Michael O'Sullivan - 5 Stone Buildings
Junior counsel / Mediators

Michael O’Sullivan

Call to Bar:1986

Chambers UK 2012

Highly sought after for advice and representation on the spectrum of tax, trusts and estates matters.

Michael has a chancery practice focused mainly on trust, probate Court of Protection and estate litigation. In addition to that he undertakes a significant volume of professional negligence litigation concerned with tax planning and will drafting and estate administration where he acts for both claimants and defendants. He is also well versed in capital taxation work and regularly advises in relation to inheritance tax, capital gains and SDLT planning and mitigation. He has acted for a number of high profile clients in the entertainment industry and in the aristocracy.

5 Stone Buildings - brick wall
Chambers 2017 Court of Protection Property & Affairs

He is always sensible, realistic and user-friendly."

Chambers UK 2012

Charismatic with a calm and reasoned approach and a great sense of humour."

Legal 500 2010

Approachable and extremely helpful."

About Michael O’Sullivan

Professional Reputation

“Experienced and takes a pragmatic approach.” “Produces quality opinions and drafting with speed and efficiency.”

Chambers 2017 Chancery Traditional

“He is always sensible, realistic and user-friendly.”

Chambers 2017 Court of Protection Property & Affairs

“He has great presence”

He “advises comprehensively, and has a thorough understanding of the issues involved”

“He makes his case well and is a pleasure to deal with”

Chambers UK 2014

Highly sought after for advice and representation on the spectrum of tax, trusts and estates matters”

“Charismatic” with a “calm and reasoned approach” and a “great sense of humour”.

Clients warm to his “approachable and user-friendly manner”.

Chambers UK 2012

“Thoroughly good from a technical point of view” and “never ruffled in court, knows how to push a case forward”.

Chambers UK

“Approachable and extremely helpful.”

Legal 500 2010

Trusts and Inheritance

Michael is very experienced in relation to both the contentious and non-contentious aspects of trust law and the administration of estates. He has advised the trustees of several substantial landed estates in relation to trust disputes. He has also advised trustees who are embroiled in divorce litigation affecting trust beneficiaries. He has conducted numerous contentious probate actions and prosecuted and defended many claims under the Inheritance (Provision for Family and Dependants) Act 1975. He has acted in a number of claims under Section 50 of the Administration of Justice Act 1985 (removal of executors) and in claims for breach of trust and the removal of trustees.

Recent matters include As the father of a disabled child he has a special interest in disabled trusts and the taxation thereof and personal injury trusts.

  • Khan v Crossland [2012] WTLR Removal of Executor under S116 SCA 1981
  • Austin v Woodward [2011] EWHC 2458 (Ch) rectification of a will under Section 20 Administration of Justice Act 1982
  • Carr v Ennals [2008] EWHC 2859 (Ch) (probate challenge to will on grounds of lack of capacity in case where testator suffering from a brain tumour)
  • Tchillingrian v Ouzounian [2003] WTLR 709 (probate challenge to will on grounds of mental incapacity, lack of knowledge and approval and undue influence
  • Re Dawes Deceased (unreported) – application in relation to the estate of Christopher Dawes involving removal of trustee of charitable trust worth £20m
  • Re Rosenfeld (unreported) application under Variation of Trusts Act 1958 involving a substantial estate
  • The Right Hon Rupert Charles Ponsonby (8th Baron de Mauley) v Right Hon John Charles Sholto Douglas (Earl of Morton)– claim for breach of trust against executors of  tenant for life – the 6th Baron de Mauley
  • Carr v Ennals [2008] EWHC 2859 (Ch) – probate challenge to will on grounds of lack of capacity in a case where the testator was suffering from a brain tumour
  • PEER v EMC [2007] ECDR 1 [2006] EWHC 2883 – succession issues relevant to claim to UK-copyright in various jazz compositions by Cuban artists (as featured in the Buena Vista Social Club)
  • Allardyce v Roebuck [2004] 3 All ER 754 – time limits on testamentary options to purchase property

Michael has also been instructed in cases not within the public domain including advising aristocracy in relation to family provision, divorce claims and the administration of dynastic trusts.

Court of Protection

Michael has acted in a number of significant Court of Protection cases. He has wide experience of contested statutory will cases and cases involving contested deputyships and attorneyships.

He appeared in Re P [2010] Ch 33 which was the first reported decision of a High Court Judge (Lewison J) on the jurisdiction to make statutory wills under the Mental Capacity Act 2005 and the principles to be applied. He has also appeared in the following cases:

  • Re Peter Jones [2014] EWCOP 59 – a statutory will case involving cross border issues
  • EB v RC [2011] EWHC 3805 Removal of a Deputy under MCA 2005
  • D v JC [2012] WTLR 1211 statutory will involving applicant who had been adopted
  • Re MN [2010] WTLR 1719 acting for applicant in a case involving alleged abduction of mentally incapacitated from the USA to the UK
  • Re Willey Court of Protection Welfare application concerning estate of £8 million where there was associated Chancery Litigation

He has also been involved as a mediator in Court of Protection matters acting under a pilot scheme promoted by the Office of the Public Guardian.

