Knowledge and approval - When is a will suspicious?
2018 has seen many interesting decisions in the field of contentious trust and probate litigation. I summarise what I see as some of the key cases below (in order of the judgment date), which have covered topics varying from will validity challenges to construction of trust documents and much more in between.
In this action the claimant was refused permission to bring a claim pursuant to section 2 of the Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”), her claim being over ten years out of time.
Mary Sargeant had been married to Joe Sargeant for 45 years at the time of his death in 2005. Joe owned substantially all the assets in the marriage, which included a large amount of land, and his estate was worth over £3.2 million when he died (though by 2017 it was said to be worth closer to £8 million). By his last will made in 2002 Joe left his guns and fishing equipment to his son Jeff, and the balance of his personal chattels and the benefit of a life policy worth £75,000 to Mary. The remainder of his estate was left to his executors as trustees on terms of a discretionary trust. The class of potential beneficiaries was limited to Mary, their daughter Jane and Jane's issue.
After Joe’s death Mary entered into an arrangement whereby she received a salary from the trust and money for expenses, but by 2009 Mary was in financial difficulties and her salary was insufficient for her needs. Her difficulties persisted and matters could not be resolved with the trustees. Mary then issued proceedings under the Act in 2016 for financial provision from the estate.
It was common ground between the parties that Mary was entitled to bring a claim under the Act but that the court’s permission was required, given that the claim was brought out of time (section 4 of the Act provides for a six month time limit from the date of the grant, which had been obtained in 2006).
HHJ David Cooke declined to allow the claim to proceed out of time, deciding that the Mary had not made out a sufficient case that it would be just and right to do so. He accepted that Mary had at least an arguable claim and recognised the financial difficulties she had been in for some years. However he concluded that she’d had the opportunity to seek legal advice on many occasions throughout the years after Joe’s death and did not do so.
The judge decided that it “would not be right” to give Mary permission to bring the claim because she “took her own decision to continue to work within the arrangements provided for by the will rather than to explore whether she had any option available to vary them, in the full knowledge of the financial difficulties she was under, and maintained that decision over a very long period”. He considered that the “very extensive delay” was caused by Mary’s “own failure to take any steps” to explore her options, the result being that Mary was prevented from pursuing a claim under the Act.
The issue to be decided by the Court of Appeal in this case was whether a trust had been validly created by John North in respect of shares in a business venture carried on by him.
Mr North was an inventor who had created a device that could be widely applied in domestic appliances. He had entered into an agreement with a manufacturer in respect of the device and later sued the manufacturer for breach of contract, recovering significant damages which totaled around US$17 million.
The parties to these proceedings were all investors in Mr North’s business and they claimed that the terms on which they had agreed to invest entitled them to a share
of the damages Mr North had been awarded. The parties relied on documents and agreements to support their claims that Mr North had intended to create trusts in their favour and that they were entitled to a share of his assets. The judge at first instance found that Mr North had created a trust in favour of the investors in undivided shares in his business. John North died in 2012 and his sons conducted the appeal against the first instance decision.
In the Court of Appeal the points in issue were whether Mr North intended to create a trust and, if so, the property to be subject to the trust. In its judgment in early 2018 the Court of Appeal reversed the decision of the High Court, finding that there was no evidence that Mr North had intended to create a trust.
Having decided that difficulties in identifying the trust assets were not “insurmountable”, David Richards LJ turned to the question of “whether a sufficient intention on the part of Mr North to create a trust of shares in his business can be found in the documents and discussions on which the respondents rely”.
He found that the trial judge had correctly directed himself that for a document to create a valid trust, “the words used by Mr North must show an intention to create a trust”. After considering the documents relied on, David Richards LJ concluded that the language used was “simply inapposite to create a trust”. He observed that “although an intention to create a trust does not require the use of the word trust or similar language, there must be, as Scarman LJ said in Paul v Constance  1 WLR 527 at 531, "a clear declaration of trust and that means there must be clear evidence from what is said or done of an intention to create a trust"”.
