Ashfords' Disputed Wills and Trusts Bulletin - September 2022

Welcome to Ashfords' Disputed Wills and Trusts Bulletin.  

We aim to provide you with a roundup of the most interesting and relevant developments in the sector. We would be delighted to expand upon any area covered or if there is any particular topic you would like addressed please contact a member of the team by emailing willdisputes@ashfords.co.uk.

Charities act 2022: the effect on charity trustees' powers to make ex-gratia payments

Over the coming year, the Charities Act 2022 is set to come into force in phases, bringing in a number of welcome changes to charity law. The Act implements a large number of the recommendations made by the Law Commission in its 2017 report "Technical Issues in Charity Law". While the Act is not intended to be a major overhaul of charity law, it has the aim of reducing "unnecessary bureaucracy in current processes" . These changes include giving greater flexibility to the use of permanent endowment, adaptations to how charities sell, lease or transfer land, and changes to how charities can amend their governing documents.

Discover more about the changes and the new test here.

Unanticipated changes in the value of a gift does not invalidate the gift or will

Skillett v Skillett [2022] EWHC 233 (Ch)

In this case, the High Court confirmed that an unexpected change in the value of a testamentary gift between the execution of the will and testator’s death could not invalidate the gift or will, as it did not undermine the testator’s knowledge and approval.

Read more about the judgment and what can be learnt here.

When can executors charge for their time?

Da Silva v Heselton [2022]

As a starting point, all executors and trustees are entitled to be reimbursed from the estate for their out-of-pocket expenses.

Professional executors, and by that we mean someone who specialises in estate administration (such as a solicitor or accountant) can charge for their time spent administering the estate.

Read more about the judgment and what can be learnt here.

Testamentary Capacity & “The Golden Rule” Case Law Update

Boast v Ballardi & Ors [2022]

In the recent case of Boast v Ballardi & Ors [2022] EWHC 1533 (Ch), the High Court upheld a challenge to the validity of a professionally prepared will on the grounds that the testator did not have testamentary capacity.

The court strongly criticised the will drafting solicitors, who, despite having concerns regarding the testator’s capacity, failed to properly investigate the situation. The Judge noted the will drafter did not take any steps to check whether the deceased understood the extent of his property, and despite being aware of the deceased’s paranoid delusions, did not investigate whether those delusions were capable of affecting his testamentary decisions, either by asking further questions or by instructing a qualified medical practitioner to assess this.

Read our analysis of the judgment here.

For more information on these articles, please contact our Disputed Wills & Trusts team.