Probate & Trusts Q2 2024 Update

Signing will
Written by:

Raghav Trivedi


Welcome to the second quarterly case update for 2024 from the Probate and Trusts team at St Philips. 

We hope that you find it helpful and informative. This update has been written by Raghav Trivedi. General enquiries can be sent to:

High Court Highlight

Rahman v Hassan [2024] EWHC 1290 (Ch): This unique case involved gifts by a distant relative of the Claimant in contemplation of his imminent death, invoking the principles of donatio mortis causa (i.e. the the validity of gifts in contemplation of death). The gifts included monies in bank accounts, a house and flats. The relative had provided the Claimant with Land Registry certificates for the house and leases for the flats, and provided login details for his bank accounts, telling the Claimant this was all his. The relative curiously had also executed a will under which the Defendants were beneficiaries. The relative died, sparking this dispute over the gifted assets.

This case is worth a read in full as HHJ Matthews simplified the donatio mortis causa principles, finding that the passing over of land certificates or office copy entries with donative intent may suffice in creating a valid gift under these principles, and created a constructive trust imposed on the personal representative to perfect the donee’s title. HHJ Matthews found that the relative had parted with dominion of those assets he had gifted by his actions. 

Key High Court Decisions

Ali v Miah [2024] 6 WLUK 74: This was an appeal against a county court decision removing the appellants as trustees of the East Ham Bangladeshi Islamic Community Trust under the Trustee Act 1925 s.36 despite the existence of a 2007 express declaration of trust. It was, inter alia, questioned whether the terms of the declaration of trust relating to appointment and removal of trustees demonstrated an intention to oust the provisions of s.36 of the Trustee Act 1925. HELD – the appeal was dismissed. The terms of the declaration of trust did not demonstrate a contrary intention to oust s36 of the Trustee Act 1925. The provisions of the declaration of trust were not an exhaustive code and operated in conjunction with s.36.

Lane v Lane [2024] EWHC 752: A reminder of how the question of costs at the conclusion of a probate claim might be determined applying Buckton categories for costs. This claim involved two parts, the first relating to the construction of a will (i.e. whether a gift under the will had adeemed) and the removal and replacement of the Defendant executrix. The Court had found in favour of the Claimant personal representative meaning the Court found that the gift had not adeemed and that, due to the conduct of the Defendant and her failure to properly administer the deceased’s estate, the Defendant should be removed and replaced. HELD – in terms of costs, the construction claim was one that needed to be resolved for the interests of the administration of the estate and therefore the costs associated with this part of the claim were required to be paid out of the estate. In terms of the removal claim, given the nature and findings of this claim, the Defendant was ordered to pay the Claimant’s costs or such costs could be deducted from the Defendant’s share in the estate or deducted as an expense of the estate. The Defendant was required to bear her own costs. 

Dryden v Young [2024] EWHC 1095: a seminal decision requiring a full read and considering and consolidating the principles determining the validity of gifts of residue in a will to 7 charitable organisations, the identity of which were in dispute. The question was whether the gift had failed and so was to be passed on intestacy or was to be applied cy-pres. HELD – all 7 gifts were valid and did not pass on intestacy. The Court provided the following key reminder of the principle applicable to corporate charities – “in the case of a gift to a corporate charity, the gift will be treated as a gift to the corporate entity itself and not a gift on trust for charitable purposes, the limit on the power of the corporate entity regarding any charitable property that it holds will be determined by its constitution… This is subject to any contrary intention which is identified as a matter of construction” (para 63). 

Key High Court Decisions Continued

Davies v Watts [2024] EWHC 1177 (Ch): The Claimant sought to prove the contents of the will of the deceased in solemn form in circumstances where the will had been executed a day or so after the deceased had spent 10 days in hospital (suffering from pneumonia and possibly sepsis) with an underlying auto immune condition and other conditions. The deceased was weak and frail but the Court held that the deceased possessed testamentary capacity at the time the will was made (the will being rational on its face with non-medical evidence of witnesses tested in cross examination demonstrating the deceased’s testamentary capacity). Further the deceased had known and approved the contents of the will with uncomplicated terms explained by a solicitor and read over by him.

Estate of Hassan (Deceased) v Digit Ltd (In Liquidation) [2024] EWHC 1127: A residential property had been purchased by a husband and wife with money provided by a company that had been set up by them. However the property was registered in the name of another company. The property had been purchased out of the profits that would ordinarily have gone to the Claimant wife. The Claimant had lived rent free in the property and treated it as her own and the Claimant had orally agreed with her husband that the property would be registered in her name. HELD – at the time of purchase it was the common intention that the Claimant would be the beneficial owner of the property and therefore the Defendant company held it on a resulting trust for the Claimant. Where family property is bought in a company name, it may be thought easy to conclude the property is beneficially owned by someone within the family and not the company. However this case provides for the following stark reminder – “whilst courts considering the ownership of family property may readily conclude that property acquired in a company name is not beneficially owned by the company, this is not a licence to speculate and there must be an evidential basis to so conclude” (para 21). 

An older case…

Re Payne (Deceased)[2018] EWCA Civ 985: This is an important case for procedural reasons with the Court finding that, for the purposes of a probate claim governed by Part 57 CPR, r 57.5 (2) must be complied with (namely the lodging of original testamentary documents at Court at the time of issue by a Claimant and at the time of filing an acknowledgment of service by a Defendant). Unless the Court has directed otherwise, a failure to comply with this provision was deemed by the Court in this case as a serious procedural irregularity.

“A further problem is that the judge and the parties did not have a complete copy of the 1998 Will to work from, and they were unable to inspect the original even though it was known by Mrs Payne to be held at the Winchester District Probate Registry. This was a serious procedural irregularity that should never have been allowed to happen. It has long been a requirement in probate claims that “Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court”: see CPR rule 57.5(1) . “Testamentary document” is widely defined, by rule 57.1(c) , as meaning “a will, a draft of a will, written instructions for a will… and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed”, and “will” includes a codicil. By virtue of rule 57.5(2) , unless the court otherwise directs, the testamentary documents must be lodged in the “relevant office” by the claimant when the claim form is issued, and by a defendant when he acknowledges service. In the present case, the “relevant office” would initially have been the Bristol District Registry” (at [33]). 

Disclaimer: This article has been prepared for informational purposes only, is general in its nature and should not be construed and/or relied upon as giving legal advice. 

Written by Raghav Trivedi