Taking this into account, he did not consider that any such clear evidence was provided by the agreements relied on by the parties and concluded that “there were no words suggesting the creation of a trust”.
The judgment serves as a reminder of the three well-known requirements for the creation of a valid trust; certainty of subject matter, intention and object.
Frank and Jane Habberfield had carried on a farming business at Woodrow Farm since the 1970s, which included a large amount of land, buildings and a farm house. They had four children, the youngest being Lucy Habberfield, the claimant in this case.
Frank died in 2014, leaving his estate to Jane by a will he made in 1998. In any case, Frank and Jane held the property comprising Woodrow Farm as beneficial joint tenants, so from Frank’s death Jane was the sole owner of Woodrow Farm, which was said to be worth approximately £2.5 million in total.
Lucy issued a claim based on proprietary estoppel against her mother Jane, claiming to be entitled to Woodrow Farm. Such claims require a promise, which has been relied on by the claimant to their detriment. Lucy’s case was that she had worked on the farm since leaving school in the early 1980s because her father had assured her that she would take over the farm once he retired. Jane denied that she or Frank had ever given such assurances and said that even if Frank had done so, she was not aware of it so could not be bound by promises he had made. Jane also argued that Lucy had exaggerated her work on the farm and contribution to the farming business and said that Lucy had received other benefits, such as accommodation.
Mr Justice Birss found that Frank had made statements to Lucy to encourage her to commit to a career in dairy farming at Woodrow Farm. In making the statements “the idea which was intended to be conveyed to Lucy was not only the idea that the farming business would be hers in future after Frank could not run it anymore but that the farm as a piece of property itself would be passed on to her too.” The judge concluded that the statements made “were not idle or casual remarks. They were made in a manner in which it was intended Lucy would take seriously – to continue her commitment to the farm, to continue to work hard and to accept the wages and hours she was working”. The judge found that Frank “intended her to understand that the reward for her commitment would be that the farm would be hers in future”.
Even though the various representations used different words and “were not always explicit”, together they amounted to “a coherent promise to Lucy that she would inherit a viable dairy farm at Woodrow”.
The judge characterised Lucy’s work on the farm over a 30 year period as a relevant detriment and also found that Lucy had relied on the assurances given to her. He found that in addition to the terms on which Lucy was employed (long hours, low pay and few holidays) the detrimental reliance also included the commitment to farming at Woodrow rather than going elsewhere and setting about building a successful dairy farming business of her own.
The judge therefore concluded that Lucy's case of proprietary estoppel was established and that an equity had arisen in Lucy's favour. He then moved to deciding how to satisfy the equity, the court having a broad discretion in this regard.
The judge ruled that Lucy ought to receive compensation based on what she was promised, subject to any relevant deductions, and that what she was promised was a viable dairy farm at Woodrow. This did not mean should receive the entire farm. Instead, Jane was ordered to pay Lucy a cash sum equivalent to the value of the farmland and farm buildings at Woodrow itself, but excluding an additional parcel of land and the farmhouse where her mother lived. That sum amounted to £1,170,000.
There have also been a number of successful other successful proprietary claims in 2018 with similar themes including Gee v Gee  EWHC 1393 (Ch)
and Thompson v Thompson  EWHC 1338 (Ch).
Both of these cases involved successful claims by cohabitees under section 1 of the Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”).
In Thompson v Raggett, the claimant Joan Thompson had lived with her partner Wynford Hodge for some 42 years before his death in 2017. By his last will made in December 2016 Mr Hodge made no provision for Joan, leaving his estate of over £1.5 million to the two tenants of one of the properties he owned, who had resided in the property since 2015. Mr Hodge explained in a letter of wishes accompanying the will that Joan was “financially comfortable” with her “own money and her own savings”. He also stated that he felt Joan’s children (from a previous relationship) had “previously taken advantage” of him and he did not trust them, therefore he did not want Joan or her children to inherit from his estate. He also noted that he was Joan’s main carer and expected that she would need to go into a home after his death.
