Welcome to the fourth quarterly case update from the Probate and Trusts team at St Philips.
We hope that you find it helpful and informative. This update has been written by Christopher Buckingham TEP, Gavin McLeod TEP and Charles Towl.
General enquiries can be sent to: commercial@st-philips.com.
Court of Appeal
Khan v Khan: [2025] EWCA Civ 1436: Sibling dispute concerning the ownership of multiple family properties, one of which had been determined to be held on express trust and the other three pursuant to an acquisition constructive trust (“ACT”) (of the form articulated in eg Rochefoucauld v Boustead [1897] 1 Ch 196 and De Bruyne v De Bruyne [2010] EWCA Civ 519).
The Court of Appeal held that such an ACT arises from the terms on which the property was transferred, not from detrimental reliance on the agreement of the beneficiary ([57 – 8]), and that there is no requirement for the transferee to have deliberately procured the transfer ([62]).
After a detailed analysis of the law and facts by Miles LJ, the appeal was dismissed.
Decisions of High Court Judges
Burgess v Whittle [2025] EWHC 2633 (Ch): A failed probate defence to a claim to prove in solemn form. On the incapacity HHJ Matthews observed not only that “the policy of the law is to enable persons who may be elderly, of modest or even limited intelligence, and even suffering from illness, and taking medication, to make wills. So, for example, simply being mistaken does not take away capacity” ([7]). It is also worth noting the observation (at [22]) that it is simply not enough to show the deceased was suffering from some form of mental disorder – it is necessary to show, further, that the effects were sufficiently serious to negate testamentary capacity.
Ellis v Ellis [2025] EWHC 2609 (Ch): Interesting costs decision discussing the Spiers v English ‘probate exceptions’ neither of which was held to apply on the facts. HHJ Berkley also rejected criticism of the victor in delaying to agree to mediate, noting that the defendant had not sought to mediate with “cards on the table” or proper disclosure ([100 – 109]).
Maile v Maile [2025] EWHC 2494 (Ch): Substantial and unsuccessful probate/proprietary estoppel case arising in a farming context. The judgment of Green J is replete with pithy observations: the test for capacity is not a memory test ([149]); an allegation of undue influence must not be made lightly and if pursued should be done with conviction ([191]); any testamentary promise relied on in a proprietary estoppel claim must be clear and unequivocal, and any alleged detriment must be substantial enough to establish the requisite reliance and causal connection ([207]); and given that everyone knows that wills can be changed for all sorts of reasons, such a representation must have a certain quality of immutability ([218]).
Decisions of High Court Judges continued
Scott v Scott [2025] EWHC 2796 (Ch) Another substantial probate/proprietary estoppel decision with a detailed summary of the law from [187], [285] & [320]. As to proprietary estoppel, Richards J held that there had been reasonable reliance on assurances for a period of eight years, and that the testator had then withdrawn them for understandable reasons; this was not a ‘lifetime’ commitment case. The detriment was outweighed by financial benefits received during the time of reliance, whilst it would (in any case) have been out of all proportion to satisfy the expectation after so limited a period of reliance which had been financially productive for the claimant. The probate claim also failed.
Burgess v Whittle [2025] EWHC 2829 (Ch): Another costs decision on the Spiers v English probate exceptions. On the facts HHJ Matthews held that the circumstances did not lead reasonable to an investigation of the matter and so the unsuccessful party was ordered to pay the successful party’s costs in the usual way. Although a beneficiary rather than executor, the successful party was also entitled to an indemnity from the estate.
Kanta Kaur v Kouri Kaur [2025] EWHC 2806 (Ch): Interesting decision concerning various issues between 10 children of the deceased, primary of which was the status of monies paid to the first defendant and held (on the facts) to be subject to an equitable obligation to repay to the estate. The case contains an interesting discussion of derivative actions (from [32]) and the presumption of advancement (from [93]).
Lowe v Daniells [2025] EWHC 3297 (Ch): Very unusual case brought by an administrator for directions as to what to do with the estate residue in circumstances where i) the defendant was entitled to the residue but ii) she did not appear to consider anything was due to her. HHJ Matthews discussed but declined to rule on question of disclaimer and made a Benjamin order giving the claimant liberty to distribute on the footing the defendant had disclaimed but without extinguishing her rights.
Shufflebotham v Shuff-Wentzel [2025] EWHC 3321 (Ch): Costs decision on a broadly unsuccessful removal case. HHJ Charman held that although the proceedings did not fall squarely within any of the Re Buckton categories, it was closed to a hostile beneficiaries’ claim. In those circumstances, the claimants would be ordered to pay the defendant’s costs, however, the claimants (who were also executricies) had not lost their right to recoup those costs from the estate pursuant to their indemnity.
Decisions of High Court Masters
Cockell v Cockell [2025] EWHC 2490 (Ch): 1975 Act adult child claim, which included a s.9 application in relation to a joint tenancy of the deceased.
Bowerman v Bowerman [2025] EWHC 2947 (Ch): Sibling dispute concerning validity of parents’ wills (both made in 1999). Although Master Clark was satisfied that the parties’ father did not have capacity or know and approve of the contents of his will, the defendant successfully invoked the doctrine of laches (there having been a delay of 18½ years in bringing the claim).
Smith v Campbell [2025] EWHC 3011 (Ch): Interesting trustee removal claim. The decision contains a summary of the legal principles (from [48]), but also a helpful discussion on how contested factual disputes are resolved in Part 8 claims (from [67]). Most of the removal grounds failed, however, two of the trustees were removed on the basis of their hostility towards the claimants.
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.
