in determining that the lack of active maintenance from the adult child’s father whilst he was alive did not preclude a claim. He concluded that an award should be made that would constitute reasonable financial provision but that it was not a case where the claimant should “be set up with a home or income fund for life” but instead calculated by what she required to meet her current financial needs.

Mr Justice Cohen also considered the question of recoverability of conditional fee agreement uplifts in the context of 1975 Act claims concluding that claimants could seek such an uplift in these types of cases.

For a more detailed account of conditional fee agreements in the context of 1975 Act claims, please see our blog. 


Wills v Sowray, 2020 EWHC 939 Ch

The High Court has awarded in favour of two brothers pursuing a proprietary estoppel claim against the estate of a deceased friend.

The estate comprised a large farm comprising land, properties and outbuildings. The two brothers had both lived on the farm in the deceased’s life time. One brother had been promised by the deceased that on his death he would get the farm and the other that he would receive a plot of land in exchange for a vehicle. The deceased died intestate and his estate consequently passed to his estranged daughter in accordance with the intestacy rules.

Mr Justice Raeside QC was satisfied that promises had been made by the deceased that the two brothers would receive the land, that they had reasonably relied on those promises to their detriment and that it would in all circumstances be unconscionable for the estate to go back on the promises made.


Caldicott v Richards, 2020 EWHC 767 Ch

The High Court has declined to exercise its to discretion to remove and replace trustees despite the sale of shares in a family company by the trustees to a trustee having been rescinded.

Mrs Justice Falk concluded that the self-dealing rule applied and the sale of shares should be rescinded. Consents had been obtained from the claimants but they were not fully informed and there were no exceptional circumstances worthy of justifying the non-application of the rule.

However, when it came to determining whether the trustees should be replaced Mrs Justice Falk concluded that it was not required in all the circumstances. She was of the view that the continuance in office of the existing trustees would not prevent the proper execution of the trust in the interests of all of the beneficiaries.


Clitheroe v Bond, [2020] EWHC 1185 Ch

The High Court has been asked to determine whether the deceased mother of two children had testamentary capacity to make each of her wills (one made in 2010 and the other in 2013) and in addition or in the alternative whether either of both wills resulted from fraudulent calumny.

The deceased’s wills were challenged by her daughter who was said to have been excluded from any inheritance on the basis that she was “a shopaholic and would just fritter it away”. The deceased’s son was the executor and trustee of both wills and benefited from the residuary estate. He had been involved in the preparation and execution of both wills and the “Golden Rule” had not been followed. The burden of proof in relation to capacity lay with him.

Deputy Master Linwood concluded that the deceased’s son had failed on the balance of probabilities to demonstrate that his mother was not suffering from an affective disorder of the mind and was not suffering from delusions that affected her testamentary capacity when she made either the 2010 or 2013 will. There was also insufficient evidence to support the allegation of fraud (in relation to which the burden of proof lay with the daughter).


Sofer v Swissindependent Trustees, 2020 EWCA Civ 699

The Court of Appeal has overturned a decision of the High Court in which a trust beneficiary’s claim for breach of trust against the trustees for paying out trust funds to the settlor when they were only permitted to make loans had been struck out on the basis of an exoneration clause.

At first instance, Mr Justice Matthews had determined that the trustees were protected by an exoneration clause that excluded liability for everything apart from loss or damage resulting from “acts done or omission made in personal conscious and fraudulent bad faith by the trustee”. He considered that the claimant beneficiary had failed to properly plead dishonesty.

The Court of Appeal unanimously agreed that the claim should not have been struck out and considered that the claimant beneficiary should have been permitted to amend his particulars of claim to plead particulars of the trustee’s alleged dishonesty. The correct test to be applied when determining dishonest breach of trust was the test set out in Fattal v Walbrook Trustees (Jersey) Ltd [2010] EWHC 2767 (Ch).


About the author

Katherine Pymont is a Senior Associate in our Dispute Resolution team. She specialises in Wills, Trusts and Inheritance Disputes. Katherine's experience  includes challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts. 


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