He has acted in a number of unreported Court of Protection matters involving multi million pound estates.

A commanding presence – he’s a man of few words but what he says is worth its weight in gold.” “A good advocate with a breadth of experience in this area.”

Chambers UK 2015 – Court of Protection

“He has great presence.” “An excellent barrister with fantastic drafting skills – he always makes time for you.”

Chambers UK 2014 – Court of Protection

“The “charismatic” Michael O’Sullivan “is accomplished and well earns his reputation.” O’Sullivan often acts in high-value Court of Protection matters in which substantial assets are in question, and offers “practical advice at a practical price.”

Chambers UK 2013 – Court of Protection

The “charismatic” Michael O’Sullivan is another top pick for property and affairs applications, and also has more than his share of reported decisions in his favour. He is well liked for his “calm and reasoned approach,” and, moreover, his “great sense of humour” is a treasured asset in what can be a gruelling and sensitive area of practice.

Chambers UK 2012 – Court of Protection

Professional negligence

Michael is regularly instructed by major insurers in relation to defence of professional negligence claims involving chancery matters such wills, estate administration and failed inheritance and capital gains tax planning transactions. His knowledge of tax gained from his private client trust practice means that he is au fait with the law of taxation. He has also acted in a number of cases that involved claims against Court of Protection deputies.

He is instructed by one of the country’s largest firms in connection with bank will writing schemes.

He has done numerous application for rectification of wills and has advised on the steps required to cure defects in wills or trust documents.

Recent matters

Acting in the defence of a multi-million pound claim brought against a solicitor and professional attorney in relation to the estate of a substantial land owner which was settled at mediation. The case involved allegations of tax planning negligence and breach of duty while acting as attorney.

Defending a large well-known City firm against a professional complaint that arose out of a deed of variation/tax planning transaction.

Acting for a prominent private client firm in relation to alleged bad drafting of a deed of appointment.

Advising an aristocratic family in relation to a claim against solicitors concerned with a badly-drafted deed of appointment.

Acting for defendant solicitors in a multi-party negligence claim involving failed inheritance tax planning involving FORTRA gilts. The claim was brought in the Isle of Man.

  • Herring v Shorts Financial Services [2016] WTLR 1203 acting for claimant in a claim against solicitors and financial advisers where a will was wrongly drafted. The case considers whether a financial adviser who provided information to a solicitor owed a duty of care to will beneficiaries.
  • Austin v Woodward [2011] EWHC 2458 (Ch); [2012] WTLR 559; rectification of wills and meaning of clerical error: test for permission to bring claim out of time.
  • Shirley v D J Freeman [2002] 01 EG 74 (CS) acting for defendant in successful striking out of a claim made in relation to conveyancing, boundaries and rights of way.
Real Property

In his first fifteen years of practice Michael did a large volume of real property litigation. As a result of this has a thorough grounding in the law of property and the law of landlord and tenant. He has acted in the High Court, Court of Appeal, County Court and Lands Tribunal in:

  • vendor purchaser disputes
  • boundary disputes
  • rights of way and easement disputes
  • adverse possession claims
  • landlord & tenant litigation involving both commercial and residential property
  • registered land disputes

In addition he has advised in relation to non-contentious transactions and has drafted leases, mortgages, and option agreements.

  • Allardyce v Roebuck (2004) 3 All ER 754 Rimer J Chancery Division. This case concerned the time limits for a testamentary option to purchase property. His opponent was Penelope Reed (5 Stone Buildings)
  • Asylum Seekers Management Ltd v Adelphi Hotels Ltd (CA) [2003] EWCA Civ 1892 construction of break clause in commercial agreement relating to management of properties occupied by asylum seekers
  • Banks v Cox 2000 Court of Appeal No. A3/2000/2099
  • Fraudulent misrepresentation on sale of nursing home business. The Court commented about his submissions “a strong case powerfully made by counsel for Mr and Mrs Cox”.
  • Denetower Ltd v Toop [1991] 1 WLR 945. First reported Court of Appeal case on Landlord and Tenant Act 1987 concerning tenants’ right to buy freehold.
Taxation

Michael has a substantial non-contentious practice involved with inheritance tax and capital gains tax planning related to trusts and estates. In addition he advises on income tax issues related to trusts and estates including pre-owned assets tax. He has also acted in cases involving SDLT and Stamp Duty.

He regularly drafts deeds of variation under Section 142 IHTA and deeds of appointment and trust deeds, wills and other documents concerned with tax planning. He has advised in relation to ta- planning arrangements.

He has advised in relation to the dismantling of past schemes such as double trust schemes.

He has acted for taxpayers against the Revenue in Tribunal proceedings.

