Contentious Trusts and Probate Monthly Round-Up: December 2016

4 January 2017

Jump and another v Lister and another [2016]

The High Court has held that when interpreting a Will, the "natural and ordinary meaning" of words be applied despite both parties accepting that the deceased had not intended a survivorship clause to take effect as drafted. 

The case centred on the Wills of an elderly married couple who had made mirror Wills in 2010. Both testators were found dead at home in 2011 and it was impossible to determine which spouse died first. Pursuant to section 184 Law of Property Act, the younger spouse (the husband) was deemed to have survived the elder spouse (the wife). Both husband and wife had gifted their residuary estate to each other with pecuniary legacies to be paid once on the death of the survivor. 

Both Wills included a standard survivorship clause to the effect that the estate was to be divided as if any person who died within 28 days of the deceased's death had predeceased them. 

His Honour Judge Hodge QC found that the use of the words "any person" in the survivorship clause clearly extended to include the husband. The court's interpretation resulted in the cash and specific gifts passing under both wills being effective and the beneficiaries of those legacies therefore benefiting twice. 

This case demonstrates the importance of ensuring that if a survivorship cause is included in a mirror Will, that the Will also include a remedy to provide for circumstances in which both testators die at the same time.

Re JS (Disposal of Body) [2016]

The High Court held that it had the power to make a prospective order as to who should administer a terminally ill minor's estate and arrange for the disposal of her body after her death. This highly publicised case centred on a young girl diagnosed with terminal cancer who had decided that when she died she would like her body to be transported to the USA and cryogenically frozen indefinitely. The girl lived with her mother and was largely estranged from her father. As she was too young to make a Will, she asked the court to make an order allowing her wishes to be carried out by her mother. The girl's father opposed her wishes. The order made granted the mother sole responsibility for disposing of the girl's body and making arrangements for cryogenic freezing.

Matchmove Ltd v (1) Mark Dowding (2) Jane Church [2016]

The Court of Appeal decided that an oral agreement for the sale of land was enforceable through constructive trust despite not being evidence in writing. The Court upheld the decision at first instance finding that the case was within section 2(5) of the Law of Property (Miscellaneous Provisions) Act 1989, which (so far as relevant) reads as follows:

(1) a contract for the sale of other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

(5) …. And nothing in this section affects the creation or operation of resulting, implied or constructive trusts.

In this case the parties intended the oral agreement to be immediately binding, and that agreement was complete as to all its essential terms. Moreover, the prospective buyer of the land had acted to his detriment in reliance upon the agreement. A constructive trust arose as soon as consideration was given for the land.

Adepoju v Akinola [2016]

In the course of a probate claim, the substance of which related to a dispute as to whether the defendant had been lawfully married to the deceased, the High Court directed that an independent administrator be appointed to administer an intestate estate. Pursuant to Rule 22 Non-Contentious Probate Rules 1987, the claimant, the daughter of the deceased, was the person with the highest entitlement, but the court found that it would not be appropriate to grant her letters of administration because she had deliberately lied to the court and there was a high level of mistrust and suspicion between the parties (particularly bearing in mind the public interest and the interest of creditors, who may be affected by the identify of the personal representatives).

In determining this case Master Matthews provided a useful summary of the court's approach to matters of evidence and the burden of proof. He said that ‘the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to’. 

Bathurst & Anor v Bathurst & Anor [2016]

The High Court heard an application for the amendment of a family trust to alter the provision for the appointment of new trustees. Master Matthews approved the proposed amendment provision that new trustees would be appointed by the principal beneficiary with the consent of the existing trustees. In making the change, Master Matthew found that there would not be a significant departure from the original structure given that the case was not one where the settlor had originally entrusted the appointment of new trustees to the existing trustees. The settlor, who had since died, had reserved that power to himself.

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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