Contentious Trust and Probate Quarterly Round-Up

Autumn 2018

10 December 2018

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 September – November 2018. 

Gelber and another v The Sunderland Foundation and others [2018]

The High Court has exercised its discretion under Section 57 of the Trustees Act 1925 to grant additional powers to the trustees of a settlement created by the 11th Duke of Marlborough. The trustees sought new powers (i) authorising them to pay part of the proceeds of sale of certain land held by the settlement to a charitable company whose primary object was to restore and preserve Blenheim Palace and its park for the public benefit; and (ii) modify the powers in section 36 to 40 Trustee Act 1925 so as to allow any retiring trustee to be discharged even where following the retirement there would only be a single trustee (whether or not a trust cooperation) remaining.

Chief Master Marsh concluded that the transaction concerning the land would not only improve the financial position of the settlement to the benefit of future generations of family but also benefit the beneficiaries in satisfying their obligation to maintain and conserve Blenheim Palace. As to the proposed modification to enable a sole trustee this could be regarded as being expedient, particularly in circumstances whereby it would be easier in the future for the settlement to be administered and it was accepted that there were real difficulties in finding a suitably qualified natural person to be appointed as trustee.

The application was not contested.


Moore v Moore [2018]

The Court of Appeal has allowed an appeal concerning a claim for proprietary estoppel in relation to a family farm on the ground that the first instance judge had wrongly exercised his discretion as to how the equity was to be satisfied. The first instance judge had followed the guiding principle that he should exercise his discretion “by mirroring as closely as possible the arrangements which would have obtained had the dispute not arisen”. Lord Justice Henderson said although the first instance judge had “a wide judgmental discretion” his solution was based on a false premise and that in any event he lacked sufficient information to reach a final conclusion on how the equity should be satisfied after the trial. The case has been remitted for trial on the issue of satisfying the equity (albeit the Court of Appeal did give some guidance in this regard).


Macintyre & Anor v Oliver & Ors [2018]

The High Court has given guidance on the true construction of two will trusts  including looking to the rule in Jones v Westcomb (1711) to determine whether a contingent gift could be saved in circumstances whereby the exact contingency (order of deaths) had not happened. Applying the rule, the court was able to decide what the deceased had intended should happen to the gift over the circumstances that actually happened.


Bhusate v Patel and others [2018]

The High Court has struck out a claim by the spouse of a deceased man (who died intestate in 1990) to the beneficial interest in the family home. The widow sought to argue that she was the sole beneficial owner of the property or in the alternative, that she and the defendants (the deceased’s six children) were joint equitable co-owners of the property. The claim was rejected on the grounds that the widow was not able to rely on the same facts in relation to different constructive trust claims. Chief Master Marsh said “It is impossible for the claimant to say, on the one hand, she subscribed to a common intention that she held the sole beneficial interest but on the other hand to say the common intention was entirely different. She has to put forward one case or the other”.

The widow also had a secondary claim under the Inheritance (Provision for Family and Dependant) Act 1975. The Court did agree to hear submissions in due course regarding her application to extend the time for bringing this claim, her husband having died 28 years previously.


John David Sheffield V (1) John Julian Lionel George Sheffield, Lionel Julian Sheffield & Simon Robert Alexander Sheffield (As The Executors Of John Vincent Sheffield) (2) John Julian Lionel George Sheffield (3) John Julian Lionel George Sheffield, Fergus Hugh Sterling Graham, Nicola Elizabeth Anne Graham, John Frank Ratcliffe & Simon Robert Alexander Sheffield (as past & present Trustees of the 1968 Settlement) (2018)

The High Court was asked to determine the appropriate costs order to be made following the parties reaching a compromise in a breach of trust claim.  Master Clark said that the starting point in determining the costs of accounts and inquiries ordered against a defaulting trustee was that the trustee should pay those costs. The case as a whole highlights the courts' distinctive approach to costs in trusts and probate proceedings, and is a reminder to trustees of their potential litigation costs exposure where they are in default. For more detail on this case read Ryan Mowat's blogs:  Dealing with costs in trusts and probate proceedings -  Part 1: liability for trustees and Part 2: exceptions to the general rule in probate claims.


Goss-Custard v Templeman [2018]

The High Court has dismissed an application for summary judgment pronouncing against the will of the late Lord Templeman (the Law Lord who set down the “golden rule” for drafting wills namely that “in the case of an aged testator or testator who has suffered a serious illness … the making of a will … ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”). The defendants challenged a 2008 will on grounds of lack of testamentary capacity when the instructions for the will were given and when it was executed later the same month.

Master Schuman summarised the defendants case as depending “on the hypothesis that the deceased had no good reason to make the 2008 Will other than he was putting right a wrong that never existed” and referred to the case of Simon v Byford:

”44. ... the question that divides the parties is whether a testator or testatrix must not only be capable of understanding what assets are at his or her disposal and the persons who have claims on those assets, but must also understand not simply the direct consequences but also the collateral consequences of disposing of them in one way rather than another. ...45. I do not believe that previous authority goes to the length of requiring an understanding of the collateral consequences of a disposition as opposed to its immediate consequences. Nor do I think it desirable that the law should go that far. ...”

Master Schuman considered that the case raised triable issues that required determination at trial after a judge had the opportunity to assess the evidence.


Lomax v Greenslade [2018]

The High Court has dismissed an appeal against a first instance decision in a successful claim bought by the three children of the deceased under the Inheritance (Provision for Family and Dependents) Act 1975. The deceased’s will dated 8 March 1997 had made no provision for his children bequeathing the entire estate to Ms Greenslade. The court found that Ms Greenslade should receive £69,000 (of a £699,000 estate) and that otherwise the balance of the estate should be divided three ways between the children. On appeal, Mr Justice Henry Carr did not consider there to be any basis for interfering with the judge's “extremely thorough” judgment (save the awards to the children were reduced very slightly as a result of fresh valuation evidence).


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