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 December 2018 – March 2019.
1. Whittaker v Hancock  EWHC 3478 (Ch)
The High Court has determined that a property and financial affairs attorney is able to administer an estate on behalf of a donor who has lost capacity as a personal representative of her late husband’s estate.
The attorney bought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as a substitute personal representative in place of her mother who lacked capacity to consent to this. Her mother was the sole beneficiary of the estate.
The deceased’s daughter (by his first wife) argued that the scope of the power of attorney was restricted to the donor’s property and financial affairs and did not extend to dealing with the deceased’s financial affairs. Master Shuman said:
"There are no conditions or restrictions specified in the instrument. The scope of the claimant's authority is therefore only subject to the provisions of the Mental Capacity Act 2005, specifically the principles under section 1 and acting in best interests under section 4, and any excluded decisions under the act. ”
Master Shuman made clear that the position may have been different had the donor not also been the sole beneficiary under the Will.
2. Wellesley v Wellesley & Ors  EWHC 11 (Ch)
The High Court has rejected an adult child’s claim under the Inheritance (Provision for Family and Dependants) Act 1975 against her late father’s estate.
In this much publicised case, Lady Tara Wellesley, the estranged daughter of the seventh Earl Cowley, sought to argue that the £20,000 pecuniary legacy bequeathed to her by her father was not reasonable financial provision. Lady Tara submitted that the estrangement with her father came about because she had been forced out of the family at a young age by her father’s second wife. However, Deputy Master Linwood found that Lady Tara was able to support herself financially and that she was solely at fault for the estrangement with her father pointing to her “disruptive behaviour” and lifestyle of “drink, drugs and bohemia” as the reason.
3. McDonald v Rose  EWCA Civ 4
The Court of Appeal has refused permission to appeal a decision made in a proprietary estoppel claim.
There were two aspects to the appeal decision: (1) the claimant (Mr McDonald)’s application for an extension of time to file his appeal: and (2) the substantive permission application.
On 7 March 2018, a draft judgment was circulated to the parties and the parties were notified that their attendance was not required when the judgment was handed down on 9 March 2018.
On 8 March 2018, Mr McDonald's solicitors wrote to the court explaining that he was considering seeking permission to appeal and asking the judge to adjourn the hearing to enable their client to apply for permission to appeal. Mr McDonald’s solicitors did not seek any extension of the default 21-day time limit provided for in CPR 52.12 for filing an appellant's notice with the Court of Appeal.
On 9 March 2018, the judge handed down his written judgment (in the absence of the parties). The judge inserted an additional paragraph in his judgment, ordering written submissions on consequential matters "within 14 days of the handing down of this judgment [i.e. by 23 March]".
On 23 March 2018, the parties filed their written submissions.
On 18 April 2018 the judge refused permission to appeal.
On 9 May 2018, Mr McDonald filed his appellant's notice. This was the last possible day if the 21 days commenced on 18 April 2018, but it was out of time if the 21 days started on 9 March 2018. On 21 May 2018, the applicant sought to retrospectively extend the 21 day period should it be necessary.
The court found that the date of the decision for the purposes of CPR 52.12 was the date of the hearing at which the decision was given (whether at the time or at a later hearing when judgment was handed down).
As to the substantive application, the court concluded that the appeal would have no real prospect of success. Lord Justice Underhill said:
"the applicant can show no grounds on which an appeal against the judge's findings of fact, made after a trial with a large cast of witnesses giving oral evidence over five and a half days, has any real prospect of success. In our view, the judge with commendable speed produced a judgment that fairly assessed the conflicting evidence and circumstances and came to a clearly reasoned conclusion that is not open to any legitimate challenge”.
4. Blyth v Sykes  EWHC 54 (Ch)
The High Court has admitted a certified copy of a Will to probate despite contention by the claimant that the will had been revoked by destruction by the deceased.
When the deceased died in January 2016, an envelope was found in her possessions containing (i) a certified will executed on 11 April 2008; (ii) an unsigned draft of the will; (iii) an invoice from a firm of solicitors Banks Carrington and (iv) an original codicil.
The Claimant sought to argue that the Will had been destroyed by the deceased and that is why it was not in the envelope. She said that she had been informed by the deceased in 2015 that she had torn up her will because she wanted the claimant and the claimant’s brother to “get it all”.
His Honour Judge Saffman determined that the presumption in favour of revocation did not arise and it was therefore appropriate to propound in favour of the Will (or at least the certified copy).
5. LCN v CJF  EWCOP 1
The Court of Protection has authorised the settlement of a protected party’s property on trust following an application made under section 18(1)(h) Mental Capacity Act 2005.
CJF was born on 2 October 2005 and died on 4 December 2018. The section 18 application was made on 20 November 2018 and heard urgently on 26 November 2018. At this time it was known that CJF only had a couple of weeks to live.
CJF had a traumatic birth resulting in extensive injuries and required 24 hour care. CJF’s father denied paternity and played no role in his upbringing. At the time of his death CJF was living with foster carers in a specially adapted home paid for by him. CJF had received significant compensation following a medical negligence claim against the hospital trust responsible for his birth.
