Publications

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.

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

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

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.

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.

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 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.

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 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 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.

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

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.

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

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 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 …

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).