Blog
When does the clock start ticking on trustees’ negligence?
Sophie Mass
By their nature, disputes over Wills, Trusts and Inheritance often occur at times of emotional vulnerability and distress. Bringing or defending such claims is especially demanding and can become acrimonious and fraught very quickly.
Seeking expert legal advice at an early stage to help resolve matters can therefore be crucial and can potentially avoid litigation and costly court proceedings.
Our specialist Wills, Trusts and Inheritance Disputes lawyers have extensive experience in dealing with disputes of this nature and are ranked in both Chambers & Partners and The Legal 500 as experts in this field.
We act for trustees, executors, personal representatives, protectors, beneficiaries, charities and for individuals in a wide range of disputes involving estates, trusts and land.
How we can help
The work we undertake includes:
- challenges to the validity of wills;
- Inheritance (Provision for Family and Dependents) Act 1975 claims;
- professional negligence claims;
- proprietary estoppel claims;
- breach of trust or breach of duty claims;
- variation of trust applications;
- directions for the administration of trusts;
- blessing applications;
- removal/replacement of executors or trustees;
- fraud and asset tracing (and applying for injunctive relief);
- rectification, mistake and Hastings-Bass applications;
- constructive trust claims;
- Trust of Land and Appointment of Trustees Act 1996 claims;
- construction applications.
We often advise on complex and cross-jurisdictional issues, and regularly work alongside other intermediaries based offshore. We have specialist expertise in fraud cases involving trusts and estates, and we work with our top ranked criminal team on cases which involve criminal allegations. We also work closely alongside our leading family team in divorce cases involving trust property.
We are regularly instructed in relation to contentious matters arising in the Court of Protection and are experienced in advising charities in relation to their potential fraud exposure as well as defending charitable legacies and other such related disputes. We also act often in disputes arising in relation to family farms and landed estates.
The circumstances of each case are unique, which necessitates a tailored response to the individual needs of our clients. We employ a wide range of methods to help promote early settlement where it is possible. However, if a resolution cannot be found, we engage in and manage litigation as pro-actively, efficiently and cost effectively as possible to ensure success for our client at trial.
We always give clear advice to our clients about costs and the various options for funding a dispute involving trusts and estates.
For more information, look at our frequently asked questions on wills, trusts and inheritance disputes, and read our Need to Know guides for Trustees and our case studies .
What clients and directories have said
their client service is exceptional"
Chambers and Partners High Net Worth Guide 2019
They've been great - sensible about fees, innovative in their approach, and tough where needed. You always felt they were in your corner,"
Chambers and Partners High Net Worth Guide, 2020
They are just really high-quality strategists and are very experienced litigators in the private client field."
Chambers and Partners High Net Worth Guide, 2020
I completely trust the company and the individuals who we dealt with. It is also an organisation who you would prefer to have acting for you than against as their team knowledge throughout the firm and cooperation is outstanding "
Legal 500 UK, 2020
They proved to be incredibly good value for money and were always clearly aware of minimising costs compared to other firms of solicitors who have not been so well focused on costs"
Legal 500 UK, 2020
A team of strong and capable lawyers with clear focus on achieving the best outcome for the client. "
Legal 500 UK, 2020
They are particularly tenacious and focused on identifying and delivering the client's needs and true goals"
Legal 500 UK, 2020
This team is a class act."
Legal 500 UK, 2020
they have strength in depth” and “they’re extremely professional and very experienced”
Chambers and Partners High Net Worth Guide 2019
They are a good cohesive unit, they go the extra mile"
Chambers and Partners High Net Worth Guide 2019
they’re very prevalent in the market” and “they’re very good in this world, and have a growing reputation”
Chambers and Partners High Net Worth Guide 2019
They do serious, high-value and complex work. These are noteworthy cases which make a splash in our industry"
Chambers and Partners High Net Worth Guide, 2018
the most valuable thing he did was to be able to see the big picture. He made sure the client got what he wanted to achieve. He has great commercial awareness."
Chambers and Partners UK, High Net Worth Guide, 2017
They are very good at getting on top of things quickly and efficiently to achieve an advantageous settlement."
