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New edition of the Probate Practitioner’s Handbook

Author: Alexander Learmonth QC

Date: 10 Mar 2021

The new edition of the Probate Practitioner’s Handbook, which includes chapters by Alexander Learmonth on the revocation of wills and interpretation and rectification of wills, has recently been published.

Black Swan takes a dive

Author: Mark Hubbard

Practice Areas: Offshore

Date: 10 Jun 2020

The BVI courts’ Black Swan jurisdiction has been described is “an invaluable tool in asset tracing as it provides a means of opening up a new front to freeze assets without the need to bring a claim for substantive relief.”

 

Currently however, it seems it is no more, following a decision handed down on 29 May 2020 by the Eastern Caribbean Court of Appeal in Broad Idea International Limited –v- Convoy Collateral Limited BVICMAP 2019/0026. 

 

 

To read more, please click here.

Mobile home passes according to deceased’s Will [as varied] but without the benefit of pitch agreement (Barrs Residential and Leisure Ltd v Pleass Thomson & Co

Author: Guy Adams

Practice Areas: Trusts, Wills & Estates

Date: 09 Jun 2020

Private Client analysis: The mobile homes legislation provides a complex sui generis legislative framework regulating the relationship between the owners of mobile home parks and individual home owners. Difficult questions can arise on the death of a mobile home owner as to succession and/or whether the value of the mobile home can be realised for the deceased’s estate. This appeal to the Upper Tribunal (Lands Chamber), which is necessary reading for all estates practitioners and those advising mobile home park owners, analyses the statutory provisions applicable on death and highlights the dangers of the deceased’s Will not including appropriate provisions dealing with the mobile home and of disposing of the home without the benefit of the contractual agreement which permits it to be stationed on the mobile home park. Written by Guy Adams, barrister, at New Square Chambers.

 

Barrs Residential and Leisure Ltd v Pleass Thomson & Co (executors of the estate of the late Colin Hearne) [2020] UKUT 114 (LC)

 

What are the practical implications of this case?

The legislative provisions were described by the judge as ‘far from straight-forward to follow’ and ‘virtually impenetrable to those owning and occupying mobile homes, as well as the site owners, who seek ready access to the legislative provisions setting out their respective rights and obligations’. In this case the professional executor made the fatal mistake of assigning title to the mobile home without the benefit of the pitch agreement. The case is of importance to those drafting Wills who wish to ensure a smooth succession, those acting for estates who do not wish to fall into the same trap and those advising mobile home park owners who wish to know what their rights are following the death of an occupier.

 

What was the background?

The late Colin Hearne was living on his own in a mobile home stationed on a protected site at the date of his death. He left a Will under which the mobile home fell into residue. By a Deed of Variation, it was declared that the Will be varied so as to give the mobile home to Mr Hearne’s son on condition that he paid a sum of money to the estate, which was duly paid. On the same day the executor executed a Deed of Assignment of the mobile home to the son. The First-tier Tribunal (Lands Chamber) had decided that the assignment was ineffective because it did not comply with the relevant statutory provisions under the mobile homes legislation and that, as the executor ‘stood in the shoes’ of the deceased, they remained entitled to sell the mobile home or gift it to a family member in accordance with the statutorily implied terms in the pitch agreement.

 

What did the court decide?

On appeal the Upper Tribunal allowed the appeal. It was important to distinguish between the mobile home as a chattel and the contract between the park owner and the occupier (the pitch agreement). The Mobile Homes Act 1983 (MoHA 1983) prescribed the circumstances in which title to the mobile home could be sold or transferred with the benefit of the pitch agreement so that it enured for the benefit of the assignee. Though the benefit and burden of the pitch agreement only passed if the (complex) statutory provisions were complied with, nothing in the legislation imposed any specific requirements or restrictions on the transfer of the mobile home as a chattel. The son was not a person residing with the deceased in default of a widow, widower or surviving civil partner in accordance with MoHA 1983, s 3(3)(a), nor was he entitled to the mobile home by virtue of the deceased’s Will or under the law relating to intestacy under MoHA 1983, s 3(3)(b) and therefore the pitch agreement did not pass for his benefit nor was he bound by it. The Deed of Assignment was however effective at law to transfer title to the mobile home to him, but as he was not entitled to station it on the mobile home park, its value would be very substantially affected.