He is currently involved in a number of claims against solicitors arising out of failed SDLT saving schemes.

As the father of a disabled child he has a special interest in disabled trusts and the taxation thereof and personal injury trusts.

“He has great presence.” “An excellent barrister with fantastic drafting skills – he always makes time for you.”

Chambers UK 2014 – Court of Protection

“Clients warm to due to his “approachable and user-friendly manner.” As well as being a noted expert on mental capacity issues, he is highly sought after for advice and representation on the spectrum of tax, trusts and estates matters, and related professional negligence cases.”

Chambers UK 2012 – Chancery Traditional

Mediation

Michael is an accredited mediator and was trained by ADR Chambers. He has a growing mediation practice and has conducted mediations in the following areas

  • Inheritance (Provision for Family and Dependants) Act 1975 claims
  • Probate disputes
  • Estate administration disputes including fee disputes
  • Court of Protection disputes
  • Professional negligence disputes

He acted as mediator in a number of Court of Protection mediations under a pilot scheme promoted by the Office of the Public Guardian. Michael’s knowledge of taxation issues enables him to assist parties in seeing angles that their own advisers may have overlooked.

As an advocate Michael has attended countless mediations in the course of his practice.

He is well liked for his “calm and reasoned approach,” and, moreover, his “great sense of humour” is a treasured asset in what can be a gruelling and sensitive area of practice.

Chambers UK 2012 – Court of Protection

Partnership

In the course of practice Michael has litigated a number of partnership disputes and is well versed in the subject. Many of these cases have involved large agricultural partnerships often where land is held under settlements (including Settled Land Act strict settlements). He has however also acted in relation to more humble businesses such as restaurants.

Recent matters

  • Advising a solicitor who had retired from a prominent Leeds firm on his position in relation to restrictive covenants and associated issues
  • Acting for a farming family where two branches of the family wished to go their separate ways, dissolve the partnership and partition land. Difficult issues of taxation were involved
  • Acting for the aristocratic Settled Land Act life tenant in a dispute between him and his son who was the remainder man. The dispute involved partnership issues, as well as trust and tax issues affecting a substantial landed estate
Education and Qualifications

MA Cantab (Magdalene College Cambridge 1982-85)

Inns of Court Law School 1985-86 called to Bar Lincoln’s Inn July 1986

BCL Oxon (St Catherine’s College Oxford 1986-87)

Hubert Greenland Scholar Lincoln’s Inn

Pupillage 1987-88 (pupil Maters included Charles J and Norris J as they now are)

Accredited Mediator – ADR Chambers

Publications

Michael is the author of:

  • Asset Protection (published by Butterworths in 2000) – a textbook on the law relating to asset protection which deals with both the English law and the law of several foreign jurisdictions
  • A Practitioners Guide to Trustee Investment (published by Lexis Nexis/Tolley in 2004) – a guide dealing with the law of trustee investment in the light of the introduction of the Trustee Act 2000

Michael is also a contributing author to the chapters on Purpose Trusts and Protective Trusts in Tolleys Trust Drafting and Precedents.

Michael is the author of Lexis Nexis practice notes on

  • Asset Protection Trusts;
  • Blind Trusts
  • Protective Trusts.

Michael has written various articles, including:

  • Trusts and Estates Law  and Tax Journal April 2007: Re Horley Town Football Club (Gifts to unincorporated associations)
  • STEP Journal 2006: Trustee Investment in Private Companies
  • Trusts and estates Law Journal 2006: Case note on Raitu v Conway (breach of fiduciary duty and piercing of corporate veil)
  • ACTAPs newsletter 2005: Professional negligence in relation to tax planning
Professional Memberships
  • STEP (Society of Trust and Estate Practitioners)
  • ACTAPS (Association of Contentious Trust and Probate Specialists)
  • The Chancery Bar Association
Publications

Michael is the author of:

  • Asset Protection (published by Butterworths in 2000) – a textbook on the law relating to asset protection which deals with both the English law and the law of several foreign jurisdictions
  • A Practitioners Guide to Trustee Investment (published by Lexis Nexis/Tolley in 2004) – a guide dealing with the law of trustee investment in the light of the introduction of the Trustee Act 2000

Michael is also a contributing author to the chapters on Purpose Trusts and Protective Trusts in Tolleys Trust Drafting and Precedents.

Michael is the author of Lexis Nexis practice notes on

  • Asset Protection Trusts;
  • Blind Trusts
  • Protective Trusts.

Michael has written various articles, including:

  • Trusts and Estates Law  and Tax Journal April 2007: Re Horley Town Football Club (Gifts to unincorporated associations)
  • STEP Journal 2006: Trustee Investment in Private Companies
  • Trusts and estates Law Journal 2006: Case note on Raitu v Conway (breach of fiduciary duty and piercing of corporate veil)

ACTAPs newsletter 2005: Professional negligence in relation to tax planning