Contentious Wills & Probate Part III
Legal update written by Anna Metcalfe.
RELIEF FROM FORFEITURE
Last year there were two reported decisions in respect of the forfeiture rule. These are worth mention given the rarity of reported cases in this area.
The rule of forfeiture means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing. The Forfeiture Act 1982 allows the court to modify or exclude the application of this rule where it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires it.
In Amos v Mancini and others [2020] EWHC 1063 (Ch) (30th April 2020) a 74 year old woman was driving when a car crash killed her husband. She had momentarily lost concentration on a long journey after many hours of driving, at night and in the rain which lead to a four car smash. She pleaded guilty at the first available opportunity to death by careless driving. She was given a suspended sentence and a driving disqualification. Mrs Amos was the sole beneficiary of Mr Amos’ estate under his will and also entitled to their marital home by the right of survivorship. Two defendants did not defend the claim, and the third did initially contest the claim, but failed to take any active role or file proper evidence.
Counsel for the Claimant first submitted that the forfeiture rule should not apply because not every circumstance of unlawful killing attracts the rule, and death by careless driving should not do so. Despite some legal commentary suggesting that this submission was valid, HHJ Jarman did not consider there to be a logical distinction between death by careless driving and other cases of manslaughter (including those which involve little more than inadvertence). Instead, the Claimant needed to rely on the application of the Act to avoid the forfeiture rule.
HHJ Jarman allowed full relief on the basis of Mrs Amos’ early guilty plea, the level of her culpability, the lack of defence and her long and happy marriage to which both parties contributed financially. Allowing the forfeiture rule to apply would be out of proportion to her culpability in the offence.
In Challen v Challen [2020] EWHC 1330 (Ch) (27 May 2020)the claimant and her late husband had been in a relationship for 40 years and were married. The defendants were their children. During the marriage, the husband had been repeatedly unfaithful and had visited prostitutes. His behaviour towards the claimant had been belittling, aggressive and violent. The claimant initiated divorce proceedings and moved out of the house, but agreed to try a reconciliation. They began meeting for lunch every week at the matrimonial home. The claimant discontinued the divorce proceedings, but the husband insisted that she sign a post-nuptial agreement stating that she would hand over the house to him if they divorced. The claimant went to the matrimonial home and discovered that he was continuing to be unfaithful. She prepared him a meal, and while he was eating it she struck him on the head with a hammer and killed him. In June 2011, she was convicted of murder after pleading not guilty. The conviction was quashed in February 2019 and a retrial was ordered. On 5 April 2019, the claimant pleaded tendered a plea of guilty to manslaughter by reason of diminished responsibility which was accepted. She was sentenced to 9 years but was immediately released on the basis of time already served. A claim for relief from forfeiture was issued on 6th September 2019.
The case is particularly useful as the judgment discusses in detail the application of the 3 month limitation period to various different scenarios. According to s.2(3)of the Forfeiture Act, an application must be brought within three months of the date of ‘conviction’. If “conviction” referred to the time when the guilty plea to manslaughter was publicly accepted by the prosecution, then the claim was in time. If it referred to the time when Mrs Challen first pleaded guilty to manslaughter, or to when the Crown indicated its willingness to accept that plea, then the claim was out of time. HHJ Matthews considered the former to apply. In this case acceptance of the plea and sentence was on the same day. However HHJ Matthews helpfully considered the scenario where sentence was later than formal acceptance of a plea. He considered a defendant’s position only definitive at the point of sentence, as a plea can be changed at any time up until that point with the judicial consent. He felt that it is at the point of sentencing that time begins to run.
HHJ Matthews also made the observation that Mrs Challen’s original murder conviction could not be a ‘conviction’ within the meaning of s.2(3) because the Act has no application to a conviction for murder (s.5). In any event, because the murder conviction was quashed, Mrs Challen no longer “stood convicted” of murder. Where there is an initial conviction followed by an appeal, and then a subsequent conviction, he considered it to be the subsequent conviction which is the relevant one for the purposes of section 2(3) of the Act.
