News
July 2010
Here is a summary of just some of the cases that our members have been involved in this year:
Shan Warnock-Smith QC acted in:
Re Mrs L (Grand Court of the Cayman Islands, unreported) - this case concerned the approach of the Cayman court to the property and affairs jurisdiction under the Mental Health Law.
MEP v Rothschild Trust Cayman Ltd (Grand Court of the Cayman Islands, unreported) - this case concerned the jurisdiction of the court under section 63 of the Trusts Law ( in similar terms to section 57 Trustee Act 1925) to confer a power to partition a trust fund. A pdf of the judgment can be found here.
Sutton v England [2010] WTLR 335, [2009]EWHC 3270 (Ch) - this concerned the jurisdiction of the English court under section 57 Trustee Act 1925 to confer a power to partition a trust fund. Barbara Rich also appeared in this case.
Penelope Reed QC acted in:
RSPCA v Sharp [2010] WTLR 855, [2010] EWHC 268 (Ch) - the High Court held that the correct construction of a will was that an amount of money up to the level of the nil-rate band and a property were to pass to named beneficiaries without any Inheritance Tax being paid on those gifts. The tax was to be borne by the residuary estate, which had been given to the applicant charity.
Alkin v Raymond (unreported) - two trustees were removed where they had sanctioned the payment of an invoice to a company owned by one of them, but the invoice was not a properly drawn bill for money due to the company.
Perrins v Holland [2010] EWCA Civ 840 - the Court of Appeal held that the principles in Parker v Felgate (1883) L.R. 8 P.D. 171 in relation to testamentary capacity were still good law.
Jiggens v Low [2010] EWHC 1566 - the High Court held that a deed of appointment made under a discretionary power by trustees of a settlement was void under the rule in Re Hastings Bass [1975] Ch.25 as the trustees had not intended to make an absolute disposal of capital to the defendant beneficiaries, which would have adverse tax consequences.
Barbara Rich acted in:
Gorjat v. Gorjat [2010] EWHC 1537 (Ch) - in which the claimants challenged in the High Court the validity of a transfer by their father of funds in Swiss bank accounts a few months before his death, on the grounds of incapacity and undue influence. The case also involved issues of forum and applicable law.
Kings v. Bultitude [2010] EWHC 1795 (Ch) - a case involving a gift of residue in a will to the "Ancient Catholic Church", an independent denomination founded in 1950 and of which the testatrix had been the last surviving minister. Although essentially Christian in origin, the activities of the church included services of animal blessing and clairvoyance by the time of the testatrix's death. Barbara acted for the intestacy beneficiaries who successfully argued in the High Court that the initial charitable purpose of the gift had failed on the testatrix's death, and that the gift could not be applied cy-pres.
Anna Clarke appeared for the successful appellant in Smith v Cooper [2010] EWCA Civ 722 - a case concerning co-habitation, the rebuttal of a presumption of undue influence and practical justice by restitution on the setting aside of transactions.
February 2010
We are pleased to announce that Karen Walden-Smith has been made a Circuit Judge. She has been assigned to the South Eastern Circuit, based at Chelmsford Crown Court with effect from Wednesday 17 March 2010. She will also be sitting in the Chancery List of the Central London Civil Justice Centre.
5 Stone Buildings is once again ranked highly in the Chambers and Partners 2010 Directory, with many members ranked in seven areas of law. For more details please see the website here.
October 2009
Members of 5 Stone Buildings have been in the forefront of recent developments in estate litigation.
Tracey Angus acted for Dr Christine Gill in her successful claim against the RSPCA
A case which attracted widespread news coverage and comment. Dr. Gill’s mother had left the family farm to the RSPCA rather than to the daughter to whom it had always been promised. The claim succeeded both on the ground of proprietary estoppel, and on the challenge to the validity of the Will on the grounds of undue influence.
Penelope Reed QC successfully proved a privileged will made by a merchant seaman
In the case of Ayling v Summers [2009] EWHC B21 (Ch). It was the first case of its kind to be reported for over 20 years and involved questions of whether the person to whom the Deceased’s wishes had been communicated had come up to proof and whether the privilege extended to a merchant seaman who was serving on a foreign ship and employed by a foreign shipping company.
Henry Legge acted for the successful claimant in Martin v Triggs Turner Barton [2009] EWHC 1920 (Ch)
The defendant solicitors were found negligent in failing to draft the will of a testator in accordance with his instructions relating to an express power of advancement of capital to his widow. They had also given negligent advice to her after the testator’s death as to the allocation to income and capital of the proceeds of national savings certificates held by the estate and the claimant’s entitlement to a widow's pension. This is the first case in which solicitors have been held liable under White v Jones for loss suffered by the claimant as the object of a power and the first case in which professional executors have been held to owe a duty of care in negligence to a beneficiary of the estate in relation to issues arising in the course of administration.
