Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The High Court has held that a 1946 will trust that did not include adopted grandchildren within a class of beneficiaries discriminated against the adopted grandchildren’s rights under Article 14 of the European Convention on Human Rights (“the Convention”) in conjunction with Article 8 of the Convention.
Under his will dated 6 May 1946, Henry Hand (who died in 1947) left the residue of his estate to his three children in equal shares for life with the remainder to such of their children who attained the age of 21 in equal shares. The Claimants were the adopted children of one of the deceased’s sons. The Claimants accepted that the law in force at the relevant time – the Adoption of Children Act 1926 – precluded them from any entitlement but sought to argue that their respective Convention rights should override the discriminatory nature of the domestic law so that they were treated as equals with the deceased’s birth grandchildren.
Mrs Justice Rose agreed finding that the reference in the deceased’s will to the child or children of his children includes any adopted grandchild and so included the Claimants.
The High Court found that a settlement agreement reached in relation to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 was void for common mistake. The claim had been bought following a purported intestacy but a valid will was subsequently discovered under which the Claimant received more than under the settlement agreement.
The government had dropped plans to increase the cost of obtaining a Grant of Representation/Grant of Probate before the election. The proposed fees were to be applied on a scaled basis in line with the value of the estate. An estate valued at over £2 million was to incur a fee of £20,000. There is currently a flat fee of £155 for professionals and £215 for individuals. Considerable concern has been expressed as to how executors were expected to fund the grant when access to funds/assets would be limited (a grant is usually required to prove the personal representatives’ authority to administer an individual’s estate when they die). It will be up to the next government whether to go ahead with the plans.
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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