As to whether relief would be granted, HHJ Matthews considered the length of the relationship, the extent of the coercive control and the lack of defence to the claim for relief to weigh in favour of awarding it. He did however, make the following observation:
“Overall, I am quite satisfied that the justice of this case requires that I should disapply the forfeiture rule to the facts of this case, taken as a whole. Of course, this does not mean that any person suffering from the effects of coercive control should expect without more to have the forfeiture rule disapplied in case she or he should kill the person exercising such control. Every case must be decided on its own merits. I emphasise that the facts of this terrible case are so extraordinary, with such a fatal combination of conditions and events, that I would not expect them easily to be replicated in any other.”
CONSTRUCTION AND RECTIFICATION
Jefferys v Scruton[2020] EWHC 536 (Ch) was an unusual case on its facts, but worth considering. LJ executed a will in 2009, leaving her residuary estate to a trust in favour of her son T, who was severely disabled. She had no other issue. T died at the age of 12 in 2014, and after a further 15 months, LJ also died, without altering her will.
Although the will made provision for the eventuality that T predeceased his mother, a dispute then arose over its interpretation. The key clause 5(c)(iii) stated ‘if at any time the trusts declared by the foregoing provisions of this Will in respect of [T’s] trust fund fail then from the date of their failure my trustees shall hold the trust fund ON TRUST absolutely for such of the issue of my brothers and sisters living on that date or born afterwards.’
LJ’s nephews and nieces accordingly claimed that her residuary estate was held on trust for them because the first trust had failed for lack of a beneficiary.
However, T’s trust included a power for the trustees to add beneficiaries. The trustees said that this could be done after T’s death, and clause 5(c)(iii) was never activated as the first trust had not failed. Halliwell HHJ determined that the language in the will had ‘a clear and coherent meaning’ with no ambiguity. He said, ‘It is not possible to construe the will so as to resurrect or otherwise validate and apply the trustees’ power to appoint additional trustees alongside the fixed trust in Clause 5(c)(iii).’ Looking at the evidence he said there was no reason to believe that LJ had intended that the power to appoint beneficiaries would be exercisable in the event that the discretionary trust failed and clause 5(c)(iii) was brought into operation. Accordingly, he ordered that the assets were held upon trust for her nephews and nieces.
There are practical lessons to be learnt from this case for the will draftsman. In this case, the trust was drafted such that the trust for nephews and nieces only took effect where T’s trust had failed. It reminds us of the importance of making it clear exactly which events will trigger an ultimate trust (often in favour of a charity). If the clause had stated ‘subject to above’ rather than ‘if the above trusts fail’, it would be arguable that there was only a single trust and the power to add beneficiaries would still have been live.
Barrett v Hammond [2020] EWHC 3585 (Ch) was heard in November 2020. A testator in this case structured his estate by splitting it into 52 parts and distributing them amongst his beneficiaries. A codicil resulted in 8 parts being undistributed. The construction of the will and codicil resulted in a partial intestacy. A claim for rectification was brought.
It was determined that the codicil did not effect the testator’s intentions, as it was clear that their intention was that the number of parts available would match the number of gifts made so that no balance fell into partial intestacy. The judge considered rectification under s.20(1)(a) of the Administration of Justice Act 1982 and allowed the claim, substituting ‘52’ in the will, for ‘44’, so that there would be no partial intestacy.
Without going into too much detail, the judgment is interesting as a particularly wide interpretation of ‘clerical error’ was given. It was determined that the solicitor in failing to notice that the codicil did not ‘match’ the number of parts created by the will did in fact constitute a ‘clerical error’ . Judge Kramer found:
“The reconciliation of the figures did not require any particular legal expertise and does not point to a misunderstanding as to the instructions. It was just a clerical oversight, a failure to balance the figures so that at the end of the day the number of shares disposed of coincided with the total of the parts. As a result, the court does have a power to rectify under s.20(1)(a)”
Kelly v Brennan[2020] EWHC 245 Ch was another case in 2020 where rectification was successful on the basis of clerical error, but it is less noteworthy.