Barbara Rich acted in Macdonald v. Frost [2009] EWHC 2276 (Ch)
A testamentary promise proprietary estoppel case which provided one of the first opportunities for the High Court to consider and apply the principles of the House of Lords in Thorner v Major. Even though the claimants did not succeed in proving a sufficiently clear assurance of inheritance, their liability for the defendant’s costs was significantly limited because the defendant had unreasonably failed to agree to mediation.
For further information on these cases or our members who acted in them please contact clerks@5sblaw.com
Barbara Rich shortlisted for STEP Private Client Awards Elder Client Law Professional of the Year
We are pleased to announce that Barbara Rich has been shortlisted for the Elder Client Law Professional of the Year by the Society of Trust and Estate Practitioners (STEP). These awards highlight excellence and innovation among private client professionals and wealth managers worldwide. The Elder Client Law Professional of the Year is a new category in the Private Client Awards and Barbara is the only barrister to be shortlisted.
5 Stone Buildings is long-established as a leading set in this area of the law. In the last year Barbara Rich, together with several other members of chambers has acted in two leading decisions under the Mental Capacity Act 2005:
Re S & S [2009] WTLR 315 - judgment of HHJ Hazel Marshall QC on the role of an incapacitated adult's own wishes in decision-making under the Mental Capacity Act.
Re P [2009] WTLR 651 - landmark judgment of Lewison J on the approach to making a statutory will under the Mental Capacity Act.
Barbara is also a contributor to Heywood & Massey: Court of Protection Practice and has written and lectured widely on this area of law. She is recommended as a leading junior in both the Chambers & Partners and the Legal 500 directories.
The awards ceremony is to be held on Tuesday 13th October 2009 at the London Hilton on Park Lane.
The Society of Trust and Estate Practitioners (STEP) is a unique professional body for trust and estate professionals worldwide. STEP provides education, training, representation and networking for its members, who specialise in trusts and estates, executorship, administration and related taxes. Full members of STEP are the most experienced and senior practitioners in the field of trusts and estates.
House of Lords Judgment
The Lords have now given their opinions in Thorner v Majors [2009] UKHL 18. It is the first case in which the House of Lords have upheld a claim for proprietary estoppel since Ramsden V Dyson [1866] LR 1 HL 129. The Estate was represented by Andrew Simmonds QC and Penelope Reed, whose written and oral argument was praised by their Lordships. Click here to download
In their opinions their Lordships make clear that testamentary proprietary estoppel has survived the decision in Yeoman's Rowe v Cobbe [2008] UKHL 55. They allowed the Applicant's claim that he had an interest in his cousin's farm on the basis of a representation by the Deceased in the form of words "this is for my death duties" upon handing to the Applicant a bonus note and the Applicant's twenty years of unpaid work on the Deceased's farm. It is likely that the case will make it easier for claimants to make a claim on the basis of testamentary proprietary estoppel and it will be harder for decisions at first instance to be appealed.
Both Lord Walker and Lord Neuberger comment in detail on the nature of a claim of testamentary proprietary estoppel, particularly in relation to the certainty of interest required to make out a claim. Lord Scott's comments are particularly interesting, suggesting as he does that the claim should give rise to a 'remedial constructive trust'.
Citywealth Leaders 2009
Shan Warnock-Smith and Henry Legge both appear in the list of Prominent Barristers (Trust) section of the fourth annual Citywealth leaders list.
5 Stone Building rankings 2008/9
This chambers, described as one of Lincolns Inns' "top sets" and "Chancery powerhouse", is again ranked highly in the legal directories. Please see their websites for further details.
5 Stone Buildings acts in landmark Court of Protection case
Re P [2009] EWHC 163 (Ch) is the published version of an important judgment of Lewison J on the jurisdiction of the Court of Protection to make a statutory will under the Mental Capacity Act 2005. David Rees, Michael O'Sullivan, Barbara Rich and Alan Boyle QC acted respectively for the applicant, the litigation friend and an interested party.
It is the first judgment of a High Court judge sitting as a nominated judge of the Court of Protection on a statutory will since the 2005 Act came into force in 2007. It sets out the radical change to the jurisdiction made by that legislation. For twenty five years before the 2005 Act came into force, all statutory will applications had been decided following the guideline assumptions in Re D(J) [1982] Ch 237, the aim of which was to determine the will which a person who lacked capacity would make in a lucid interval if he were not mentally disordered. In Re P Lewison J has reviewed the law in depth, and made it clear that these counter-factual assumptions and the substituted judgment of the court are not part of the test of best interests under the 2005 Act. Instead, the court must make a decision in P's best interests, adopting the approach to best interests developed under the pre-2005 Act jurisprudence in relation to welfare and healthcare decisions, and explicitly following the guidelines set out in s4 of the 2005 Act. An article about the decision appears in our most current chambers Newsletter, Issue 11.
We are pleased to have been involved with the development of the jurisprudence under the 2005 Act, and copies of the approved public judgment are available here.
Trust and Estates Litigation Forum in Provence
Shan Warnock-Smith QC is chairing the third Trust and Estates Litigation Forum in Provence from 26th to 28th February 2009, at which Penelope Reed will be speaking. More details can be found at www.legal week.com/events.