Under the rules of intestate, CJF’s assets would be divided equally between his parents. CJF’s foster carers would receive nothing.
The section 18 application sought settlement of CJF’s assets (including his home) on revocable trust for him during his lifetime and thereafter for the property to go to his foster family and the residue of his estate to his mother.
Deputy Judge Beckley concluded that it was in CJF’s interests for the property to pass to his foster carers, who “loved and cared for him” and the residue to pass to his mother, who had “looked after him in the early stages if is life” and “suffered long-term medical consequences as a result of the complications at his birth”. The execution of the trust was duly authorised.
6. T v V  EWHC 214 (Fam)
The High Court has refused an application for an interim payment sought under the Inheritance (Provision for Family and Dependants) Act 1975.
The claimant asserted that she had been in a sustained romantic relationship with the deceased since 2001 with significant periods of cohabitation and that he had supported her financially.
Mrs Justice Lieven considered that the claimant had failed to satisfy the burden to show immediate financial need. As to the merits of the claim the judge considered there to be “clearly arguable points on both sides and that the defendants have arguable points to be made against the claimant having an entitlement”. In these circumstances Mrs Justice Lieven considered that it would be “wrong to make an order under section 5 … where there is absolutely no security or even very much likelihood that it would be repaid”.
It is of note that the application was made by the claimant on the basis of her need to pay legal fees.
7. Kohli v Proles  EWHC 193 (Ch)
The High Court has refused permission to appeal from the order and judgment of Master Clark in which she found that a man born in India, who was also living there at the time of his death in 2015, was still domiciled in the England and Wales.
The appellant’s principal arguments were summarised and broadly dealt with by Mr Justice Mann as follows:
The Master failed to make a finding that the deceased ever had his sole or chief residence in the UK
Whilst Master Clark made no explicit finding about this particular point, she clearly had it in mind when reaching her overall conclusions. Mr Justice Mann also noted that “A series of temporary homes, occupied while they were redeveloped to be sold at a profit, is not inconsistent with an intention to make England and Wales a person's "sole or chief residence".
There was no proper finding as to where the deceased "wished to spend his last days”
Master Clark clearly found that the deceased did not intend to cease from living permanently in England having retained his residential connections. He therefore had not abandoned his domicile of choice. The fact the deceased had no life left to live was not inconsistent with Master Clark’s findings that the deceased intended to return to England.
A failure to give any or any proper effect to the fact that the deceased would not have been allowed re-entry into England and Wales once he had left for India in 2015
Whilst the point was not dealt with in the Master’s judgment and it is not an irrelevant point, the Master did make a finding that the deceased intended to return for a medical appointment. That finding was inconsistent with the suggestion that the deceased knew that he would not be able to re-enter the country and by association must have intended to abandon his English domicile.
Fixing 2010 as the date at which a domicile of choice had been established and failing to take into account subsequent events, and in particular the events late 2015, in considering the domicile of choice point
It was not clear why Master Clark had chosen 2010 as the date at which a domicile of choice had been established but it did not matter in the context of the judgment. Master Clark had received evidence about later years ad come to her conclusion in the light of that evidence.
8. In the Matter of Alexander Shedden Ninian (deceased) sub nom Sarah Marie Ninian v (1) Graham Alexander Findlay (2) Alastair Ian Findlay (3) Matthew David Miller  EWHC 297 (Ch)
The High Court has ruled that a widow who went with her husband to his assisted suicide at Dignitas in Switzerland is able to inherit from his estate.
The widow had made an application for relief against forfeiture under section 2 of the Forfeiture Act 1982 on the basis that her actions might have encouraged or assisted her husband to commit suicide.
Chief Master Marsh considered that the forfeiture rule was engaged but was satisfied that the case “provide a compelling case for the court to exercise it power to grant full relief”.
Chief Master Marsh emphasised the sensitivity of the court’s discretion under the Forfeiture Act due to the interplay of different elements of the justice system. He considered the decision by the CPS not to prosecute the widow to be an important factor. He also noted that whilst in this case the claim was not opposed and could be dealt with in a short disposal hearing it is unlikely that the court would ever be able to deal with a claim of this type without oral submissions from counsel and, in the event that such a claim was opposed, a directions hearing would be needed for the court to determine what witnesses were required to attend for cross examination, and whether the hearing should be before a Master or High Court judge.
9. Cowan v Foreman  EWCH 349 (Fam)
The High Court has dismissed an application to extend the 6-month limitation period for a claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.
Mr Justice Mostyn found that there were no good reasons for justifying the delay (amounting to an aggregate period of 13 months) and that the claimant did not have a real prospect of success. It is of note that he was also highly critical of using stand-still agreements in 1975 Act claims. He said:
"If it is indeed common practice (to use a stand-still agreement), then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention.”
For more detail on this case see this blog by Laura Phillips, What if you’ve been left an inheritance, but not in the way that you want?