Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Ramsey v Ramsay  All ER (D) 32
The High Court considered an application from a disgruntled son about his mother’s Will. It considered the mother’s testamentary capacity and whether her ability or inability to read and write had any impact on the validity of the Will. The court found that the mother did know and approve the contents of her will which was read out and explained to her by her solicitor in a language that she could understand. The case highlights the importance of clearly explaining a Will to the testator and ensuring that an accurate record is made. Read more about this case.
Aidiniantz v Aidiniantz and others  EWCOP 65
The Court of Protection has permitted the identification of the parties to a dispute concerning where the protected party should live, the basis upon which her children should each have contact with her and the extent to which there should be an investigation into past dealings with her finances on the grounds of public interest. Mr Justice Jackson said “Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.” The four adult children of Mrs Grace Aidiniantz, who is aged 88 and in poor health, have been in litigation since 2012. In considering Ms Aidiniantz’s best interests under section 4 of the Mental Capacity Act 2005 Mr Justice Jackson concluded that their conduct had led to them forfeiting the right to have their views on what they believed to be in their mother’s best interests taken seriously.
The Estate of Florence Rosemary Harte (Deceased) ( EWHC 2351 (Ch)
The High Court considered the instructions that the deceased provided to the Will draftsman in order to decide when and how to interpret and rectify Ms Harte’s will to reflect her true intentions. Mr Harte’s Will was ambiguous and gave rise to a number of questions including whether her residuary estate included real property and whether charitable legacies should be distributed according to the correct charity numbers detailed in the Will despite the charities being incorrectly named. Mr Judge Hodge QC applied Marley v Rawlings and determined that the court could interpret Ms Harte’s Will by reference to notes of the Will draftsman and his instructions. The case highlights the importance of making an accurate record of a testator’s intention as this might be relied upon in the event of an unclear Will.
Will forgery claims
In the past year, the High Court has been asked to determine whether a purported will is a forgery on three separate occasions: Watts v Watts (2014); Pittas v Christou (2014); and Haider v Syed (2014). The outcome of these cases has fallen primarily on the strength of witness evidence at trial emphasising the importance of a thorough analysis of potential witnesses and the credibility of their evidence. Read more on will forgery claims.
Re Piedmont & Riveria Trusts  JRC 196
The Royal Court of Jersey has set aside purported appointments of trustees and protectors on the grounds that the appointments were irrational and made in breach of duty. The Court concluded that the appointment of the Protectors “would undoubtedly have a seriously detrimental effect on the administration of the Trusts”. The Court determined that the trustee appointment was invalid on the basis that the protector had failed to “take into account material matters” including the expertise, experience and financial standing of the proposed trustee.
Fielden v Christie-Miller and others  EWHC 87 (Ch)
The High Court ruled that where a claim in proprietary estoppel is made against trusts, it is incumbent on the claimant to show that the representation relied upon was made by or on behalf of all the trustees, unless the trust document discharges them of the duty to act unanimously. The applicant trustees of the Swyncombe Settlement were successful in striking out the respondent’s claim for proprietary estoppel on the basis that a non-unanimous representation could not bind the trustees and any purported fetter on the trustees’ discretion was unenforceable.
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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