Harvey & anr v Van Hoorn [2023] WTLR 1323

Winter 2023 #193

This was a claim for an order under the Variation of Trusts Act 1958, or alternatively a direction that the trustees of a settlement be at liberty to implement an arrangement involving the release and reimposition of certain powers. The claimants were the only trustees of the trust, and were also, respectively, the widow of the settlor, who had become the trust’s life tenant upon his death, and the settlor’s only child, who was also one of the objects of a discretionary power of appointment under the trust. They were concerned about the capital gains tax consequences that would ...

James v Scudamore & ors [2023] WTLR 961

Autumn 2023 #192

The deceased died on 21 June 2010. His will, dated 6 March 1998, gave a life interest in the matrimonial home to his second wife, with remainders to the claimant and his brother, who were children of the deceased’s first marriage. A codicil, dated 26 December 2002, replaced the life interest with an absolute gift to the second wife. The deceased’s second wife obtained probate, relying on a copy of the codicil as the original could not be found, and administered the estate. The second wife made a will by which 70% of her residuary estate went to her sister, and 30% to the claimant’s three...

SwissIndependent Trustees SA v Sofer & ors [2023] WTLR 329

Spring 2023 #190

The claimant, a Swiss corporation, was the sole trustee of three discretionary trusts named as the Gabri, Puyol & Xavi trusts (the trusts) which had been created via a British Virgin Islands (BVI) company by Hyman Sofer (the settlor) in 2006. The trusts, though expressed to be governed by English law, were set up in Australia and a holding vehicle called the Jordi Unit Trust was used to channel the investments. Neither the settlor nor his children or remoter issue originally figured as settlor and beneficiaries, though they were later added to the classes of ‘Specified Beneficiaries’...

Dunbabin & ors v Dunbabin [2022] WTLR 917

Autumn 2022 #188

Angela and John Dunbabin purchased a property known as 29 Beverley Place, Springfield, Milton Keynes (the property) in 1983. The conveyance was silent as to the beneficial interests though it contained a declaration that either of the purchasers could give a valid receipt for capital money arising on a disposition of land. With the assistance of Terry Oldfield, a professional will writer, they executed ‘mirror’ wills giving their own share of the property to trustees upon trust for sale and to hold the net rents and profits and the net income from the sale proceeds in trust for the other...

Dunbabin & ors v Dunbabin (costs) [2022] WTLR 935

Autumn 2022 #188

On 10 February 2022 judgment was delivered on a claim brought under Part 8 of the Civil Procedure Rules in relation to issues which had arisen in the administration of the estates of Angela and John Dunbabin. The main issue related to the question whether they had severed their beneficial joint tenancy, so as to hold the legal title to their residence upon trust for themselves as tenants in common in equal shares, with the result that on the death of Angela her half share devolved according to the terms of her will instead of passing automatically by survivorship to John. The cl...

Pescatore v Valentino & ors [2021] WTLR 917

Autumn 2021 #184

The claimant, a Mongolian national, was the second wife and widow of the deceased. She applied for an interim anti-suit injunction against two of the three defendants, the deceased’s adult children, restraining them from continuing proceedings against her in Italy pending a trial of a dispute concerning the deceased’s will in England.

The deceased was born in Italy, but was a naturalised British citizen. He had lived in England for 58 years until his death, aged 78, in 2018. His entire working life had been in England. He paid tax in the UK. He had raised a family in England (incl...

Smith & anr v Michelmores Trust Corporation Ltd & ors [2021] WTLR 1051

Autumn 2021 #184

The testatrix (T), whose husband predeceased her, was survived by her four children, B1, B2, B3 and B4. T had appointed B3 and the partners of a solicitor firm as the executors of her will. She left the residue of her estate on trust to be divided into four equal shares: one for the benefit of each of B1, B2 and B3, and the fourth upon discretionary trusts, which included a wide power of appointment, for the benefit of B4 and his children and remoter issue. At the time of the hearing, B4 had three adult children and one minor grandchild. T died in 2010 and probate of her will was granted...

Smith & anr v Michelmores Trust Corporation Ltd & ors (costs) [2021] WTLR 1083

Autumn 2021 #184

A testatrix (T) left the residue of her estate (the trust fund) on trust to be divided into four equal shares, directing that one of them (the share fund) be held upon discretionary trusts for the benefit of her son, B, and his children and remoter issue. The other three shares were given to her other three children absolutely. The will trustees (who were the executrix of T’s will and another person appointed by her as a co-trustee) sought the approval of the court for a proposed appointment of all of the liquid funds in the share fund to B absolutely. The judge refused to approve the pr...

Knipe v The British Racing Drivers’ Motor Sport Charity & ors [2020] WTLR 1333

Winter 2020 #181

By clause 8 of his will the deceased gave the residue of his estate to four institutions in various shares, including a gift in clause 8(a) of a 50% share of his residuary estate to ‘the British Racing Drivers Club Benevolent Fund’ and in clause 8(d) of a 10% share to ‘the Cancer Research Fund’.

There was no institution with the name of the British Racing Drivers Club Benevolent Fund. The second defendant, the British Racing Drivers’ Club, was a well-known unincorporated association, but not a registered charity. The only benevolent fund administered by the second defendant was th...

Todd v Parsons & ors [2020] WTLR 305

Spring 2020 #178

T died in 2009, aged 96 years, leaving two adult children, her son, who was the claimant (C), and her daughter, who was the third defendant (D3). By a will document dated 25 September 2008, T appointed the first defendant (D1) and the second defendant (D2) as her executors. D1 was the daughter of D3 and T’s only grandchild. D2 was the solicitor who drafted the will document. Both remained neutral in the proceedings.

In June 2017, C brought a claim for probate in solemn form of the will document and for an order removing D1 and D2 as executors and appointing an independent personal...