Contentious Trust and Probate Quarterly Round-Up: Q1 2020

Q1 2020

3 April 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 January 2020 - March 2020.

Weisz v Weisz, 2019 EWHC 3101 (Fam)

An application for interim provision pursuant to section 5 of the Inheritance (Provision for Family and Dependants) Act 1975 has been successful in the Family Division of the High Court. 

The Deceased had left his wife his half share in the matrimonial home. His net estate for the purpose of the Inheritance Act was worth not less than £4,088,336. The Deceased’s widow sought monthly payments from the estate of £8,511.78, a lump sum of £20,000 to discharge a loan and a payment of £55,578 for her legal fees.

Mr Justice Francis considered it to be clear that he had the discretion to order both periodic payments and lump sum payments.

Mr Justice Francis rejected the widow’s claim for £20,000 to repay the loan. She was awarded the full amount of her legal fees (albeit concern was expressed at the level of all parties’ fees) and £5,200 per month pending the conclusion of her substantive claim. In relation to the latter, Mr Justice Frances closely analysed the sums claimed by the widow as necessary to meet her “immediate need” making some significant reductions including to interior/exterior decoration of the property, clothes and shoes and holidays.


Kingsley v Kingsley, 2020 EWCA Civ 297 Ch

The Court of Appeal has upheld a decision considering the scope of the court’s discretion under sections 14 and 15 of the Trusts of Land and the Appointment of Trustees Act 1996 (“TOLATA”).

At first instance, the High Court determined that the surviving partner to a sibling farm partnership should be given a two month option to purchase the farm land before putting it for sale on the open market. Roger and Sally Kingsley ran the generations-old family farm together up until his death in June 2015 when his interest passed to his widow, Karim Kingsley. Karim sought an order for sale of the farm under the TOLATA however, Sally wished to continue running the farm and therefore to be given the opportunity to acquire Roger’s interest before it was sold on the open market.

In exercising his discretion to make the order Deputy High Court Judge Lance Ashworth QC took into account various factors including that he was being asked to make an “unusual” order, only a sale on the open market would provide a definitive test as to the worth of the farmland, the purpose of the trust was so that the land could be farmed by members of the Kingsley family and Karim’s interest was now purely financial. 

The Judge acknowledged that it was “quite possible that other tribunals hearing the same evidence … might quite reasonably come to another conclusion”. However the Court of Appeal considered that the Judge had exercised the discretion entirely appropriately.


Thakare v Bhusate, 2020 EWHC 52 Ch

The High Court has upheld the decision of Chief Master Marsh at first instance to allow the Deceased’s widow, Mrs Bhusate, to make an application pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 more than 25 years out of time.

Mrs Bhasate was the Deceased’s third wife. They were married in 1979. The Deceased had five children from his first marriage and one child with Mrs Bhasate. He died intestate in April 1990. Mrs Bhasate was entitled to a statutory legacy of £75,000 and a life interest in half the estate.

The Deceased’s main asset was the matrimonial home where Mrs Bhasate and her son continued to live after his death. Mrs Bhasate entered into discussions with her step children about the onward distribution of the estate but no agreement was ever reached and the property was never formally transferred to her.

At first instance, Chief Master Marsh had granted permission partly on the basis that Mrs Bhasate’s step children had been obstructive when she sought to the sell the property. The High Court concluded that it was not appropriate to interfere with the Master’s decision and also noted the lack of co-operation from the step children.


Kelly v Brennan, 2020 EWHC 245 Ch

The High Court has granted a claim for rectification of a will as a result of a clerical error pursuant to section 20(1) of the Administration of Justice Act 1982. The Deceased’s will executed in July 2010 divided his residuary estate into ten equal shares. The court accepted that this was not reflective of the Deceased’s intention and that what he had really intended was that his residuary estate be divided equally between his six siblings with his predeceased sister’s share passing to her five children.

It is of note that the court made this decision irrespective of the fact the Deceased’s Will was made in Ireland. The Deceased was found to have been domiciled in England both at the time of making his will and when he died in 2014. Master Shuman said that it made “sense for the law of the deceased’s domicile to determine issues of essential validity and construction, in respect of movables, including this claim for rectification”.


Goss-Custard v Templeman, 2020 EWHC 632 Ch

The High Court has upheld 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 (Lord Templeman’s son and his son’s wife) challenged the will (executed in 2008) on grounds of lack of testamentary capacity when the instructions for the will were given and when it was executed later the same month.

Mr Justice Fancourt held that there was “no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”. He noted that “Given Lord Templeman’s reputation, his evident intellectual resources even at that age and the perfectly rational terms of the new will on the face of it, I do not find it surprising (the Golden Rule notwithstanding) that [his solicitor’ decided not to enquire further or suggest that Lord Templeman be medically assessed, though of course this litigation demonstrates he should have done”.

For a more detailed analysis of this case, please see my colleague Anna Metadjer's earlier blog.


Guest v Guest, 2020 EWCA Civ 387 

The Court of Appeal has dismissed an appeal in a farming dispute case, involving a proprietary estoppel claim.

Tump Farm had been in the Guest family for three generations. Andrew Guest left school when he was 16 years old and worked at the farm for over 30 years. In October 1981, Andrew’s parents made wills designed to ensure that Andrew and his brother would inherit Trump Farm and its business in equal shares. However, by 2015 relations between Andrew and his parents had significantly deteriorated and he subsequently stopped working and moved away from the farm. In May 2018 Andrew’s parents made new wills excluding Andrew from any entitlement.


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