HHJ Jarman QC was required to decide what would amount to reasonable financial provision for Joan’s maintenance, considering the factors under section 3 of the Act. The judge highlighted that Mr Hodge had acknowledged that one of his responsibilities was as the main carer of his partner. He found that Mr Hodge was "justified in saying that [Joan] would not be able to live independently, but does not appear to have considered that she would be able to live in her own home with an appropriate care package". The judge concluded that the level of Joan’s savings went "nowhere near justifying the lack of any provision for her at all”. He recognised that “the predominant motive appears to be that [Mr Hodge] did not want any of his assets to fall into the hands of [Joan’s] children, and again that is not a sufficient reason for leaving her without any provision”.
In respect of Joan's claim as a cohabitee the judge gave regard to her age (79) and to the period of cohabitation (42 years) and to her contribution to the welfare of Mr Hodges’ family, which had included looking after the home and looking after Mr Hodge's mother for some years before she died. The judge pointed out that the period of cohabitation was "a very substantial one", as was Joan’s contribution to the family.
Regard was also given to the length of time and the basis on which Mr Hodge had maintained Joan, the extent of the contribution, and the extent to which he assumed responsibility for her maintenance. It was common ground that Joan was financially dependent on Mr Hodge throughout their relationship and at his death. Despite Mr Hodge stating that Joan was “financially comfortable”, Joan had only limited savings of £2,500 and her only income consisted of a state benefit and disability living allowance. Joan had moved into a care home following Mr Hodge’s death but wished to return to living in the cottage where she had lived with Mr Hodge and to have her children move in to help care for her. Joan adduced expert evidence to confirm that, despite her advanced age, the cottage would be suitable accommodation for her with an appropriate care package; she did not “require the facilities of a nursing home".
The judge concluded that it was “not reasonable to provide for her accommodation away from the farm which has been her home for 42 years and where she wants to live”. Therefore he awarded Joan the cottage outright, rather than granting her a life interest. This was because of the “very long period of cohabitation”, together with the fact that it would enable Joan to take decisions relating to her home, such as making structural alterations or raising money without the need to seek permission, which would not be possible with just a life interest. The judge also awarded Joan £160,000 to allow the cottage to be suitably adapted and maintained and for her ongoing care. Even with these awards to Joan, the judge was satisfied that the beneficiaries under the will would still receive "by far the major part of a substantial estate".
In Banfield v Campbell the claimant Andrew Banfield had been left just £5,000 under the will of his late partner Sarah Campbell, who died in 2015. She had made the will in 2001 at the start of their relationship. After the legacy to Mr Banfield she left the rest of her estate to her son James (whose father had died before Mrs Campbell and Mr Banfield met).
By the time of her death, Mr Banfield and Mrs Campbell had been living together since at least around 2001 in the home owned by Mrs Campbell, even though there was some dispute as to when Mr Banfield permanently moved in with Mrs Campbell. Mr Banfield bought a claim under section 1 of the Act arguing that reasonable financial provision had not been made for him by Mrs Campbell’s will and that he had been maintained by Mrs Campbell, as she had provided rent-free accommodation.
Mrs Campbell’s son argued that the pair were no longer in a romantic relationship by 2015 and that Mr Banfield was more akin to a lodger. However the judge found the fact of “the relationship lasting for more than 20 years between [Mrs Campbell] and Mr Banfield and their open cohabitation from around 2001” was what underpinned the claim and accepted that reasonable financial provision had not been made for Mr Banfield.
Although Mr Banfield had his own income and savings he claimed that he needed a capital sum in order to purchase alternative accommodation, which he could not afford by himself. Judge Teverson appeared to have some sympathy with Mr Banfield. However, as Mr Banfield was not married to Mrs Campbell, he could only award him what he considered necessary for his maintenance, having no discretion to award him anything above and beyond maintenance.
The judge did not accept that the estate should be required to pay out a lump sum to Mr Banfield so that he could purchase a property outright; in the judge’s view “that would go beyond maintenance provision and be excessive capital provision”.
