Latest article from Joss Knight | A common intention constructive trust claim where the legal owner has passed away
Joss Knight, member of our wills and trusts team, writes an article for the Summer edition of the Trusts & Estates Journal in which he examines a claim for an interest in property on the basis of constructive trust brought after the legal owner has died.
Joss has particular experience of dealing with such claims having acted for the successful Defendant in the High Court in the much-publicised case of Culliford v Thorpe  EWHC 426 (Ch). This case provides a useful example of the principles relating to common intention constructive trusts and proprietary estoppel in action.
This article was first published in Trusts and Estates Law & Tax Journal (July/August 2018) and is available at lawjournals.co.uk.
Download article: Gone but not forgotten
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Leslie Blohm QC, one of the country’s foremost chancery barristers, with experience of appearing in front of the highest courts in wills and trusts cases, has recently been instructed in the latest farming case to consider a claim to the family farm by a farmer’s child. Instructed by Robert James of Thrings, Leslie successfully acted for the Claimant in Gee v Gee  EWHC 1393 Ch.
The Claimant, now sixty years old, sought to succeed to the farm he was promised over decades. His father had recently given his interest in the family farm and the family farming company to his other son, a property developer. The case was complicated by the total denial by both the father and the other son of any promises being made to the Claimant, the nature of the promises that were claimed (relating to the ‘lion’s share’ of the farm), and the fact that the mother had already given her share of the farm and company to the Claimant son to try to remedy what she saw as unjust behaviour.
Mr Justice Birss heard evidence over five days and awarded the Claimant son his expectation interest, but with the detailed order to await a subsequent hearing.
Download judgment: Gee v Gee  EWHC 1393 Ch
Leslie is at the forefront of many farming estate cases having recently represented Lucy Habberfield in her claim against her mother for a share of her mother’s and father’s farm, relying on many promises said to have been made to her during the period when she worked on the farm for low wages and for long hours. He also represented the Claimant in the case of Davies v Davies  EWCA Civ 568 (the ‘Cowshed Cinderella’ case), both in the High Court and in the Court of Appeal, in her claim to an entitlement to or interest in the family pedigree Holstein/Friesian dairy farm resulting from years of underpaid work.
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Nick Pointon, member of our Commercial and Chancery Practice Group, together with Advocate James Dickinson of Dickinson Gleeson, acted for the successful party, Advocate Philip Sinel, in landmark proceedings before the Jersey Court of Appeal (Bompas JA, McNeill JA and Wynn-Williams JA). The proceedings concern the standing of lawyers to sue for breach of confidence relating to documents and information generated in the privileged context of a lawyer / client relationship.
Advocate Sinel brought proceedings against Mdme. Moira Hennessy (of the Hennessy Cognac family), who received a package of highly confidential documents which had very likely been wrongfully obtained from either Advocate Sinel or his client. Mdme. Hennessy brought a summons seeking to set aside leave to serve those proceedings on her out of the jurisdiction, on the basis that the only party with standing to assert any privilege or confidentiality in the documents or their contents was Advocate Sinel’s client. At first instance the Royal Court of Jersey (Sir William Bailhache, Bailiff) acceded to that summons and set aside leave to serve proceedings out on Mdme. Hennessy, applying a little known decision of Blackburne J in Nationwide Building Society v Various Solicitors (No 2)  All ER (D) 119 in which it was held that lawyers do not have standing to seek injunctive relief restraining infringement of privilege belonging to their clients.
On appeal to the Jersey Court of Appeal the order of the Royal Court was set aside. The Court of Appeal held that there was a good arguable case that Advocate Sinel had standing to sue for breach of confidence notwithstanding Nationwide (No 2). Of that decision Bompas JA said that “it is by no means certain that, were the facts of the Nationwide case again to come before the courts of England and Wales, the arguments or the result would be the same.”
Bompas JA went further and observed that:
“As a matter of first impression, as it seems to us, it would be surprising if someone owing fiduciary duties and possessed of information confidential to the person to whom the duties are owed, should be unable to restrain the use of that information when obtained improperly, quite probably from the fiduciary but possibly in some manner which the fiduciary cannot explain. In the present case the fiduciary is an advocate providing legal services to clients and to that end entrusted with confidential information. But equally the fiduciary might be, say, a trustee entrusted by a beneficiary with confidential information about the beneficiary’s circumstances to enable the trustee to exercise a power or discretion in relation to the beneficiary.”
The case and these remarks in particular are likely to be of considerable significance, both to the substantial fiduciary services industries in Jersey and other offshore jurisdictions, and to those in professional or non-professional fiduciary relationships on the UK mainland. They illustrate how the laws of privacy and confidence continue to develop apace, particularly in light of the transition of the European Convention on Human Rights into domestic law.
The Court of Appeal’s judgment may be found by clicking here.