Knipe v The British Racing Drivers Motor Sport Charity[2020] EWHC 3295 concerned the interpretation of a will which named two charities incorrectly. In particular, it benefitted “The Cancer Research Fund”. It was considered that this was ambiguous and accordingly the judge could apply s.21 of the Administration of Justice Act 1982. It was determined the phrase was sufficient to establish a general charitable purpose and the executor could apply the legacy as he saw fit in line with this purpose. This is a reminder for will drafters of the sort of litigation that can ensue when care is not taken naming particular beneficiaries.
PROCEDURE
A case caught my eye in respect of third party disclosure – that of Gardiner v Tabet[2020] EWHC 1471 (Ch).
In this rare decision the High Court ordered the draftsman and witnesses to a home-made will to give full disclosure of their communications with the testator and the main beneficiary of the will. Practically this re statement of what is expected from parties will be very useful where a Larke v Nugus request is not appropriate because no solicitor has been involved. The decision confirms the importance of full and frank disclosure and points out that the guidance set out in Larke v Nugus is of general application and not limited to solicitors.
The application was opposed on three grounds: (1) it was premature as disclosure had not yet been ordered in the case; (2) the disclosure was not relevant because the authenticity of the testator’s signature and whether or not the Deceased had capacity were matters for expert evidence alone and (3) the disclosure may show fraud where no fraud had been pleaded. The court found nothing wrong in ordering third-party disclosure before disclosure in the main action; the tests were separate and independent. In respect of relevance, questions of forgery and capacity were decided on all the evidence, not just expert evidence, and the experts themselves needed all the evidence available to them to reach their conclusions. Finally, despite there being no specific pleading of forgery, the documents were still relevant because they went to both testamentary intention and the issue of capacity.
ACCOUNTS
More practical guidance can be found in the case of Ball v Ball [2020] EWHC 2988 (Ch.) which concerned an application against executors for an account. The executors argued that they had already provided the account requested. There were three legal points which arose:
- What does a beneficiary have to establish as the basis for the Court making an order for an account to be taken?
- To what extent does the court have a discretion to refuse an account?
- What is involved in providing an account?
It was determined that the beneficiary must show ‘that an account has not been produced or that the account is inadequate’. Inadequacy will depend on the circumstances. The court will ordinarily make an order for an account where it has not been provided. However, the court will not ‘act in vain’. If no order for monetary payment is likely to follow from an account then there is no reason why it should be ordered. This is not as restrictive as might first appear though, as the judge also stated that ‘the provision for an account itself will often provide real benefit because a beneficiary is entitled to know what the assets of the trust comprise and how they have been dealt with. The provision of information in this context does not have to be connected with a claim’.
In respect of what exactly an account comprises, the judge said ‘trustees must be ready to account to their beneficiaries for what they have done with trust assets. This may be done with formal financial statements, or with less formal documents, or indeed none at all’ and the judge quoted RNLI v Headley [2016] EWHC 1948 (Ch). There is no set form for an account and it doesn’t necessarily need to be in the form of a business type account, with balance sheets and profit and loss calculations. Rather, ‘Trust accounts, particularly where there are beneficiaries with interests which have not vested, must be able to show from period to period (the frequency of accounts is not fixed) how the trust assets have been dealt with, including what distributions and disposals have taken place. A beneficiary reading trust accounts must be in a position to assess whether the trust assets conform with the trust instrument, that the class of assets held is appropriate for the trust. The style of the accounts, and the level of detail provided will necessarily vary.’
In short the judge accepted that ‘what is required from the trustees in providing an account to the beneficiaries is:
i) They must say what the assets were;
ii) They must say what they have done with the assets;
iii) They must say what the assets now are;
iv) They must say what distributions have taken place.’
In this particular case, an account provided by the executors in a 5 page letter had already answered these questions. This had included a copy of the will, a spreadsheet setting out the income received by a beneficiary, some pages extracted from accounts and a ‘summary’ of estate assets. Making an order for an account would serve no purpose, the claim failed, and the Claimant was ordered to pay costs on the indemnity basis.
This is a cautionary tale for those who seek perfection in the provision of accounts. It should be considered carefully whether the duty has been discharged, even if no formal accounts have been provided, and the snappy checklist given in Ball is a helpful guide. Ensure that you aren’t simply litigating about the ‘quality’ of information provided rather than the substance.