 

Case details

  1. Court: Upper Tribunal (Lands Chamber)
  2. Judge: His Honour Judge Stuart Bridge
  3. Date of judgment: 27 February 2020

 

 

This article was first published by Lexis®PSL on 09/06/2020

“Trustees in the Firing Line”

Author: Alexander Learmonth QC

Date: 01 Jun 2020

Alexander Learmonth contributed an article to the STEP journal, “Trustees in the Firing Line” on Price v Saundry.

The pitfalls of voluntary rectification (MV Promotions v Telegraph Media Group)

Author: James Saunders

Date: 29 May 2020

Commercial analysis: The court in MV Promotions considered a part 8 claim for a declaration of construction or, alternatively, rectification. The relevant mistake was as to the identity of one of the contracting parties. The remedy sought would have tax consequences, but the contracting parties had not been motivated by those consequences at the time of contracting. The court rejected the construction claim and declined to exercise its discretion to grant rectification, despite the preconditions for rectification have been made out. This case provides a stark illustration of the need for caution when seeking to remedy issues voluntarily, particularly in cases where tax is a concern. 

 

MV Promotions Ltd and another v Telegraph Media Group Ltd and another [2020] EWHC 1357 (Ch) (29 May 2020) 

 

To read more, please click here.

Construing erroneously drafted public facing documents—construction declaration or rectification? (Pathway Finance SARL v Defendants)

Author: James Saunders

Date: 21 May 2020

James Saunders writes for Lexis Nexis and considers the case of Pathway Finance which considered the proper approach to construction of public facing documents in the form of registered company charges, what relevant background knowledge will include and whether rectification is available as an alternative remedy.

 

To read more, please click here.

Diversion of public footpaths made easier (R (Open Spaces Society) v Secretary of State for Environment, Food and Rural Affairs)

Author: George Laurence QC | Simon Adamyk

Practice Areas: Property

Date: 20 May 2020

Local Government analysis: Use by the public of a public footpath or bridleway which crosses a person’s land can be very intrusive. It can threaten the owner’s privacy and security, especially if the public can see into the house from the path. On the other hand, the house may be one of distinction. To be able to view it while passing by may, for the public, add materially to the enjoyment of doing so. Section 119(1) of the Highways Act 1980 (HA 1980) confers power on a council to make a diversion order in the ‘interests’ of the ‘owner, lessee or occupier of land crossed by the path...or of the public’. Where it does so, there may be objections. In that event an inspector has to decide whether to confirm the order. Provided the inspector is satisfied that confirmation would indeed be in the interests of the owner (test 1) and that the new path will not be ‘substantially less convenient’ than the existing path (test 2), the inspector will be entitled to confirm the order but only if satisfied that it is expedient to do so ’having regard to the effect which’ the diversion will have on the public’s enjoyment of the path as a whole and on the land of certain adjoining owners (see HA 1980, s 119(6)(a), (b) and (c)) (test 3).In the case, Lieven J has held that the inspector is also bound, in deciding at the test 3 stage whether to confirm, to take into account the interests of the owner or of the public (as the case may be), even though the relevant interests are not expressly included in the matters to which the inspector is to have regard. Written by George Laurence QC, barrister, and Simon Adamyk, barrister, at New Square Chambers.

Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 1085 (Admin) 

 

To read more, please click here.

 

This article was first published by Lexis®PSL on 11/05/2020.