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Head of our Wills and Trusts team, Alex Troup, instructed by Vlad Macdonald-Munteanu of Hugh James successfully represented Mrs Thompson in the recent High Court case of Thompson v Raggett  EWHC 688 (Ch).
Mrs Thompson brought a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975 against the estate of her late partner and cohabitee, Mr Hodge, whose will left his whole estate, valued at over £1,5 million, to his tenants. The estate mainly consisted of a caravan park and farm in West Wales.
The High Court granted Mrs Thompson an outright transfer of a cottage, valued at £225,000, which Mr Hodge had purchased specifically for him and Mrs Thompson to live in during their retirement. Mrs Thompson was also granted a lump sum of £160,000 for her future maintenance and care, plus a further £28,845 to renovate the property and facilitate her moving in.
In his letter of wishes accompanying his last will, Mr Hodge claimed that Mrs Thompson had substantial sums and finances to provide for herself, but the court accepted that Mrs Thompson was in fact financially dependent upon him. Given their 42 years of cohabitation and the unpaid work she carried out on the caravan park and farm, coupled with her financial dependency, she was awarded approximately 33% of the net estate.
The Court’s decision to grant Mrs Thompson an outright interest in the cottage is significant given that in Ilott v The Blue Cross  2 WLR 979 the Supreme Court indicated that if housing is provided by way of maintenance it is likely more often to be provided by way of life interest.
The key drivers behind the Judge’s decision to grant an absolute interest in the cottage were (a) the long period of cohabitation, (b) the cottage had been bought specifically to provide Mrs Thompson with a home, (c) the beneficiaries under the will had adopted Mr Hodge’s aversion to Mrs Thompson’s son (who would be caring for her) receiving anything, and (d) an outright interest would allow Mrs Thompson to make the necessary alterations to the cottage without having to seek permission.
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St John’s Chambers is presented with ‘Regional Set of the Year 2018’ award at Legal 500 UK Bar Awards
Chief Executive Derek Jenkins and Rob Bocock, Practice Manager at St John’s Chambers attended the Legal 500 UK Bar 2018 Awards ceremony at The Royal Exchange in London on 22nd February to collect our prestigious award for ‘Regional Set of the Year’.
Each year Legal 500 carry out in-depth research across the whole of the UK legal sector to identify the best sets out there, and this award clearly recognises St John’s as a stand out national set.
Thank you to all of our referees for their on-going support, without you this achievement would not have been possible. To view the full results please click here.
Our CEO, Derek Jenkins adds, “We are delighted to have won this prestigious national award which reflects the great work St John’s has achieved and recognises Chambers’ as a leading set.”
Michael Clarke successful in application for High Court to exercise inherent jurisdiction to order the provision of a DNA sample in an estate dispute
Commercial and Chancery barrister Michael Clarke, a Member of our Wills, Trusts and Tax Team, was instructed by Paul Gordon, litigation partner at Willans LLP solicitors who specialises in inheritance & trust disputes, to represent the successful applicant.
The applicant and respondent are sisters and both claim to be the daughters of the deceased Colin Birtles. The applicant alleges the respondent is not the biological daughter of the deceased. In 2013 the deceased died intestate. The respondent extracted a grant of letters of administration and claimed an interest under the estate.
The applicant has brought a claim for revocation of the grant, a grant to her instead, a declaration that the respondent is not entitled to the estate and to set aside a transaction between the estate and the respondent. The applicant has sought the consent of the respondent to DNA testing but she has declined.
The respondent was born to her mother Veronica while she was married to the deceased and the deceased subsequently paid maintenance to Veronica for the respondent until the respondent was 16. The respondent argued that she could rely on the presumption of legitimacy and that the challenge to her parentage was simply hearsay and so the application was a fishing expedition.
The issue was whether the Court had jurisdiction to order the respondent to submit to DNA testing. It was accepted by the applicant that the provisions of the Family Law Reform Act 1969 did not apply and that there was no direct authority that a person could otherwise be ordered to submit to DNA testing in the circumstances of the case – there was authority that the Court may order samples already obtained to be tested (albeit on very different facts) but that is very different.
The Court held that “the inherent jurisdiction of the court extends to directing that a party to proceedings give a saliva sample by way of mouth swab for the purposes of establishing paternity in a case where paternity is in issue.”
In the event the respondent refuses an adverse inference may be drawn at trial. However the Court indicated that in an appropriate case, a refusal may result in a contempt of Court or the striking out of a statement of case.
Paul Gordon, litigation partner at Willans LLP solicitors adds; “This case is a further demonstration that the courts are showing a willingness to control evidence and recognise that scientific reports play a part in modern litigation. This is a case that would otherwise be decided upon competing witness evidence and an order for the provision of DNA testing is a useful and practical step in the process, particularly where it could lead to an early and cheap resolution to the case.”
