Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The High Court has held that a potential claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”) by a surviving husband against his deceased wife’s estate abates on the death of the husband.
On her death in 2014, multi-millionaire Pauline Milbour left a pecuniary legacy of £150,000 and interest in the income of £75,000 to her husband of 40 years with the remainder of her fortune going to her natural daughter Luanne Fresco (the Defendant). Leonard Milbour died nine months later. By his will, Mr Milbour left his estate to his natural daughter (Mrs Milbour’s step daughter) and her daughter (the Claimants) who subsequently sought to bring a claim for reasonable financial provision under the 1975 Act, that Mr Milbour had not himself bought before his death, against Ms Milbour’s estate.
Mr S Monty QC (sitting as a Deputy Judge of the Chancery Division) found that it was not possible to determine whether reasonable financial provision had been made for the applicant pursuant to Section 3 of the 1975 Act in circumstances whereby the applicant was a deceased’s estate. He said “The 1975 Act gives a personal right to bring a claim, but that right is not itself a cause of action; it is a hope of contingency which falls short of being a cause of action in the sense of a state of facts which if true enable the application to get a remedy from the court …. The facts are not determined until the court carries out the stage 3 exercise; until that point the claim remains a hope”. Mr S Monty QC noted that a deceased applicant: (i) has no financial resources or needs; (ii) his estate could not have a physical or mental disability; and (iii) his estate could have no age.
The court found that a master had been entitled to make an order removing the applicant as an executor of her father’s will and replacing her with an independent professional. The deceased died in 2008. By his will he bequeathed his entire estate to his son and daughter and appointed them as executors. Probate had not been granted by February 2013 when the deceased’s son applied for the appointment of an independent administrator in order to progress the administration following difficulties between him and his sister. Before the application could be heard, the deceased’s son died and his partner took over conduct of the application. Mr Justice Newey agreed with the master that the evidence showed that the deceased’s daughter was advancing claims that put her in a position of conflict. Probate had still not been granted 8 years after the deceased’s death. There was a sufficient basis for the master’s decision to remove the deceased’s daughter as executor and to appoint the independent administrator.
In this case the trustees of a settlement applied for rectification or rescission of two deeds of revocation and appointment on the ground of mistake. It was submitted that the two deeds were wrong because they effected a revocation and reappointment of the trusts relating to two of the settlor’s children whereas they were only intended to effect a more limited revocation of certain interests.
Mrs Justice Rose held that the criteria for rectifying the two deeds was satisfied. There was (1) clear evidence of the true intention to which effect has not been given in the instrument; (2) a flaw in the document so that it did not give effect to that intention; (3) a specific intention to achieve something different from what had been done; (4) an issue capable of being contested between the parties notwithstanding that all relevant parties consented to the proposed rectification.
Should you wish to discuss a disputed Will or Trust, please do not hesitate to contact our Wills, Trusts and Inheritance Disputes team.
Alternatively, please visit our Wills, Trusts and Inheritance webpage, or for more information, read our frequently asked questions on wills, trusts and inheritance disputes.
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