Therefore the judge ordered that Mrs Campbell’s property be sold and he awarded Mr Banfield a life interest in one half of the net sale proceeds. In addition, the judge ordered for £20,000 of the estate funds to be retained in case the property purchased by Mr Banfield needed to be adapted to meet his needs. In making his decision the judge took into account all of the factors required under section 3 of the Act “including in particular Mr Banfield's resources and housing needs, the length of his relationship with [Mrs Campbell] and the size and nature of the net estate”.
This case concerned a claim brought by Alan Brindley against his brother Gordon relating to (amongst other things) a property transfer made by their mother, Shirley Brindley, before she died. Mrs Brindley lived with Alan between 2009 and 2014, but moved in with Gordon in January 2014 when Alan’s wife was admitted to hospital. Mrs Brindley remained living with Gordon but her two sons fell out over whom she should live with and other matters concerning her affairs, including an LPA.
Shortly after she moved in with Gordon, Mrs Brindley transferred her home in Cornwall (which she solely owned) to herself and Gordon as beneficial joint tenants, such that when she died the property passed to Gordon by survivorship. The transfer was carried out in March 2014 by a solicitor who visited Mrs Brindley and advised her in relation to the transfer prior to completing it. Mrs Brindley died in August 2015 and Alan alleged that the transfer had been procured by Gordon’s undue influence over their mother.
Judge Klein gave his judgment on the undue influence claim in February 2018. He accepted that there was a sufficient relationship of “trust and confidence” between Gordon and Mrs Brindley and their relationship was such that Mrs Brindley was “prepared to agree a course of action proposed by Gordon”. Judge Klein did find that Mrs Brindley “did not appreciate the effect of a gift of the Cornish property to Gordon as a beneficial joint tenant” because Gordon had not “accurately or fully explained to her the effect of a beneficial joint tenancy”. Gordon had therefore “failed to discharge the obligation of candour and fairness” he owed to his mother.
However the undue influence claim failed because the solicitor instructed by Mrs Brindley to carry out the property transfer had “properly and independently advised Mrs Brindley about the nature and effect of the proposed transfer”. The advice given by the solicitor to Mrs Brindley was sufficient to have an “emancipating effect”, such that the transfer was not procured by undue influence, but was “carried out by Mrs Brindley of her own free will”.
This case involved a challenge to a will on the grounds of want of knowledge and approval. The testatrix, Urmila Gupta, moved to England from India in the 1950s with her husband Laxmi. The couple decided to stay and raise their three children in England permanently. They instructed a local solicitor to make mirror wills for them in 1998. Their sons, Naresh and Rakesh, were named as executors and the terms of the wills effectively Naresh; after the death of both Urmila and Laxmi the family home (in which Naresh had lived with his parents and wife and children since the 1980s) was left to Naresh, together with a cash sum equivalent to the nil rate band. There were some small pecuniary legacies to the couple’s daughter and six grandchildren and a gift to charity, with the remainder of the estate being split equally between Naresh and Rakesh. The couple also made wills in India dealing with their Indian estates in 2004 (which also favoured Naresh).
Laxmi died in 2009, with his estate passing to Urmila, who then died in 2014 having suffered from dementia for several years before her death. Rakesh bought a claim challenging his mother’s will in 2017 on the grounds that she could not have known and approved of the contents of the will she had executed in 1998. Rakesh alleged that Urmila could not read English and could speak only a handful of words in English, her native language being Hindi. Therefore she would not have been able to read or understand the English will, even if it had been read over to her in English or even in Hindi.
