Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Ahmed & Anor v Ahmed & Ors 
The Court of Appeal has dismissed an appeal of a decision pronouncing against the validity of a will on the grounds that a late amendment to the particulars of claim to include an allegation of forgery amounted to a procedural irregularity. The appellants, the deceased’s five children from his first marriage, asserted that in permitting the respondents, the deceased’s two children from his second marriage, to put forward a new case put them at a significant disadvantage and denied them the proper opportunity to deal with the allegations. Lord Justice Moore-Bick and Lord Justice Vos found that it had been appropriate to permit a last minute amendment where the appellants had not been taken by surprise or disadvantaged by the amendment, the effect of which was simply to bring the respondents case in line with what they had been arguing in the run up to the trial.
Alan Hamilton v (1) Carolyn Hamilton (2) Douglas Smith 
The High Court has dismissed a claim that the assets held by Liechtenstein foundation should form part of the deceased’s UK estate because (1) it had been set up as a vehicle for tax evasion (2) it had operated as a sham and (3) it could be inferred that deceased was beneficial owner of the assets held by the foundation as a consequence of his day to day involvement in its operation. The deceased was a holocaust survivor who had fled Germany in 1938 and set up home in the UK. He died a wealthy man leaving the residue of his estate to his son and daughter in equal shares. His son issued proceedings after discovering that his sister’s share in the Liechtenstein foundation was worth more than his. Mr Justice Henderson found that (1) that there was insufficient evidence to demonstrate that the deceased’s primary intention in establishing the foundation had been to evade UK tax – the real motive was to establish an escape fund for himself and his family were history to repeat itself (2) the validity of the foundation would be determined in accordance with Liechtenstein law and (3) it could not be inferred that the board of the foundation had abdicated responsibility or that it was a mere nominee that had been willing to comply with the deceased's requests without independent thought.
Herring and another v Shorts Financial Services LLP 
The County Court has said that a solicitor was negligent when drafting a will for his client, leaving two of the beneficiaries £62,500 short of what was intended for them. The comments were made in the context of a negligence claim against a financial adviser who had advised the deceased to set up a loan trust for tax purposes but allegedly failed to sufficiently explain how it would operate in practice. Judge Behrens held that the financial adviser did not have a duty of care to the claimants as he had not been involved in the will-making process but, despite the claimants having already compromised their claim against the law firm that prepared the will, concluded that the solicitor was in breach of his duty of care to the testator and claimants. The solicitor had failed to make sufficient enquiries to satisfy himself that the relevant trust monies would in fact pass to the claimants on the testators death.
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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