Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Re Estate of Norman Frederick Martin (Deceased) sub nom Maureen Patricia Martin v Joy Williams (2017)
The High Court has found in favour of Maureen Martin as the sole beneficiary of her late husband Norman Martin’s estate, who appealed against a decision of the Central London County Court concerning reasonable financial provision to be made from the estate to Joy Williams, Mr Martin’s long term partner and cohabitee.
The case was much publicised at first instance. Mr Martin died unexpectedly in 2012 bequeathing his entire estate to Mrs Martin, his wife from whom he had been separated for many years but had never divorced. At the time of his death, Mr Martin had been living with Ms Williams for 18 years but not updated his will to reflect their relationship. Mr Martin and Ms Williams home was owned by them as tenants in common and therefore on his death Mr Martin’s share in the property fell into his estate. Ms Williams made an application under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
The Central London County Court found that Ms Williams should retain an absolute interest in her home. Judge Nigel Gerard concluded that Ms Williams and Mr Martin were living as husband and wife and anticipated continuing to do so for the rest of their lives.
In the High Court, Mr Justice Marcus Smith found that Judge Nigel Gerard had made errors in assessing the parties’ financial positions and the relief granted to Ms Williams was excessive. Moreover, Judge Nigel Gerard had applied the 1975 Act incorrectly in (i) failing to apply the statutory test in determining what reasonable financial provision for Ms Williams would be; (ii) conducting a needs based assessment with respect Mrs Martin; and (iii) not considering whether Mr Martin’s limited estate was sufficient to satisfy the interests of both Mrs Martin and Ms Williams.
The appropriate order was to vest in Ms Williams a life interest in Mr Martin’s share of the property with the reversion vesting in Mrs Martin.
Ilott v The Blue Cross and Others (2017)
The Supreme Court has handed down the much anticipated judgment in the charities’ appeal from the Court of Appeal decision in Ilott v Mitson finding in favour of the charities and reinstating the award of £50,000 made by the District Judge at first instance. It was held that the District Judge had been entitled to adopt a broad brush approach and the Court of Appeal had no proper basis for interfering with the judgment.
The judgment may lead to claims by adult children slowing down in the short term. Since the original decision in Ilott (and associated publicity) we have noticed an increase in enquiries about potential 1975 Act claims by adult children and official court statistics also evidence a surge in claims under the 1975 Act. The Supreme Court decision may initially effect the public perception of an individual’s entitlement under the 1975 Act and there be an associated drop off in claims.
That being said, the Court of Appeal’s decision in Ilott by no means opened the floodgates. Claims under the 1975 Act are fact specific and would be beneficiaries should always be alerted to the balancing exercise conducted by the court with regards the financial needs of all the beneficiaries. The Supreme Court emphasised the importance of limiting awards to adult children to “maintenance” and highlighted the significance attached by English law to testamentary freedom.
MN v OP & Others (2017)
The High Court has approved a variation of a settlement to extend the perpetuity and accumulation periods and the trustees’ powers.
Mr Justice Rose considered whether the insertion of a new perpetuity period amounted to a resettlement but was satisfied that given the scope of the proposed changes – namely the duration of the settlement and an extension of the current class of potential beneficiaries – that the proposed changes did amount to a variation.
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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