There were many unusual features in this case, which are set out in Charles Hollander QC’s judgment. He concluded that Rakesh had not established any suspicious circumstances at all in relation to his mother’s knowledge and approval of the will. He accepted that Laxmi and Urmila had a close and loving relationship and that it would be “astonishing” if they had not discussed the contents of their mirror wills before execution, even if Laxmi had been the “driving force” in instructing the solicitor to prepare the wills. He accepted that Urmila would have conversed in Hindi when she was with people who also spoke Hindi but that she would be willing to express herself in English when she had to. Judge Hollander said that although Urmila suffered from a variety of health conditions later in life, he did not accept that by 1998 those would have impaired her ability to have knowledge and approval of her will. Finally, Judge Hollander concluded that it was apparent that Urmila did not treat her children equally, for example in respect of her Indian will (which was not challenged by Rakesh), such that the disparity in benefits between the couple’s three children could not be seen as suspicious.
This claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) was brought by the two minor children of Malkiat Singh Ubbi (“Malkiat”) through their mother (“Bianca”) acting as litigation friend.
Malkiat had married his wife Susan in 2000. Together they had a son, Jarnail, and Susan also had a daughter from a previous relationship whom Malkiat treated as his own. Malkiat met Bianca in 2007 and they had an affair. They had two children together, Mattia and Gabriele, born in 2012 and 2014. Malkiat had made a will in 2010, several years before the birth of his children with Bianca, leaving his estate to Susan and, if she predeceased him, to their son Jarnail on trust.
Susan discovered Malkiat’s affair with Bianca in around 2011 and Malkiat, at least initially, lived a “double life”. Evidence was heard that he told Susan that he was devoted to her and that the pregnancy with Bianca was an accident. Separately Bianca believed that the pregnancy was part of her new life together with Malkiat. He maintained this double life for some years, and it wasn’t until 2013 that Malkiat moved in with Bianca into a property he jointly owned with Susan, which appears to have been the catalyst for Susan commencing divorce proceedings in late 2014.
Malkiat died unexpectedly in early 2015. Bianca, acting as litigation friend for her children, brought the claim against Malkiat’s estate as no provision had been made for them in Malkiat’s 2010 will (which predated their births). The estate was substantial, worth around £3.3 million.
First, the court was asked to consider that the needs of an infant child should rank well before the needs of other beneficiaries, such as to whether Mattia and Gabriele’s needs should take priority to those of Jarnail (an adult child but who suffered from disabilities and learning difficulties). Master Shuman found that submission unhelpful, and reiterated that “the Act does not provide for the financial needs of an applicant infant child to be elevated to a first or paramount consideration”. He also ruled that “the bare fact that a child was born within or outside of a marriage is irrelevant”.
The parties agreed that a lump sum order should be made. Master Shuman was cautious to ensure that a capitalised order would meet the childrens’ maintenance needs, “whilst bearing in mind that provision under the 1975 Act is to provide financial provision which meets the everyday expenses of living and does not extend to everything that it might be desirable for them to have or indeed to provide them with a capital sum.”
Master Shuman confirmed in his judgment that “when considering reasonable financial provision and maintenance for the children I bear in mind the standard of living enjoyed by both Susan and her family and that of Bianca whilst Malkiat was alive. I also bear in mind the size of the net estate and the resources available to Susan.” He also highlighted the ruling of Lord Hughes in Ilot v Mitson, that reasonable financial provision is “not limited to subsistence level”.
The main differences between the parties in the assessment of the childrens’ needs related to childcare, education and housing costs. After considering all of the factors under section 3 of the Act, Master Shuman ordered that the lump sum due to be paid by the estate for Mattia and Gabriele's reasonable financial provision was £386,290.60.
This claim centered on contradictory clauses in a lifetime trust. Two of the early clauses in the trust gave vested interests in reversion to the settlors, and created a power of appointment exerciseable in favour of the settlors (amongst others). A later clause in the trust flatly contradicted the earlier provisions whereby the settlors were excluded from receiving any benefit from the trust.
The claimants in the claim were the settlors of the trust and its trustees and they sought guidance on how (if at all) to resolve the contradiction.
The claim was put on two alternative bases, the first being the construction of the trust deed and the second being rectification of the trust deed. HHJ Paul Matthews dealt with matters on paper and he had evidence from the solicitor who prepared the trust deed that the later inconsistent clause should not have been included in the settlement.
