Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Bernice Elliot v (1) Ruth Simmonds (2) Alan Tulip (Executor of the Estate of Kenneth William Jordan, Deceased) 2016
The High Court has made an adverse cost order against the daughter of multi-millionaire Kenneth Jordan (“the Deceased”) who insisted that her father’s will be proved in solemn form - and for that purpose invoked her right to cross examine the attesting witness - despite not raising a positive case in challenging the validity of his will. In this much publicised case, the Deceased had bequeathed his entire estate to his partner having cut his daughter out of his will a matter of months before he died. His daughter sought to argue that there was no reason why the Deceased should have extinguished this legacy and that he was not of right mind when he did so. She submitted that the solicitor who had drafted the will had also failed to make detailed attendance notes. The court found that the daughter had no reasonable ground for opposing the will and ordered costs against her from the point at which she had sufficient material to form this view.
Bainbridge and another v Bainbridge 
The High Court has found that transfers into trust (which had triggered disastrous and unexpected tax consequences) could be rescinded for mistake using equitable tracing. A father and son who farmed in partnership had transferred several pieces of land in to a discretionary trust without realising that the transfers would lead to a substantial capital gains tax charge. They successfully applied for rescission of the transfer on the grounds of mistake, applying the principle in Pitt v Holt .
TM v AH 
The High Court has considered an application that the trustees of trusts based in the British Virgin Islands and Switzerland be joined to English proceedings, in which a wife was applying to vary both trusts on the basis that there are nuptial settlements. The settlor of the trusts was the husband and at one point both husband and wife were beneficiaries but at the time of the application both had been irrevocably excluded. Mr Justice Moor held that the trustees should be joined asserting “I consider it a tenet of article 6 of the European Convention on Human Rights that requires a fair trial that trustees should be joined before a court varies the trusts of which they are trustees. It is hard to see how a court can make such an order without them being parties to that litigation, let alone to say that such a variation is binding on them in such circumstances”.
Should you wish to discuss a disputed Will or Trust, please do not hesitate to contact our Wills, Trusts and Inheritance Disputes team.
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