CASE ANALYSIS - Lexis®PSL Dispute Resolution: Case analysis (Ref 1819). Out of time challenge to jurisdiction results in default judgment (Plekhanov v Yanchenko)

Author: Christopher Snell

Date: 13 May 2020

Dispute Resolution analysis: The court refused a challenge to its jurisdiction that was made outside of the time limits prescribed by the rules. As a consequence of the failure to challenge jurisdiction, the court also entered default judgment against Yanchenko. This case provides useful discussion of the procedural requirements of challenging jurisdiction; the principles applicable to extensions of time when the deadlines are missed; and the interplay between default judgment and a failure to successfully challenge jurisdiction. It is also useful in its discussion of the recently re-drafted default judgment provisions: CPR 12.3(1). Written by Christopher Snell, barrister, at New Square Chambers. 

 

To read more, please click here.

Actions speak louder than words—remedying material breaches (Bains v Arunvill Capital Ltd)

Author: James Saunders

Date: 24 Apr 2020

Commercial analysis: The Court of Appeal in Bains considered the proper approach to remedying material breaches of contract where contractual termination clauses are engaged and relied upon. Breach notices will require a cautious interpretation and parties would be well advised to clarify exactly what performance the contractual counter-party considers essential to remedy a breach. Bains confirms that actual performance will be necessary and merely stating an intention to perform will not go far enough. Questions of the extent of catch-up or restored performance required are left open after the decision. Written by James Saunders, barrister, at New Square Chambers.

Bains v Arunvill Capital Ltd and another [2020] EWCA Civ 545 

 

To read more, click here.

Covid-19 Extensions of Time; CPR PD 51ZA (Muncipio De Mariana and others v BHP Group plc (formerly BHP Billiton)

Date: 20 Apr 2020

Dispute Resolution analysis: The Court granted an extension of time to file reply evidence in the context of an application of challenge the Court’s jurisdiction; despite the fact that the result of the extension of time would mean that the original hearing date would be lost. The effect of the Covid-19 pandemic was to significantly increase the amount of time required of the lawyers and experts in order to achieve the provision of the reply evidence. This was so even making the best use of available technology. Written by Christopher Snell, Barrister at New Square Chambers.

 

Muncipio De Mariana and others v BHP Group plc (formerly BHP Billiton) [2020] EWHC 928 (TCC) 

 

To read the full analysis, click here.

Caldicott and others v Richards and another [2020] EWHC 767 (Ch)

Date: 03 Apr 2020

A sale of shares from trust to a trustee was set-aside, on terms, on the basis of breach of the self-dealing rule, despite being carried out in good faith, on the basis of sound valuation advice and with specialist legal advice.  The case highlights the need for “fully informed consent” to be obtained from all beneficiaries and makes clear that standard form exoneration clauses may not fully protect a fiduciary from a claim of this kind.  

 

 To read the full article, please click here.

Lewin on Trusts

Author: Nicholas Le Poidevin QC | Lynton Tucker | James Brightwell

Practice Areas: Trusts, Wills & Estates

Date: 24 Feb 2020

Now in its 20th Edition, Lewin on Trusts is the go-to text on all aspects of trusts law, including creation of trusts, jurisdiction and choice of law, the role and duties, indemnity and remuneration of trustees, the rights of beneficiaries, dispositive and administrative powers concerning trusts, trust proceedings and remedies, and regulation of trusts and trustees. The text gives an in-depth analysis of general principles, and practical considerations.

Lewin on Trusts was Wildy’s Book of the Month in April 2020, and is available for purchase here.

Williams Mortimer & Sunnucks: Executors, Administrators and Probate

Author: Alexander Learmonth QC | Leigh Sagar | Aidan Briggs | Charlotte Ford | Julia Clark | John Ross Martyn

Practice Areas: Trusts, Wills & Estates

Date: 23 Feb 2020

Williams, Mortimer and Sunnucks is one of the leading authorities on the subject of the law of probate, and the administration of estates. It offers an in-depth analysis of the law, covering the grant of probate and administration, non-contentious and contentious practice, devolution and liability, and the administration and distribution of assets. It also explains the application of the law in practice.

The 21st Edition is available to buy here.

Theobald on Wills

Author: Alexander Learmonth QC | Charlotte Ford | Thomas Fletcher | Master Clark | Master Shuman

Date: 21 Feb 2020

The forthcoming 19th Edition of Theobald on Wills provides an unrivalled blend of academic analysis and practical advice on the law of wills. The text covers every aspect of the subject, from the fundamental principles of will making, to practical issues, and the latest case law.

