Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The Court of Protection has allowed a statutory wills appeal. It was common ground that the protected party, an 86 year old widow (JKS), lacked capacity to make a will and to litigate. Her husband had died in 2009. They had two sons - the Appellant (ADS) and the First Respondent (DSM). JKS had previously pursued proceedings against ADS (and his wife) in the Chancery Division concerning the transfer of some land by her late husband. It was alleged that ADS had exercised undue influence over his father. By the time a settlement was reached, JKS lacked capacity to litigate and a litigation friend had been appointed necessitating approval of the settlement by the court. The transfers were set aside and the land vested in JKS. A declaration was made to the effect that a deputy for property and affairs be appointed for JKS and that a statutory will be applied for in the Court of Protection such that JKS's estate be divided 50/50 between ADS and DSM. The Court of Protection subsequently made a statutory will dividing JKS's estate between ADS and DSM at a ratio of 25/75. ADS appealed on the grounds that the Court of Protection erred in principle and further or alternatively failed to take relevant features of the case in to account including the approach to the settlement reached in the Chancery Division proceedings. The appeal was allowed. Mr Justice Charles said that one of the lessons learnt from this case should be that:
"when a settlement of civil proceedings is approved on behalf of a protected party who will or may become the subject of proceedings before the COP, the need to consider carefully what should be explained to a civil court asked to approve the settlement on behalf of P, what that court should be invited to consider and explain about its approach to the approval of the settlement, how that is to be recorded, whether the settlement is dependent on a particular outcome in the COP and more generally how the COP will be invited to approach the settlement that P has entered into with court approval, how P's wishes and feelings (as a protected party) about the settlement should be sought and recorded, and who the likely parties to the COP proceedings will be".
The national press were quick to pick up a recent judgment in the Mayor's and City of London court concerning a forged will. A young widow claimed to have found a will hidden inside a discarded bag of Dorito crisps in the attic of the deceased's home. It was reported that Judge Nigel Gerard said that the story concocted by the deceased's widow was "ridiculous". The judge dismissed the challenge and declared the forged will invalid. Read more on forged and fraudulent wills here.
The High Court (Manchester District Registry) has ordered rectification of a company’s register of members under section 125 of Companies Act 2006 to add executors in the place of a deceased member until a grant of probate had been obtained and the executors proved their title. Mr Justice Hodge QC said that the circumstances in the case were exceptional – the company had no acting officers and delay would damage the company’s prospects – and emphasised that the case would not constitute precedent for “for the more ordinary run-of-the-mill type of case where the company still has shareholders and directors able to act”.
The High Court has found that a final charging order against a property had been validly made where the sole legal owner of the property, as evidenced by the Land Registry title, had brought proceedings in his capacity as a trustee of the property under the Charging Orders Act 1979. The wife of the legal owner had appealed against the final charging order asserting that as the 100% beneficial owner of the property following an express declaration of trust between her and her husband in 2008, she was the only trustee and that she had been unaware of the proceedings and did not authorise them. Mr Justice Morris said that the allegation made by the wife did not stand; the husband had been acting in his capacity as legal owner and thus trustee of the property. The wife’s beneficial interest was irrelevant to the nature of the legal relationship.
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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