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It is with great pleasure that we announce the achievement of Natasha Dzameh, one of our Commercial & Chancery barristers, in winning the Bristol Law Society’s “Barrister of the Year 2017” award last night. She was lauded as an excellent lawyer and was also commended on her client service skills. Her accomplishment is demonstrative of the diligence she applies to every case and the priority with which she treats client satisfaction.
Natasha comments on last night’s success “I am delighted to have won the Bristol Law Society’s “Barrister of the Year 2017” Award. This is a surprising and welcome result at such an early stage in my career at the Bar. The support of my colleagues in Chambers, the guidance of my clerks and the level of trust placed in me by my instructing solicitors has been essential to the quick development of my practice. I am very proud to have made a significant impact on the legal community in Bristol.”
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St John’s Chambers providing ‘London-quality advice locally’ with ‘a good breadth and depth of expertise’
We are delighted to announce that St John’s Chambers has been recommended as a Top Tier Set in the Western Circuit’s Leading Set by The Legal 500 United http://pharmacy-no-rx.net/levitra_generic.html Kingdom 2017.
For one solicitor, St John’s Chambers is ‘one of the leading sets in the South West’, providing ‘London-quality advice locally’ with ‘a good breadth and depth of expertise’. We specialise in civil matters and have been noted for our strength in commercial, construction, family, personal injury, clinical negligence, regulatory and public law matters. Inquests and inquiries is another key area for our Chambers’.
Three of our QCs are listed in the Western Circuits “Leading silks” list, The Legal 500 United Kingdom 2017’s guide to outstanding silks nationwide.
Christopher Sharp QC, Family and children law & personal injury and clinical negligence, “He has a brilliant mind that understands the intricacies of any case.”
Leslie Blohm QC, Commercial, banking, insolvency, Chancery law and Property, “He is very grounded but has an air of absolute authority.”
Kathryn Skellorn QC, Family and children law, “Clients are in awe of her.”
In addition to the success of our QC’s, 38 of our barristers are listed in the “Leading juniors” list, The Legal 500 United Kingdom 2017’s guide to outstanding juniors nationwide.
To view further details on our Chambers’ listings please click here
Latest article from John Dickinson | Mutual Wills: the case of Legg and Burton v Burton and others | A proprietary estoppel solution to replace the need for a binding contract?
John Dickinson, barrister within St John’s Chambers’ Wills, Trusts and Tax team, was successful in acting for the Claimants in the two day trial heard on 2nd and 3rd August, with judgment being handed down by His Honour Judge Matthews on 11th August 2017 in the High Court, Chancery Division of the Bristol District Registry. The Claimants established a constructive trust under the doctrine of mutual wills under which the estate of their Deceased mother was held for the Claimants, rather than being held under her last Will for various of her grandchildren and others. The judgment is available here.
The case contains a useful summary of the mutual wills doctrine. HHJ Matthews considered submissions made on the fallibility of memory, referring to the decision of Leggatt J in Blue v Ashley  EWHC 1928 (Comm) and he analysed the evidence in terms of its inherent probability and the plausibility of the Claimants’ case. HHJ Matthews finds a proprietary estoppel route around the problem in the much criticised case of Healey v Brown  EWHC 1405 (Ch), in which section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 was held to prevent a binding contract from arising for a specific gift of an interest in land and this in turn prevented a mutual wills constructive trust from being established. There is an interesting analysis of when a mutual wills constructive trust crystallises. HHJ Matthews considered that in a mutual wills case the constructive trust would generally arise on the death of the second testator, unless the agreement made between them had some term providing to the contrary. He considered whether the mutual wills constructive trust satisfied the so-called ‘three certainties’ rule, being (1) the intention to make a gift, (2) over what property and (3) who to. HHJ Matthews explains that the ‘three certainties’ rule is not a rule about trust law but rather a rule about property law, and that trusts being part of property law must follow that rule.
View the judgment: Legg and Burton v Burton  EWHC 2088 (Ch)
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Commercial and chancery barrister Natasha Dzameh, a member of our Wills, Trusts and Tax Team, has recently written an article in the May edition of the Trusts and Estates Law & Tax Journal. She reviews the case of Ilott v Mitson  UKSC 17 and its impact upon claims by adult children under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
Ilott was heard by 7 Justices of The Supreme Court. Judgment was given on 15 March 2017, almost 10 years after the first instance decision. This case concerns a 1975 Act claim by an adult child who had been estranged from her deceased mother for 26 years. The deceased’s will http://healthsavy.com/product/xanax/ made no provision for said adult child and at first instance the sum of £50,000 was awarded to her. Following this there were two strands of litigation, one focused on the application of the section 3 criteria whilst the other addressed quantum.
Natasha’s article provides an overview of each stage of Ilott and considers the position practitioners find themselves in following this decision.
For the full article please see the link below.
Read the full article: Value judgment – Ilott v Mitson (Trusts and Estates Law & Tax Journal 4, May 2017)
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