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New Diversity, Equity and Inclusion changes to the Actuaries’ Code and Guidance
Jenny Higgins
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 July 2022 - September 2022.
Ramus v Holt & Ors [2022]
The High Court has dismissed a wife’s claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
Christopher Ramus (“the Deceased”) and Elizabeth Ramus had been married for 48 years by the time of the Deceased’s death in 2020 but were recently separated and living apart. The Deceased and Elizabeth had two children, Claire Holt and Alistair Ramus, and five grandchildren.
The Deceased’s will dated 30 April 2014 placed the residuary estate on trust in which Elizabeth had a life interest (“the Trust”). The trustees had power to apply capital for Elizabeth’s benefit but also power to terminate her life interest. The class of discretionary beneficiaries to benefit from the Trust aside from the life interest included Claire, Alistair and their children.
Claire was named as one of the trustees of the Trust (alongside two close friends of the Deceased). Elizabeth had a difficult relationship with her daughter and was concerned that this might influence her decision making. Elizabeth made a claim under the 1975 Act on the basis that she did not have confidence that she would receive the income and/or capital from the Trust which she would need in order to maintain her lifestyle and because her future financial security was solely down to the trustees she did not consider that the Will made reasonable financial provision for her.
Judge Mark West found that the value of Elizabeth’s personal assets was significantly more than the quantum of the Deceased’s estate and she had sufficient resources to meet her needs. The judge went on to say that in all likelihood Elizabeth would not have received anything on divorce (on the divorce cross-check) and even after the purchase of a property would have financial autonomy and substantial net assets. He concluded that he was satisfied that the disposition of the Deceased’s estate under the terms of his will was such as to make financial provision for Elizabeth in the circumstances of the case. Furthermore he was satisfied that he had no jurisdiction under the 1975 Act to remove the trustees and also considered that such a power would undermine the law concerning the removal of trustees under other statutory provisions in other areas.
Cropper v Dimberline & Ors [2022]
The High Court has found a will created after the Deceased’s death to be a forgery and that the defendants to the claim were parties to its creation or at least knew that it was a forgery.
Bernard Dimberline (“the Deceased”) died on 11 October 2017. One of his daughters, Colleen Cropper, was granted letters of administration by a grant dated 6 September 2019 on the basis that the Deceased had died intestate and sought a declaration from the Court on that basis. The Deceased’s partner of 30 years, Kim Dimberline, and her son, Mark Dimberline, had administered the Deceased’s estate according to a purported will of Mr Dimberline dated 27 May 2017 (“the Disputed Will”). Mark was named as an executor in the Disputed Will. Mark and his now ex wife, Katie, were the attesting witnesses. The Deceased had six biological children and two step children.
Ms Cropper said that the Disputed Will came into existence after the death of the Deceased and both the Deceased’s signature and Katie’s signature had been forged. Mark said that he had assisted in the preparation of the Disputed Will and that the Deceased signed the Will and both he and Katie witnessed the Deceased’s signature.
His Honour Judge Davis-White QC considered that the evidence supported the Claimant’s version of events that the Disputed Will was created when it was realised that under the intestacy rules Elaine would get nothing because she had not been married to the Deceased. The judge said that he had “little doubt” that the defendants felt that they were ensuring that the Deceased’s wishes were carried out in relation to the estate however “the law lays down formalities as to how property is to be disposed of on death and it is not for persons after a deceased's death to try and put in place documents which will give effect to what they think the deceased's intention would have been”.
Re Da Silva v Heselton Re Estate of Gladys Dulcie Townsend [2022]
The Court of Appeal has considered the effect of a charging clause in a will and upheld the High Court’s decision that it did not apply where the trustee’s profession had nothing to do with estate administration.
Clause 11 of the will of Ms Gladys Townsend (“the Deceased”) read:
"MY TRUSTEES shall have the following powers in addition to their powers under the general law or under any other provisions of this Will or any Codicil hereto:-
…
(g) for any of my Trustees who shall be engaged in any profession or business [to] charge and be paid (in priority to all other dispositions herein) all usual professional and other fees and to retain any brokerage or commission for work or business introduced transacted or done or time spent by him [or] his firm in connection with the administration of my estate or the trusts powers or provisions of this Will or any Codicil hereto including work done or business outside the ordinary course of his profession and work or business which he could or should have done personally had he not been in any profession or business."
The Deceased died on 1 July 2003 leaving a will dated 28 June 2001. She appointed Sandra Heselton and Ronald Armour who were granted probate on 2 December 2004. Ms Heselton and Armour were subsequently removed as executors under section 50 of the Administration of Justice Act 1975. Peter Brunton, a solicitor, was appointed as sole personal representative in their place. Mr Brunton subsequently challenged whether Mrs Heselton could charge for the time she had spent dealing with the administration of the Deceased’s estate.
The issue that the court needed to grapple with was whether:
(i) a trustee who happens to be engaged in a profession or business can charge for all work done or time spent on the administration of the estate, irrespective of whether that had any connection with their profession or business (the wider view); or
(ii) they can only charge for services rendered to the estate in the course of their profession or business (the narrower view).
Lord Justice Nugee endorsed the conclusion of the trial judge that the narrower view was the correct one:
"a trustee or executor can rely upon the charging clause in the Will to charge for work done or time spent in the administration of the estate only if that work falls within the scope of their profession or business in question; that is to say if it is work of a type which would attract or incur their usual professional fees."
Laird v Simcock & Othrs [2022]
The High Court has refused a claim seeking rectification of a deed of appointment on the basis that the claimant had failed to show to the level of “convincing proof” that the trustees had the true intention alleged.
Robert John Simcock (“the Deceased”) died on 26 December 2018. He left a will dated 6 May 2009 appointing Clare Laird, a solicitor, and Catherine Simcock, the Deceased’s widow, as executors and trustees. The claim sought rectification of a deed of appointment dated 31 December 2019 (“the Deed”) which was said to have mistakenly provided that the income of the entire fund should be paid to Ms Simcock during her lifetime. The intention was said be to apply the income interest to just non-IHT relievable property but a clerical error had been made by the solicitor that drafted the will.
Mater Clark considered the principles to be applied when considering rectification of a unilateral document such as a deed of revocation (Racal Group Services Limited v Ashmore [1995] STC 115):
1. the claimant’s case should be established by clear evidence of the true intention to which effect has not been given in the instrument;
2. there must be a flaw in the instrument which does not given effect to the intention;
3. the specific intention must be shown;
4. there must be an issue capable of being contested.
The Master considered the effect of Ms Laird’s evidence to be that when executing the Deed she had no knowledge of what was intended to be achieved by it and concluded that she lacked any relevant intention when executing the Deed. He felt that Ms Simcock’s evidence fell short of showing the specific intention.
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.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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