Contentious Trust and Probate Quarterly Round-Up Summer 2018

17 September 2018

Thompson v Thompson [2018]

The High Court was asked to determine whether a proprietary estoppel operated in favour of the youngest of five children, the only son, such as to give him an interest in the family farm.

The son’s case was broadly that throughout his working life at the farm, his parents had made representations, promises and assurances that on their death the farm would be his and he acted in reliance on what had been said to his detriment.

The father died in August 2012. The mother is still alive and was the defendant in the claim asserting that no representations were ever made to her son about any inheritance.

The son was successful in his claim. His Honour Judge Davis-White QC (sitting as a Judge of the High Court) was satisfied that the representations, promises and assurances had been made and that the son had relied on these promises to his detriment.

The Judge was relatively scathing of the quality of evidence on behalf of the mother, in particular her evidence which he agreed with counsel for the son amounted to an “attempted character assassination”. The Judge noted that the evidence from the son’s witnesses was “credible, truthful and reliable” illustrating the importance of witness evidence on the outcome of these types of proceedings.

The Court of Protection has seen a significant increase in suspect LPA abuse cases

It has been widely reported that in the last financial year the Court of Protection has seen a 45 per cent increase in the number of investigations into the actions of attorneys and deputies in England and Wales. This information was obtained by Royal London through a Freedom of Information request.

Banfield v Campbell [2018]

The High Court has granted a cohabitant a life interest in one half of the net proceeds of sale of the deceased’s house following a claim for reasonable financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

The deceased, Mrs Campbell, had left the majority of her estate to her adult son. Mrs Campbell made a bequest of £5,000 to Mr Banfield, who was disabled and had no home of his own, with whom she had been in a relationship for more than 20 years.

Mr Banfield submitted that insufficient provision had been made and that he required a capital sum to purchase alternative accommodation adapted to meet his specific mobility needs.

However, Master Teverson refused to confer any of the estate’s capital on Mr Banfield noting, in particular, that as confirmed in Ilott v Mitson [2017] “it is not the purpose of an award of maintenance under the [1975] Act to confer capital on the claimant. The relationship between Mr Banfield and the Deceased did not bear any children. There is no reason why the estate should provide Mr Banfield with a property to pass on to his relations”.

Gee v Gee and another [2018]

In another high profile proprietary estoppel claim arising in relation to a family farm, the High Court has found in favour of one of the farmer’s sons who had been cut out of his promised inheritance that he would take over the farm on his father’s death despite having worked on the farm for around 30 years and sacrificing his own career in reliance on what his father had told him.

There was no dispute about the fundamental legal principles.  The Honourable Mr Justice Birss referenced Lord Walker inThorner v Major [2009] 1 WLR 776, HL as follows:

"29. My Lords, this appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007), p 101) has recently commented: "There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither)." Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance ….."

He also cited Davies v Davies [2016] EWCA Civ 463 and Gillett v Holt [2001]Ch 210 by way of general principles.

Gupta v Gupta & Othrs [2018]

On 13 June the High Court handed down judgment in the case of Gupta v Gupta & Othrs, a claim brought by Rakesh Gupta who alleged that his late mother’s will (which favoured Rakesh’s younger brother, Naresh) was invalid due to lack of knowledge and approval. This firm acted for Naresh in successfully defending the claim, with Mr Charles Hollander QC sitting as a Deputy High Court Judge concluding that Rakesh had not shown any suspicious circumstances in relation to the testatrix’s knowledge and approval of the will. For further information see Kate Salter's blog, Knowledge approval claim fails because the circumstances surrounding the will were not suspicious.

(1)Alfred Christopher John Chaston (2) Judith Ann Arnold v Robert Anthony Chaston [2018]

The High Court has found on an appeal from the County Court that there had been no error of law or procedural injustice on the part of the trial judge in relation to proceedings bought pursuant to the Trusts of Land and Appointment of Trustees Act 1996 (“TLATA”).

Mr and Mrs Chasten had left their family home to their four children. Mrs Chaston’s beneficial half share first passed on her death to a discretionary trust with her four children as equal beneficiaries. Mr Chaston’s half share went directly to each of the four children in equal shares when he subsequently also died.

One of the children bought another child’s share and then wanted to purchase the remaining half share from his other two siblings. The sale was agreed in principle but the two siblings selling their shares felt that the property should be sold on the open market whereas the sibling purchasing the property wanted to do so at a price to be determined by a valuation exercise. Consequently, he made an application to the court pursuant to section 14 of TLATA:

“(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.

(2) On an application for an order under this section the court may make any such order—

(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b) declaring the nature or extent of a person’s interest in property subject to the trust,

as the court thinks fit.

(3) The court may not under this section make any order as to the appointment or removal of trustees.

(4) The powers conferred on the court by this section are exercisable on an application whether it is made before or after the commencement of this Act.”

The applicants sought to argue (amongst other things) that the court had no power under section 14 to direct the sale of the property to only one of the beneficiaries and that the trustees were obligated to obtain the best possible price for the sale of the property and this could only be done through a sale on the open market.

His Honour Justice Matthews dismissed the appeal. He concluded:

“I am satisfied that the district judge did not make any errors of law, nor act unjustly in the procedure that he followed. I am further satisfied that, in exercising the discretion under section 14 of the 1996 Act, he took into account all the matters which he should have taken into account, did not take into account anything which he should not have taken into account, and that his decision cannot be stigmatised as "wholly wrong", so as to enable the court to set it aside. On the contrary, in my judgment it falls well within "that generous ambit within which reasonable disagreement is possible" (Tanfern, [32]).”


Millar v Millar [2018]

The High Court has applied the will construction principle established by the Supreme Court in Marley v Rawlings [2014] UKSC to a family trust deed. Mr Justice Matthews said that “there can be no reason to suppose that the construction of a family trust deed …. Should be construed along different lines”.

The claim arose as a consequence of contradictory wording of separate clauses in a lifetime trust; two clauses afforded the settlors an interest whereas another clause excluded them from receiving any benefit from the trust.  The solicitor who had drafted the lifetime trust gave evidence to the effect that the latter should not have been included.

Mr Justice Matthews was tasked with identifying the intention of the parties. He said that he was satisfied that the settlors never intended to permanently deprive themselves of trust property

Ubbi v Ubbi [2018]

The High Court has considered a claim bought by two minor children pursuant to the Inheritance (provision for Family and Dependants) Act 1975.

In reaching her decision, Master Schuman considered each of the factors under Section 3 of the 1975 Act and in particular focused her attention on the additional matters to take into account in claims brought by minor children as set out in Section 3(3).

A final lump sum of £386,290.60 was awarded. The case provides useful guidance on the application of the 1975 Act in relation to claims bought by minor children and a reminder as to the importance of updating your will. For further information see blog, Minor children and reasonable financial provision.

PBC v JMA [2018]

The Court of Protection has authorised a son acting as sole attorney for his mentally incapacitated mother to make gifts together exceeding £7 million for the primary purpose or reducing inheritance tax liability. Whilst Judge Caroline Hilder described the application by the son as “self-serving”, she was satisfied that it was in the best interests of his mother.

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