Chambers and Partners UK, High Net Worth Guide, 2017
Kingsley Napley LLP’s efficient and pragmatic team - is well equipped to handle complex multi-jurisdictional work"
The Legal 500, 2016
Head of team Ryan Mowat ‘throws his heart and soul into his clients’ cases and knows when to fight and when to settle’"
The Legal 500, 2016
Also recommended are the ‘exceedingly bright’ Katherine Pymont, ‘very reliable and capable’ Kate Salter, and associate Laura Phillips, who ‘really knows her stuff’
The Legal 500, 2016
Sources describe Ryan Mowat as "extremely thorough and responsive" and appreciate that he "rolls his sleeves up and gets stuck in."
Chambers and Partners UK Guide, 2016
Mowat gives robust advice and is not afraid of the fight. He is responsible for coming in and really growing this area at the firm."
The Legal 500, 2014
Clients of Kingsley Napley LLP can draw on the expertise of the flawless Ryan Mowat."
The Legal 500, 2014
Examples of recent cases
- Acting in a proprietary estoppel claim for our client against his parents in relation to farming land and the family business
- Acting for the beneficiaries in multijurisdictional trust dispute challenging the exercise of the trustees’ discretion to appoint assets out of trust
- Successfully defending a challenge to the validity of an English will on the grounds that the testator could not have known and approved the contents of the will because she did not speak, read or understand English.
- Acting for a client in a highly acrimonious dispute regarding his father’s estate involving allegations of destruction of a will, forgery and the concealment of overseas assets.
- Advising a client in relation to a professional negligence claim against the solicitor who drafted her husband’s will, an application for rectification of that will on the basis of mistake, and a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
- Advising a Guernsey trust company in a cross border investigation into issues surrounding the settlor and main beneficiary of a family trust. The claims included allegations of undue influence and the misappropriation of assets including extremely valuable artwork.
- Assisting a beneficiary of a substantial trust in relation to the disclosure of information about the trust and also advising on allegations of breach of trust and proceedings for removal of the trustees.
- Acting on behalf of a trustee in bankruptcy where the bankrupt had divested himself of assets, including through offshore trust structures before making himself bankrupt in the face of significant tax liabilities due to the failure of aggressive tax avoidance schemes.
- Advising a Panamanian trustee company of a Cayman trust in a complex piece of multi-jurisdictional trust/fraud litigation relating to the transfer of assets from another off-shore trust.
- Acting in relation to a challenge to the validity of three wills made after the deceased’s diagnosis with brain cancer and investigating the misappropriation of assets prior to his death.
- Advising the children of the deceased in relation to a claim under the Inheritance (Provision for Family and Dependants) Act 1975, in circumstances where their father had made a death bed will cutting them out of his estate.
William Christopher
Partner
Sue Thackeray
Partner
Emily Greig
Associate
Anna Metadjer
Associate
Abigail Onslow
Associate
Laura Phillips
Senior Associate
Katherine Pymont
Senior Associate
Kate Salter
Senior Associate
The team at Kingsley Napley is well regarded in the contentious trusts and estates market. The lawyers are successful because they are intelligent and tenacious. They do not gild the lily, but instead they retain their focus on their client’s commercial objectives and achieve them through hard work. They litigate as it should be done"
The Legal 500 UK, 2021
From my initial enquiry through to the conclusion of my dispute Kingsley Napley was professional, approachable and understanding."
The Legal 500 UK, 2021
Combines technical knowledge and analysis with commercial nous"
The Legal 500 UK, 2021
Latest blogs & news
When does the clock start ticking on trustees’ negligence?
Matthew & Others v Sedman & Others [2021] UKSC 19
The Supreme Court recently handed down a judgment dealing with time limits in a “midnight deadline” case. The claim was brought by new trustees and beneficiaries of a will trust against the former professional trustees. The claim involved allegations of negligence against the former trustees, along with breach of trust and breach of contract.
Looking out for financial abuse of the vulnerable
Financial abuse of older and vulnerable adults is sadly becoming more prevalent
You gotta’ have faith…in ADR
My previous blog examined whether Kenny Goss, the ex-partner of George Michael, may be entitled to a provision from the late singer’s estate, notwithstanding the fact that their relationship had broken down in 2009 (seven years prior to Mr Michael’s death). It was reported at the time that Mr Goss was seeking an award of £15,000 per month on the basis that Mr Michael had been financially maintaining Mr Goss at the time of his death. Pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Mr Goss made an application for reasonable financial provision from Mr Michael’s estate because he had not been left anything in the singer’s will.