The judge confirmed that the principles for the correct construction of wills, as set out in the decision of the Supreme Court in Marley v Rawlings, could be applied in this case. In Marley v Rawlings Lord Neuberger stated that “whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context”. The judge adopted this approach in Millar, stating that “there can be no reason to suppose that the construction of a family trust deed… should be construed along different lines”.
HHJ Paul Matthews found that there was “clear evidence in this case of the true intention of the settlors”. He ruled that the clause that was inconsistent with that intention should therefore, as a matter of construction, be disregarded completely.
Given the conclusion he reached on construction, the judge did not need to address the question of rectification but did so anyway for completeness. He confirmed that there would have been no considerations which would bar rectification and therefore, if he had not held that as a matter of construction the contradictory clause was to be disregarded, he would have ordered rectification of the trust deed.
This case concerned an application for summary judgment by the first and second defendants in the claim for an order pronouncing against the 2008 will of Lord Templeman.
The claimants had issued proceedings seeking an order pronouncing for the 2008 will and those proceedings were defended on the grounds that Lord Templeman lacked the requisite testamentary capacity when the 2008 will was made. Evidence relied on by the defendants included contemporaneous documentary evidence and witness evidence. The defendants alleged that evidence of a conversation with Lord Templeman in 2008 about an earlier will and codicil demonstrated that he had forgotten about the terms of his earlier will and codicil. Therefore, the defendants argued, the only and necessary conclusion to be drawn was that Lord Templeman lacked testamentary capacity in 2008.
Although summary judgment in probate cases is unusual, it is possible if the applicants are able to show that the claim has no real prospect of succeeding at trial. In his judgment Master Shuman found against the defendant applicants. He concluded that the evidence relied on by the defendants raised “issues that require investigation and a finding as to whether the deceased was possessed of sound disposing mind and memory”. That militated “firmly in favour of a trial not a summary disposal”. Master Shuman stated that the question of Lord Templeman’s testamentary capacity needed “testing in evidence and finding of facts made”. The expert evidence as to Lord Templeman’s capacity relied on by the claimants supported their case that there was a triable issue, and there were other issues that required testing in cross-examination.
Therefore Master Shuman considered there was a “compelling reason for this claim to go to trial” and he did not accept that the claimants had “no real prospect of successfully establishing that the deceased had the requisite testamentary capacity to make the 2008 will”. He ordered that the claim proceed to be listed for trial.
This claim concerned a request for guidance from the court on the true construction of the will trusts created by Violet Hamblen-Thomas and on the identification of the beneficiaries.
By her last will Violet left her estate to her son Edwin on trust for life and to his children when he died. If Edwin died childless then the estate would pass to Violet’s best friend Enid. If Enid had died before Violet, the estate was to go to Enid’s daughter Victoria. Violet died in 1973. Enid survived Violet, but died in 1998. Edwin died in 2014 without any children.
The executors considered that, “since the gift to Enid was merely contingent and had not vested in her prior to Edwin's death, it fails, and since Enid did not predecease Violet, the gift over to Victoria also fails”. Essentially, even though Edwin had died without children, Enid had died before him and therefore the gift did not vest in Enid. By this approach, the gift to Victoria then also failed because Enid had not died before Violet. Victoria contended that, as a matter of construction, the gift to Enid in Violet's will did not fail. It was open to the court to construe the relevant clause in Violet’s will so that the gift to Victoria would take effect in the event of Enid not surviving Edwin, rather than her not surviving Violet, so the executors sought guidance on the correct construction of clause.
Giving his judgment in November 2018, Master Shuman concluded that Violet “must have intended the gift over to take effect in the event which actually happened, that Enid predeceased Edwin.” He reasoned that Violet and Enid had been close and life-long friends and Violet had no other close family or next of kin aside from her husband and son. He was satisfied that “had Violet been asked what should happen to the residue if Enid died before Edwin and he had no children she would have said that it should be left to Victoria” and for that reason he ordered that Violet’s residuary estate passed to Victoria.
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