The new edition is available to pre-order here.

 

Hollington on Shareholders' Rights

Author: Robin Hollington QC

Date: 20 Feb 2020

Hollington on Shareholders’ Rights offers definitive guidance on the statutory remedies for protection of minority shareholders, including unfair prejudice petitions, just and equitable winding up petitions, and derivative claims. It also contain a comprehensive discussion of the articles of association and shareholders’ agreements, directors’ duties, and the principles of partnership law adopted into company law.

The 9th Edition was published in August 2020, and is available to buy here.

The Digital Estate

Author: Leigh Sagar

Practice Areas: Trusts, Wills & Estates

Date: 19 Feb 2020

The Digital Estate provides an analysis of the rights and liabilities associated with digital information passing from, to and through computing and other devices owned and controlled by fiduciaries, including trustees, personal representatives, lasting and other attorneys.

The 2nd Edition will be published in July 2021, and is available to pre-order here.

 

'Promises, promises': Inheritance and succession disputes

Date: 19 Feb 2020

Arguments over farms are a sign of the times for farming families, and despite testamentary freedom being an established principle of English law, there has been a big increase in the number of cases taken to court, challenging wills made by parents, and over promises made about who inherits the farm.

 

Click here to read more: http://bit.ly/39MXg1a

Assets of Community Value: Law and Practice

Author: Simon Adamyk

Practice Areas: Property

Date: 18 Feb 2020

This is the first book to deal in detail with the law relating to buildings or other land nominated under the Localism Act 2011 by a voluntary or community body with a local connection and listed by the local authority because their use is considered to further the social wellbeing or social interests of the local community. The Property Law Journal has described it as “the standard work” in this field, and the Law Society Gazette said that “no practitioner in this area should be without it.”

The text can be purchased here.

 

Disposals of cryptoassets, tax & the UKJT Legal Statement

Date: 29 Jan 2020

Leigh Sagar looks at the mechanics and tax implications of cryptoasset disposals in the light of the UK Jurisdiction Taskforce Legal Statement on cryptoassets and smart contracts

 

To read the full article, click here: https://www.scl.org/articles/10801-disposals-of-cryptoassets-tax-the-ukjt-legal-statement

Arbitration clauses in trusts: a human rights issue?

Author: Aidan Briggs

Practice Areas: Trusts, Wills & Estates

Date: 09 Jan 2020

Trusts & Trustees, Volume 25, Issue 10, December 2019, Pages 1022–1024.

Abstract:

Can settlors require beneficiaries and trustees to submit their trust disputes to arbitration? This article examines three of the key arguments favour of enforcement, and the major difficulties posed by the caselaw emanating from the European Court of Human Rights in Strasbourg. It also puts the English law position in an international context.

Much has been written, both in previous editions of this journal and elsewhere, on the vexed question of whether a clause in a trust instrument which requires any dispute between trustees and beneficiaries to be submitted to arbitration is enforceable. Practitioners and academics remain divided on this central issue, and unfortunately we still await a decision of the English courts to put an end to the debate.

Alice, Bob and Carol in "The Crypto Space"

Date: 28 Nov 2019

Alice, Bob and Carol and friends who often meet for coffee at the establishment owned by their friend, David and which he calls “The Crypto Space”. On this occasion, the time has come to settle their bill and the conversation turns to payment …

Beneficiary disputes: Lines v Wilcox

Date: 10 Oct 2019

What is a trustee’s role when there is a dispute to be brought on behalf of the estate which is in the interests of one beneficiary at the expense of another? If the dispute is essentially one between the beneficiaries, can the trustee adopt a neutral position and leave the beneficiaries to litigate between themselves? Do the beneficiaries have standing to bring claims that properly belong to the estate? This article addresses these questions, which were recently considered by HHJ Paul Matthews (sitting as a Judge of the High Court) in Lines v Wilcox [2019] EWHC 1451 (Ch).