Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Patricia Marigold Bullard v (1) William Harry Bullard (2) Virginia Winifred Faire (2017)
The High Court considered a Part 8 claim for an order determining the true construction of a trust settled by the claimant on 3 September 2002 (“the Bullard Family Trust”), or alternatively rectification of the trust deed. The claimant was the settlor and one of the trustees of the trust. The defendants were two of the settlor’s children, also the other two trustees of the trust and two of the beneficiaries.
Master Matthews granted rectification of the deed of trust for the Bullard Family Trust to exclude the application of Section 31, Trustee Act 1925, which would have had the effect of depriving the beneficiaries who were not yet 18 years old when the deed was executed of their interest in the settlor’s house.
Master Mathews referred to the case of Re Butlin’s ST where Mr Justice Brightman held that “rectification was available for cases where there was a mistake as to the legal meaning of words”. Master Matthews noted that it was true that “what the claimant (and her draftsman) [were] mistaken about here was not actually the meaning of any of the words …… Instead, she (and probably her draftsman too) [were] mistaken as to the legal effect of using those words”. The settlor had thereby failing to create the intended trust, and the court had the power to rectify the deed.
Morris v Browne & Anor (2017)
The High Court has held that letters of administration should be revoked in circumstances whereby the deceased had not died intestate but had made a valid will.
The claimant in this case was the daughter of the deceased and she sought revocation of letters of administration that had been granted to the first and second defendants (also children of the deceased) when her mother died, on the grounds that there was a valid will. The claimant was the sole executor and main beneficiary under the will, which she sought to admit to probate on the basis of written evidence. She also sought an order for an account of the administration.
The application for revocation was not opposed. Mr Justice Barling found that the first and second defendants had procured the letters of administration on the basis of an inaccurate statement that the deceased had died intestate. An order on account was made on the basis of wilful default and the court found that given the circumstances of the case, in particular the fact that the defendants appeared to have been aware that the deceased had made a will when applying for letters of administration and may even have seen a copy, the claimant was entitled to her costs on an indemnity basis.
(1) Patrick James Gordon Pettigrew (2) Shaun James Bell Pettigrew (3) David Arthur Rule v Edwin Colin Neale Edwards (2017)
The High Court has refused to make a Beddoe order in circumstances whereby the trustees of a will were seeking to defend a claim by a life tenant for the payment of the income from the trust fund and to counterclaim for the repayment of a loan.
Master Matthews noted that the characterisation of claims was central to whether it was possible for the court to make a Beddoe order, and whether such an order would serve any useful purpose.
In this case, the life tenant was the deceased’s fourth husband. The three trustees making the application comprised two of the deceased’s sons and her solicitor. The former were seeking to pursue the proceedings in their capacity as capital beneficiaries under the trust.
The court held that were it to make a Beddoe order, it would risk injustice to the life tenant to the extent that it insulated them from the ordinary cost consequence of litigation.
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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