DL v A Local Authority & ors [2012] EWCA Civ 253

December 2012 #125

Mr and Mrs L were an elderly married couple who, at the relevant time, were living with DL, their middle aged son, in the family home. Neither were at that time incapable, by reason of any impairment of, or disturbance in the functioning of, the mind or brain, of managing their own affairs within the meaning of the Mental Capacity Act 2005 (MCA). However, the local authority, which was concerned about alleged threatening and controlling behaviour on the part of DL, sought and obtained injunctive relief to protect Mr and Mrs L. Evidence obtained by the official solicitor concluded that bo...

Fine v Fine [2012] EWHC 1811 (Ch)

December 2012 #125

The settlors, who were husband and wife, each executed a trust deed in mirror terms in 1992, creating discretionary trusts. At the time the trust deeds were executed the settlors had only one grandchild, Maxwell. The trust deeds contained inter alia the following definition of the beneficiaries:

‘The settlor’s children, Tracey Mathew and Kitty and his [her] grandchild Maxwell, and remoter issue and the spouses, widows and widowers of such children, grandchildren and remoter issue.’

On the same date as the trust deeds were executed the settlors...

Gudavadze & ors v Kay & ors [2012] EWHC 1683 (Ch)

December 2012 #125

The deceased (Badri) was a wealthy Georgian businessman. Since Badri’s death litigation, in relation to both the devolution and administration of his estate, had been conducted in numerous jurisdictions. Mr Boris Berezovsky maintained claims against the estate on the basis of alleged joint ventures, but for the purpose of this action supported various members of Badri’s family (the family defendants) in their challenge of documents alleged to have testamentary force.

Badri’s half-cousin and sometime business assistant, Mr Joseph Kay (Mr Kay), had, since Badri...

Hanson v HMRCC [2012] UKFTT 314 (TC)

December 2012 #125

In 2006, the appellant received loan notes as part of the consideration for a sale of a business. He disposed of these loan notes in 2008. The disposal gave rise to a chargeable gain for Capital Gains Tax (CGT) purposes of £1,261,387. Following the disposal the appellant read an article which suggested that UK holiday letting properties could be used to mitigate CGT charges. The appellant had already purchased such a property. He consulted with his usual accountants, Clarke Broom Flemming (CBF) who indicated to the appellant that a form of holdover relief would be available to mitigate t...

Re Harcourt MHLO 74 (LPA)

December 2012 #125

On 15 June 2009, Mrs Harcourt executed a lasting power of attorney (LPA) for property and affairs in which she appointed her daughter (A) to be her sole attorney. The LPA was registered with the Office of the Public Guardian (OPG) on 13 August 2009. In July 2011 the manager of Mrs Harcourt’s care home contacted the local county council expressing concerns that A had not paid Mrs Harcourt’s care home fees and that she gave her very little pocket money. The manager also expressed concerns regarding loans and credit cards which had recently been taken out in Mrs Harcourt’s...

Khaira & ors v Shergill & ors [2012] EWCA Civ 983

December 2012 #125

In October 1987, the Birmingham Gurdwara (a Sikh place of worship) was purchased by four individuals and then by a deed dated 15 January 1991 the original trustees declared trusts of this property. They were trustees of the religious organisation following the teaching of His Holiness the First Holy Saint resident at Nirmal Kutia in the Punjab India ‘or his successor’. Clause 5 of the trust deed allowed the First Holy Saint ‘or his successor’ to remove trustees and appoint new trustees.

Sant Baba Jeet Singh Ji Maharaj (the ninth claimant) purported to retir...

Spurling & anr v Broadhurst & ors [2012] EWHC 2883 (Ch)

December 2012 #125

Ronald Anthony Allcroft Gibbons (the testator), who had no family, made a handwritten will on 29 December 2010 by which he appointed the claimants as his executors and gave them his residuary estate ‘to hold on trust to pay my debts, taxes and testamentary expenses and pay the residue to Veronica Broadhurst, Ann Foden, the living grandchildren of Veronica Broadhurst, and David Spurling in equal shares’. The testator died the following year and the claimants, who considered the terms of the residuary gift to be ambiguous, sought a declaration as to its construction. The third ...

Swain Mason & anr v Mills & Reeve [2012] EWCA Civ 498

December 2012 #125

The claimants appealed from Arnold J’s decision to dismiss their claim in professional negligence brought against the defendant firm of solicitors. The defendant cross appealed against the judge’s order that the claimants’ pay 50% of the defendant’s costs.

Mr Christopher Swain owned 72.4% of the shares in Swains International plc. By 2006, Mr Swain had withdrawn from full-time management and spent most of his time in Thailand. Mr Swain had a history of ill health, including diabetes and heart disease. Each of his four daughters (who, together with Mr Swain...

Bagus Investments Ltd v Kastening [2010] JRC 144

December 2012 #125

A Jersey fiduciary services provider known as the Lavy Hancox Group (the LH Group) was, during the 1990s, the forum for fraudulent activities by its beneficial owner, Mr Raymond Bellows (Bellows).

The plaintiff/appellant (a BVI company) was administered by the LH Group. They alleged that the LH Group, unlawfully and without authority, caused US$480,000 to be transferred to an account (the Midland account) held in the name of a subsidiary company, Lavy Hancox Management Ltd.

The defendant/respondent was also in receipt of the LH Group’s fiduciary services: Levy Hancox ...

Re BXL Services [2012] EWHC 1877 (Ch)

December 2012 #125

BXL Services (the company) was a charitable company limited by guarantee. Owing to government cuts and a large pension deficit, it became insolvent and the directors resolved to place it into administration pursuant to para 22 of Schedule B1 to the Insolvency Act 1986 (the Act). No formal notice in the form prescribed by para 26(2) to Schedule B1 of the Act was given to the company itself. On one construction of the Act, this omission was fatal to the validity of the appointment. On a second construction, it was not an omission at all as such notice was not a requirement. On a third cons...