January 2009
Judgment awaited from the House of Lords
Judgment is awaited from the House of Lords in the case of Thorner v Majors - a proprietary estoppel case in which Andrew Simmonds QC and Penelope Reed appeared.
Trust Taxation 2nd Edition
Emma Chamberlain and Chris Whitehouse have now produced a larger and better 2nd edition of Trust Taxation which has been published by Sweet and Maxwell receiving excellent reviews. It can be ordered online through the website, www.sweetandmaxwell.co.uk. They have recently produced a bulletin for Dymonds Capital Taxes on Tax Planning options and have lectured widely on the FA 2008 changes.
They are running a conference in London for Private Client practitioners on 5th February, Private Client Tax Planning after the Pre-Budget Review covering a wide range of tax and private client issues. Further details and booking details can be found at www.irr-events.com/PBR or by calling 020 7017 7790.
5 Stone Buildings prominent in Court of Protection litigation
Our members who specialise in Court of Protection work have been very busy during the past few weeks, acting in some cases of particular interest.
Shan Warnock-Smith QC, David Rees (instructed by the applicants) and Barbara Rich (instructed by the Official Solicitor) all acted in an urgent application for a statutory will involving sensitive and highly contentious claims in a multi-million pound estate. Following two hearings at the Court of Protection in Archway the claim was eventually compromised and the compromise approved by Norris J as a nominated judge of the Court of Protection.
Barbara Rich (instructed by the appellant) and Thomas Entwistle (instructed by the protected parties) acted on a successful appeal to HHJ Marshall QC as a nominated judge of the Court of Protection from a decision of one of the district judges of the Court about the appointment of a property and affairs deputy. The judgment, which has been anonymised for publication at the direction of the judge, contains an important analysis of the role of the protected person's own wishes and feelings in decision-making under the Mental Capacity Act 2005. It also considers the proper approach to the Court of Protection's jurisdiction to review decisions it has made without a hearing. If you would like to read a copy of the judgment, please contact Annie Girling on 020 7421 7870.
David Rees, Barbara Rich and Michael O'Sullivan are currently acting for separate parties to an application for a statutory will dealing with foreign domiciliaries and settled interests in an estate worth several million pounds. The case is due to be hear by a High Court judge sitting as judge of the Court of Protection early in 2009.
Shan Warnock-Smith has been named as one of the Top 20 Lawyers in the 2008 Citywealth Leaders list, and is the only barrister listed. She is also the Chairman of the Judges at this year's STEP awards.
Repeat Seminar
We repeated the successful seminar on the "Mental Capacity Act 2005 and the New Court of Protection" on Tuesday 29th April at Staple Hall Inn.
February 2008
Penelope Reed and Barbara Rich will both be speaking at the CLT conference, "Avoiding Negligence Claims in Wills and Probate", to be held in London on 10 March 2008.
January 2008
Tolley's Capital Gains Tax Conference
Christopher Tidmarsh QC will be the keynote speaker at the Tolley's Conference, "Capital Gains Tax Planning under the New Regime", to be held in London on 24 April 2008.
December 2007
Success in Estate Case
Penelope Reed successfully acted for Mr and Mrs Man in the estate of Golda Bechal where her will in their favour was upheld.
November 2007
HHJ Alastair Norris QC appointed as a High Court judgeWe congratulate HHJ Alastair Norris QC on his appointment as a High Court judge, amongst the first two beneficiaries of the new Judicial Appointments Commission selection process, chaired by Baroness Prashar.
He took up the appointment on 1 October 2007.
5 Stone Buildings rankings 2007/8
Over 70 per cent of 5 Stone Buildings members are now ranked as leading juniors or silks in Chambers UK and The Legal 500. Many members were also recommended in Legal Experts 2006.
Chambers and its members are recommended for traditional Chancery (including trusts, estates and personal taxation), pensions, agriculture and real property (including settled land and commercial and residential property), costs, partnership, and charity work. Please see the directories websites for further details:
February 2007
Death of Sir Michael Hart It is with great sadness that we announce the death of Sir Michael Hart on Tuesday 20 February 2007. Sir Michael was a member of these chambers from 1970 until his appointment as a judge of the High Court in 1998. He was a formidable barrister and a wise judge but will be remembered here above all as a kind and generous friend.
Sir Michaels funeral was on Friday 2nd March at 11am at Grays Inn chapel.
Further details may be obtained from David Jenkins at Grays Inn (0207 458 7800).
January 2007
Launcelot Henderson QC sworn in as High Court Judge
Launcelot Henderson QC was sworn in as a High Court Judge by the Chancellor on Friday, 12 January 2007 followed by a welcoming on behalf of the Bar on Monday, 15 January 2007.
December 2006
5 Stone Buildings is delighted to announce that Launcelot Henderson QC has accepted an invitation to sit as a full time High Court Judge in the Chancery Division of the High Court. Launcelot follows other former members including Michael Hart QC, Martin Nourse QC and Robert Walker QC who have before him taken a position on the Bench following illustrious careers at the Bar.
News Archive