Probate & Trusts Q1 2024 Update

Signing will

Welcome to the inaugural quarterly case update from the Probate and Trusts team at St Philips.

We hope that you find this update helpful and informative. This update has been written by Christopher Buckingham.

High Court Bench

Leonard v Leonard [2024] EWHC 321 (Ch): Judgment of Joanna Smith J, which is something of a tour de force arising in the context of a dispute between the families of a first and second wife in respect of an Estate said to be worth about £5.4m. The case contains an insightful discussion of the law on testamentary capacity (from [149]) and knowledge and approval (from [166]). After a lengthy review of factual and expert evidence, the Judge pronounced in favour of a 2007 Will and against a 2015 Will. The Judge noted at [492]:

“Parties to cases of this sort should be under no illusions as to the emotional and financial toll the extract and the considerable ordeal for both sides of contesting the matter to a final judgment.”

Whether or not this stark warning will dull the enthusiasm of families for Probate litigation remains to be seen. 

Court of Appeal Decisions

Savage v Savage [2024] EWCA Civ 49: A decision on s 15(3) of TOLATA (“…the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age…or (in case of dispute) of the majority (according to the value of their combined interests)”). Held: s 15 is non-exhaustive in nature and even though the court is directed to have regard to a listed matter, it is not bound to give effect to it, or to prioritise it over any other listed factors. The wishes of the minority of beneficiaries by value are not excluded from being taken into account.

Rea v Rea [2024] EWCA Civ 169: The deceased had left the only substantial asset to her daughter, effectively at the expense of her sons. The judgment contains a useful summary of the case law on undue influence (from [20]) and the limited circumstances in which a finding of fact can be interfered with by an appellate court (from [41]). In overturning the finding of HHJ Hodge KC, the Court said at [57] “For coercion to be proved, it had to be shown to be more probable than any other possibility. I do not think there is any question of coercion having been the most probable possibility here.”

Brealey v Shepherd & Co [2024] EWCA Civ 303: In the absence of a charging clause in a Will, a solicitor-executor could not rely on s 29 of the Trustee Act 2000 to charge for his services without the written consent of all executors (whether or not they were proving). A plea for remuneration under the Boardman v Phipps jurisdiction was also rejected. 

Decisions of High Court Masters

Folds Farm Trustees Limited v Cutts [2024] EWHC 12 (Ch) was a claim for the Court’s approval of a significant decision taken by trustees, notably to appoint the primary asset (a farm) in favour of a beneficiary in return for a large cash payment. A summary of the legal principles can be found from [65]. The Court had to ask itself whether the decision was one a reasonably body of trustees could have properly arrived at and whether it was vitiated by any conflict of interest. Master Clark rejected the challenges made to the decision and approved it, noting (at [93]) that the trustees were not required to sell the farm to ascertain its true value.

Biria v Biria [2024] EWHC 121 (Ch) concerned a Will purportedly executed by a 95 year old shortly after the commencement of Court of Protection proceedings, which, ultimately, concluded that there was a lack of capacity. Deputy Master Bowles held that the Will failed on grounds of capacity, want of knowledge and approval and undue influence (but not on the ground of fraudulent calumny).

Gohil v Gohil [2024] EWHC 213 (Ch) was a Probate battle conducted entirely without lawyers. The Defendant responded to the claim for a pronouncement in favour of a Will with a defence and counterclaim alleging invalidity on various grounds and removal of the Claimant as executrix. Deputy Master Lampert granted the Claimant’s application for summary judgment.

Gowling v Ward [2024] EWHC 347 (Ch) was a Probate dispute in which the deceased made one Will dividing the residuary estate between his three children, and then, after the death of one of his sons, a second Will dividing the estate between his two surviving children. A challenge was brought by the children of the pre-deceased sons on the basis of lack of capacity, want of knowledge and approval, undue influence and fraudulent calumny. Master Brightwell set out a clear summary of the law at [96], [111] and [120] and dismissed the claim on the facts. In respect of the rationality of the later Will, the Master said this at [102] “Some may take the view that, as a general proposition, when a testator’s child has predeceased him, he generally ought to leave an equal share of his residue to that child’s issue. However, the decision not to do so, and to split the residue and thus the bulk of the estate between his surviving children, can hardly be said to be provision which no reasonable testator could make.” 

An older case…

Killearn v Killearn [2011] EWHC 3775 (Ch) is an unreported decision which deserves to be better known, not least because of the helpful summary of guiding principles which are applicable to a sale of property by trustees at [16]:

(i) It is the overriding duty of a trustee when selling a trust’s property to do so under every possible advantage to his beneficiaries…(ii) The duty includes a duty to secure by every means in the trustees’ power a proper competition for the trust property in order to obtain the best price…(iii) The duty requires the trustee to investigate a higher offer after the stage at which an ordinary vendor might consider himself morally bound by a lower offer…(iv) The trustee must not make a sale with a view to advancing the particular purposes of one party interested in the execution of the trust at the expense of another…(v) Where a trustee exercises a power vested in him such as a power of sale, the burden of proof lies on him to show that it is a fit and proper exercise of the power…(vi) Finally, a trustee in breach of duty is personally liable for any loss caused to the beneficiary…” 

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.