Solicitors’ Delay in preparing a Will – When is it Negligent?
John Adewale Haastrup v Gloria Ngozi Okorie & Ors (2016)
The High Court considered (1) an application by the Claimant to be appointed a personal representative of the deceased’s estate; and (2) the First Defendant’s application that the Claimant’s claim regarding the alleged misuse of a power of attorney before and after the death of the deceased be struck out on grounds that the Claimant had no right to bring a claim in his own name to complain of wrongs done to the deceased’s estate. Master Matthews first considered CPR rule 19.8(1), finding that the words “person who had an interest in a claim had died” applied only to a case where the claim in question had already commenced, and then the claimant or a person with an interest in it had died (Milburn-Snell v Evans ). Accordingly CPR rule 19.8(1) did not help the Claimant in circumstances whereby the deceased died in 2012 and the claim was only commenced in 2015. Consideration was also given to whether the Claimant could maintain his claim against the First Defendant as she had constituted herself an executor de son tort on the basis that she was a “burglar” of estate assets. Master Matthews held that an executor de son tort intervenes in a an administration so as to assume the obligations of a trustee or executor whereas a burglar just wants to take the assets and run. The court struck out the claim. Further information can be found here.
Chloe Brennan v Anthony Francis Prior (2015)
The High Court has held that a Claimant’s obligation to pay the legal costs of the executors of her father’s estate following the dismissal of her challenge to his will was not limited to her legacy under that will. The Deceased died on 3 March 2011 leaving a homemade will which he had executed in hospital under which he bequeathed £100,000 to the Claimant (his daughter). The Claimant challenged the will on grounds including capacity, fraud and undue influence but it was upheld. The Claimant was ordered to pay the Defendants’ costs of the claim and counter claim, such costs to be subject to detailed assessment on the standard basis until 22 August 2012 and thereafter on the indemnity basis if not agreed. The court held that a reasonable person could not have had any doubt that the judge had decided that the Claimant would be personally liable for the entirety of the assessed costs of the defendants, without any limitation on recovery of those costs by reference to the amount of her legacy. Reported here.
Passing on inheritance to the next generation – a moral obligation?
The Times newspaper has reported that the number of will challenges by relatives “has leapt by 20 per cent in the past decade, with the younger generation believing that passing on inheritance is a moral obligation”. The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) provides that children are entitled to apply for reasonable provision from the estate of a deceased parent. Whilst recent case law has caused some to question whether the possibility of adult children making successful claims under the Act could significantly impinge on the future of testamentary freedom in England And Wales, the fact remains that the question is not whether the deceased had a moral obligation to leave money to their children or whether they ought to have done, but whether the provision made for the applicant was reasonable depending in the factors outline in section 3 of the Act.
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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