Wills & Trusts Law Reports | Summer 2023 #191The claimant made a third-party disclosure application under CPR 31.17 and s34 Senior Courts Act 1981 against Forsters LLP, English solicitors instructed on behalf of Cypriot trustees. Forsters LLP’s position was that the trustees were the only proper parties to the application under CPR 31.17, and that any order for disclosure should be made against them. Permission was granted by HHJ Pelling QC pursuant to CPR PD 6B(20) to serve the application for third-party disclosure on the trustees out of the jurisdiction, and for the application to be served by...
Rebecca Viola and Arabella Ho You analyse the court’s approach where the wardship jurisdiction was found to be limited by the power of another public authority The courts may grant an injunction ex parte but there are limited circumstances in which it is appropriate to apply without notice, ie only where proper notice is impossible …
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Wills & Trusts Law Reports | Autumn 2022 #188The sole trustee of the X Foundation Trust, a Bahamas trust, applied to the court for directions pending the determination of two sets of proceedings before a foreign court (the foreign court proceedings), with respect to the mental capacity of the settlor of the trust (the settlor).
The trust was a discretionary trust whose class of beneficiaries included the settlor and members of his family, as well as companies which received distributions from the trust to pursue charitable activities. The trust instrument provided for a protector, termed an appointor, with power to appoint a...
Wills & Trusts Law Reports | Summer 2022 #187In 2013, B’s father died intestate in France leaving a French property. Under French law, the property passed to B and his adult sister in equal shares. Under French law, it is necessary for the heir to accept their succession to the French estate. As B was a minor (aged 17), he was not able to do so. If he lived in France the surviving parent would be able to accept the succession on B’s behalf, but because B was habitually resident in England the French court declined jurisdiction.
B’s mother made an application for a specific issue order under s8 of the Children Ac...
Simon Adamyk and Jessica Powers examine the current judicial approach to jurisdictional challenges on forum non conveniens grounds Post-Brexit, jurisdictional issues are determined, for the most part, in accordance with common law principles. Al Assam v Tsouvelekakis [2022] was concerned with the funds of two Cypriot trusts, the AAA Family Trust and the Hamza Family …
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Wills & Trusts Law Reports | Spring 2022 #186Mr Dudley Heslop issued two separate proceedings in England against his sister, Ms Mona Heslop, domiciled in England, and his other sister, Mrs Jennifer Seales, domiciled in Scotland. The proceedings concerned the equitable ownership of a property in Jamaica that had been purchased by the parties’ late mother in 2008. The parties’ mother had been domiciled in England from 1948 to 2015 when she moved to Scotland to live with Mrs Seales. In 2018, the parties’ mother passed away, leaving a will dated 13 March 2012 which purported to deal with the property. The proceedings issued by Mr Heslo...
Harry White discusses circumstances in which the court’s residual parens patriae jurisdiction may be utilised where a child is a British national but not habitually resident in England and Wales In order for the court to exercise the residual jurisdiction there must exist circumstances which are sufficiently compelling to require or make it necessary that …
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Alexa Payet provides some useful guidance on cross-border probate disputes In deciding whether Pakistan was the natural and more appropriate forum for the trial, the court applied the factors outlined in Spiliada. In the case of Rehman v Hamid [2019], Mrs Ali was born in pre-partition India in 1942. Upon partition Mrs Ali and her …
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David Sawtell discusses a free range in the choice of jurisdiction ‘When conducting the enquiry under Art 4(1), the court should carry out an objective assessment of all the factors characterising the contractual relationship and determine which of those factors are the most significant.’ Not all commercial agreements between international parties will expressly state the …
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James Davies looks at the implications of reciprocity in cross-jurisdictional cases and the need to consider the longer-term impact of an application ‘The Privy Council examined the authorities relating to public policy precluding the recognition of judgments of a foreign court and noted that reliance on reasons of public policy should be exercised with “extreme …
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