Inheritance claims by adult children
In recent years the courts have seen a significant number of claims under the 1975 Act bought by adult children. This week it has been widely reported that the two adult daughters of Tony Shearer, a high profile banker and finance governor of a well-known public school, have failed in their attempt to bring a claim against their late father’s £2.2 million estate. Mr Shearer made no provision in his estate for his daughters leaving the majority of his wealth to his second wife.
What is required to show dishonesty in the case of a professional trustee?
Examining the impact of Sofer v Swiss Independent Trustees SA on practitioners in England and Wales.
This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41
Whoever thought Will forgery would be easy?
Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.
Contentious Trust and Probate Quarterly Round-Up: Q4 2020
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2020 - December 2020.
Beneficiaries in the dark: what can you do to obtain the information you need?
Beneficiaries often have questions and concerns over how the estate of a loved one is being administered but are sometimes kept in the dark by personal representatives (PRs). Under section 25(b) of the Administration of Estates Act 1925 (AEA 1925) PRs can be required by the court to provide, on oath, a full inventory of the estate and an account of what steps they have taken to administer an estate.
Leaving a legacy to charity: avoiding a will construction claim
The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors [2020] EWHC 3295 (Ch), a summary judgment application concerning the construction of a will of a deceased racing driver, Mr Barrie Williams, who had sought to make several bequests to charity but the names of the organisations had not been correctly recorded.
When can a Will be rectified? Barrett v Hammond (2020)
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
Did George Michael have the freedom to exclude his ex-partner from his will?
It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.
Highly publicised matters arising in relation to the administration of the late Steve Bing’s estate in the US give rise to some interesting legal issues
Before the Family Law Reform Act 1969 (“the 1969 Act”) came into force on 1 September 1970, the common law rules of construction that a child is legitimate only if the child was born or conceived in wedlock applied when dealing with trust deeds or wills. The 1969 Act is not retrospective so difficulties may still arise in relation to trust deeds or wills settled/executed prior to that time.
Think twice: might the estate be insolvent?
This blog focuses on two practical considerations that should be borne in mind when dealing with an estate where there are any suspicions that the value of the assets when realised may be insufficient to meet all debts and liabilities in full.
Glover v Barker – Cost Orders against Litigation Friends
It is not uncommon in claims involving trusts and estates for one or more of the parties to be a child or other protected party. This is particularly true of claims under the Inheritance (Provision for Family and Dependants) Act 1975 and in cases involving trusts with minor beneficiaries. The procedures for litigation by or on behalf of a protected party are covered by Part 21 of the Civil Procedure Rules.
How to challenge a will
This article was first published by EPrivateClient on the 18th August 2020
Contentious Trust and Probate Quarterly Round-Up: Q2 2020
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period April 2020 - June 2020.
Solicitors’ Delay in preparing a Will – When is it Negligent?
Delay is a common complaint in professional negligence claims against solicitors in the context of wills and probate. For example, If a client is in poor health or advanced old age and wants to create or update their will, they might instruct a solicitor to assist with this. If the client dies before the new will can be prepared and/or executed, the beneficiaries who would have inherited, had the will been put in place before the client’s death, may look to bring a professional negligence claim against the solicitor if there has been undue delay by the solicitor in preparing the will.
Testamentary Capacity and Undue Influence – When does a Professional Negligence Claim arise?
Solicitors in any field of practice are under a duty to exercise reasonable care and skill when acting for clients. In wills and probate practice, that duty also extends to the beneficiaries of a testator. If the solicitor has acted in breach of that duty, which causes loss to the client or their beneficiaries, this could form the basis for a professional negligence claim against the solicitor.
The Forfeiture Rule - can a person who is convicted of killing another benefit from their crime?
Most people would agree that if a person is convicted of unlawfully killing another person, it would be wrong for them to be allowed to benefit from their crime. For example, if a husband kills his wife and is the main beneficiary of his wife’s valuable life insurance policy, or is the main beneficiary of her estate under a will she has made, it would generally be unpalatable for the husband to be allowed to benefit from the policy or the estate. This principle is unheld in law by what is known as ‘the forfeiture rule’.
Are ‘no win no fee’ arrangements suitable for inheritance claims under the 1975 Act?
When a client decides to pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision, one of the first discussions between lawyer and client is how the claim will be funded.
