Capacity: Importance of the golden rule

Burges Salmon LLP | Trusts and Estates Law & Tax Journal | April 2018 #195
Kevin Kennedy and Andrew Walls report on the test in Banks v Goodfellow ‘This judgment provides very significant support that the Banks v Goodfellow test is the sole test for the court to apply when judging testamentary capacity post mortem.‘ The High Court in James v James [2018] has ruled that the test in Banks …

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Wills: Crossing a line

Brendan Cotter | Trusts and Estates Law & Tax Journal | January/February 2017 #183
Brendan Cotter considers how likely a claim against a testamentary predator is to succeed ‘The classic sign of undue influence is the main beneficiary being active in the preparation of a will in which they take a substantial benefit.’As Hilaire Belloc wrote in Dedicatory Ode 1910: ‘The question’s very much too wide, and much too …

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Chattels: Cutting the Gordian knot

Harcus Sinclair | Trusts and Estates Law & Tax Journal | December 2016 #182
Hannah Southon explores a judgment concerning a rarely used power of the court to direct the division of jointly-owned chattels ‘The case serves to underline the fact that if it is important to a donor who desires to dispose of assets by gifting them outright, rather than settling them on trust.’What relief is available from …

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Elliott v Simmonds (costs) [2016] EWHC 962 (Ch)

Wills & Trusts Law Reports | October 2016 #163

On 7 April 2016 judgment was delivered pronouncing for the force and validity of the will dated 1 February 2012 (2012 will) of Kenneth William Jordan (Mr Jordan) in solemn form of law and ordering that a caveat entered by the first defendant in respect of his estate cease to have effect. The normal rule of costs is that costs follow the event. However, the Court has discretion to make a different order, taking into account, for example, the conduct of the parties. In a contentious probate claim, there are also specific exceptions to the normal rule arising under case law and under the Ci...

Wills: One step, two step…

Fenners Chambers | Trusts and Estates Law & Tax Journal | September 2015 #169
Araba Taylor examines Re Butcher [2015], a case that puts the principles of Gill v Woodall into practice ‘The single test comes into its own where the court has enough facts, expert opinions and other evidence to enable it to make findings as to how the will was prepared and/or executed.’ Before the CA decision …

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Trust And Probate Claims: Counting the cost

New Square Chambers | Trusts and Estates Law & Tax Journal | December 2014 #162
Alexander Learmonth examines the effect of the Supreme Court’s decision on the costs of the claim for rectification of a will in Marley v Rawlings [2014] ‘When advising clients contemplating the risks of litigation, litigators should continue to adopt a cautious approach; clients must be ready to negotiate in good faith, rather than relying on …

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Testamentary Capacity: Eccentricity allowed

Penningtons Manches Cooper LLP | Trusts and Estates Law & Tax Journal | September 2014 #159
Ailsa Moorhouse sets out a case that upholds a person’s right to leave their assets to whoever they choose ‘For the estimated one third to one half of the adult population in England and Wales who have made wills, the case of The Vegetarian Society is important, being, as it is, up-to-date evidence and reassurance …

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Undue Influence: Tread carefully

Schomberg v Taylor demonstrates the high evidential burden of challenging a will under undue influence. Mark Keenan and David Hickmott explain ‘Where an allegation of undue influence is made, the burden of proof is on the party alleging the misconduct and the civil standard of the balance of probabilities applies.’ There are various grounds upon …

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Executor’s Costs: Neutrality is key

Penningtons Manches Cooper LLP | Trusts and Estates Law & Tax Journal | September 2013 #149
Sian Hodgson gives the lowdown on executor’s costs in litigation, with reference to the recent case of Taylor v Saunders ‘An executor who has been involved in the preparation and execution of a will, in which he is also appointed executor, may naturally wish to “defend” that will’ The issue of an executor’s costs in …

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Morris v Davies & ors [2012] EWHC 1981 (Ch)

Wills & Trusts Law Reports | November 2012 #124

The deceased, Owen Davies (D), was born in England but died in France. He was living in Belgium at the time but owned a house in England and had made a will in England some 12 years before his death under which the fifth defendant, his uncle Clive Davies (Clive), was interested in residue. He was not on good terms with his mother and siblings represented by the first to third defendants (the family defendants (FD)) when he made his will and they contested probate proceedings claiming that D had died domiciled in Belgium and that the will was null and void under Belgium law, pleaded that ...