Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Patel v Patel & Ors 
The High Court has granted permission to bring contempt proceedings following a decision in probate proceedings that a will had been forged. In the earlier proceedings the court had dismissed the claim and ordered indemnity costs. The claimant was found to have lied when he gave evidence. His brother sought to bring contempt proceedings against him and other witnesses in the probate action on the grounds that they had been part of a conspiracy to mislead the court when they gave their evidence because they had knowingly made false statements about the execution of the deceased’s will.
Mr Justice Marcus Smith noted that when making an application for permission to bring contempt proceedings the court had to be satisfied that (i) there was a strong primae facie case, without going into the merits of the case (ii) that it was in the public interest for the committal proceedings to be brought (iii) that such proceedings were proportionate and (iv) in accordance with the overriding objective. The judgment in the probate proceedings satisfied the requirement for a strong prima facie case. It was unequivocally in the public interest for the committal proceedings to be brought in circumstances whereby a deliberately false case had been put to the court. Such proceedings were proportionate, in the public interest and in accordance with the overriding objective.
Frank Edwin Keeling (by his litigation friend Christopher Godfrey Clifford) v (1) Stephen Edward Keeling (2) Estate of Doreen Rita Keeling in Re the Estate of Ellen Elizabeth Exler (Deceased) 
The High Court has found that the requirements for a deathbed gift had not been satisfied by the testator. The national press reported that the deceased’s brother, Stephen Keeling, was “slammed” by the Judge, Charles Hollander QC, who said that he had a “shameless sense of entitlement” and was “content to shamelessly ride roughshod over the rights of other family members who had a contrary interest” (http://www.telegraph.co.uk/news/2017/05/24/pensioner-86-hatched-shameless-plot-cheat-elderly-brother-900k/).
The deceased had died intestate in 2012 and, in the absence of a surviving spouse or children, her estate passed to her brothers Stephen and Frank pursuant to the rules of intestacy. The deceased’s estate was comprised primarily of a property, which Stephen said had passed to him by way of a deathbed gift.
The court considered the three requirements of a deathbed will, namely (i) the donor had contemplated impending death (ii) the donor had made a gift which would only take effect if the contemplated death had occurred and until then the donor can revoke the gift and (iii) the donor gives dominion over the subject matter of the gift to the recipient. In this case Charles Hollander QC found that the requirements for a deathbed gift had not been satisfied. He did not accept that the deceased ever made the statement that Stephen relied on. There were contradictions concerning the timing of the purported gift and the deceased had in any case not contemplated her death at the time the alleged deathbed gift was made.
Annual statistics for Trusts, Wills and Probate released
The annual statistics for The Royal Courts of Justice, January to December 2016 were released on 1 June 2017. The figures show a significant increase in the number of claims issued under the Inheritance (Provision for Family and Dependants) Act 1975, from 116 claims made in 2015 to 158 claims in 2016. Disputes relating to Trust property have also increased considerably, from 141 claims made in 2015 to 201 claims made in 2016. Another area of increase in claims is for breach of fiduciary duty, from 69 in 2015 to 100 in 2016. Not all categories of disputes for trusts, wills and probate have increased. Variation of trust claims have reduced from 46 claims in 2015 to just 17 cases in 2016. For more information please see our earlier blog.
Should you wish to discuss a disputed Will or Trust, please do not hesitate to contact our Wills, Trusts and Inheritance Disputes team.
Alternatively, please visit our Wills, Trusts and Inheritance webpage, or for more information, read our frequently asked questions on wills, trusts and inheritance disputes.
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