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Ashfords' Disputed Wills and Trusts Bulletin - September 2018

Proprietary Estoppel - The latest farming case

The case of Gee -v- Gee decided on 11 June 2018 is the latest in a line of Proprietary Estoppel cases involving farming families. 

Background 

The Claimant, John Michael Gee (called Michael here for simplicity), was the son of Pamela and John Richard Gee (called Richard here for simplicity). The family ran a farming business in Oxfordshire.  The business was run through a family owned limited company, in relation to which Richard owned the entire shareholding except for one share which Pamela owned.  

Michael worked on his parents' farm from the 1970's until 2016, working long hours for low pay. Michael and his father did not have an easy relationship, but they worked together all the same.  

In 2014 Richard and Michael had a major falling out and Richard transferred all of his property, including his shareholding in the family company, to his other son Robert.  At the same time Pamela transferred her interest in the freehold land to Michael, together with her single share in the company.  From that time onwards Robert, who had until then been in property development, managed the farm.  

Michael brought a claim for the interests allegedly promised to him on the basis of a "proprietary estoppel". 

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Tish & Ors v Olley & Ors [2018] EWHC 1069 (Ch) - Court interprets ambiguous will clause 

In the case of Tish & Ors v Olley & Ors [2018] EWHC 1069 (Ch) the claimants brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Although a 1975 Act claim, it helpfully sets out the current judicial approach of tackling ambiguous clauses and how they go about interpreting the testator's intentions. This is because the 1975 claim was dependent upon the interpretation of an ambiguous clause in the will which, depending on how it was interpreted, potentially benefited the claimants. If the clause benefitted the claimants, their claim would fall away.  If it did not, the Court would have to consider whether it was necessary or appropriate to make any order for the claimants under the 1975 Act. 

The interpretation of this clause therefore came before the court as a preliminary issue.  

The facts 

Raymond Tish died in 2014 after becoming seriously ill with Motor Neurone disease.  Mr Tish was a moderately wealthy man.  Following his divorce to his third wife Amanda in 2007, he was ordered by the court to pay annual maintenance payments of £18,000 to Amanda and £11,000 a year to their two children, Revan and Arabella, until they attained they age of 18 or completed tertiary education.  Additionally he was also ordered to pay all private school fees and to uphold his life insurance policy  payments naming the children as beneficiaries. 

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Increasing concerns over abuse of LPAs

According to figures from the Office of the Public Guardian (OPG) 1,729 investigations into the actions of attorneys and deputies were carried out in the 2017/2018 financial year – up from 1,199 the previous year. This represents a staggering 44% increase in investigations.  

The majority are investigations into those who have received authority when a person still has mental capacity (i.e. attorneys appointed by LPAs or EPAs). The organisation Solicitors for the Elderly have said that they have noted a rise in DIY and online submissions for LPAs.  This could provide an explanation for the increase in investigations, particularly given that many cases involve attorneys who have innocently stepped beyond the boundaries of their responsibilities.  People agreeing to take on the role as attorney must ensure they are fully aware of their duties and the restrictions on their authority.  

Jointly-owned property on death

A recent case illustrates how getting your property affairs in order if your circumstances change is crucial. Rebecca Milton explains.

The Court of Appeal case of Wall v Munday [2018] highlights the need for co-owners to ensure that their interests in jointly-owned property are dealt with sooner rather than later, or they risk facing what may seem like an unfair division of the asset.

Bryan Wall and Christine Munday married in 1969 and bought 7 Wellsmoor Gardens as joint tenants. 

There are two ways in which you can jointly own a property: as joint tenants, or as tenants in common.

As joint tenants, each person owns the whole of the property with the other. If one co-owner dies, their interest in the property automatically passes to the surviving co-owner(s), whether or not they have a will.

As tenants in common, co-owners own specific shares of the property. Each owner can leave their share of the property to whoever they choose. When they die, their share in the property will pass in accordance with their will, or if they have no will, in accordance with the intestacy rules.

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This article was originally featured in the Gazette.

New report warns of looming incapacity crisis

A new report from SFE (Solicitors for the Elderly) and independent think tank, Centre for Future Studies, reveals the UK is leaving medical and care preferences to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis.

The study found 96% of people in the South West have not made necessary provisions, should they lose capacity from conditions like dementia. A further 39% admit to having made no provisions at all for later life, including a will, pension, funeral plan or LPA.

In response, a coalition of organisations, led by SFE - the specialist organisation that connects older and vulnerable clients with legal experts in older client law - are joining forces to encourage people to tackle the taboos around end of life planning, in order to prevent an incapacity crisis.

The research found that 70% of people in the South West are worried about dementia and losing the ability to make decisions for themselves, but 83% have not spoken about, or even considered, personal medical and care end of life decisions.

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Court favours Cohabitee with an award of capital rather than life interest in the matrimonial property - THOMPSON V RAGGET & ORS [2018] EWCH 688 (CH)

The claimant, Joan Thomson, was an elderly lady who had no property, only £2,500 in savings and was entirely reliant on disability benefits by way of income.  Joan's partner of around 42 years, Wynford Hodge, did not make any provision for her in his will on the basis that she had her own money and her own savings, but mainly, it would seem, because he did not want Joan's children (with whom he had had disagreements) to receive any benefit from his estate, whether directly or indirectly.  His net estate was in the region of £1,500,000. 

As a cohabitee and as a dependant of the Deceased, Joan was entitled to bring a claim for such provision as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance (section 1(1)(ba) and section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975). 

It was sensibly accepted between the parties that the Deceased had not made reasonable financial provision for the Claimant and the Court agreed: the fact that the Deceased did not want his assets to fall into the hands of C's children was not sufficient reason for having left C without financial provision. 

The issue that remained, however, was how much Joan should be awarded from the estate.  Joan asked the Court to transfer the matrimonial property to her (as opposed to her being given either a life interest in the property or access to an alternative property), with an additional lump sum to enable her to modify the property to meet her needs, annual costs of maintaining the cottage, general outgoings and the costs of a suitable care package. 

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Life interest rather than capital awarded to cohabitant claimant in necessitous circumstances under the Inheritance Act 1975

In the recent High Court case of Banfield v Campbell [2018], a claim was brought under the Inheritance (Provision for Family Dependants) Act 1975 by the Deceased's cohabitee, Mr Banfield.  Mr Banfield who had lived with the Deceased in her home for many years, was set to inherit just £5,000 of her £750,000 estate. 

Being partly disabled and having no home of his own, Mr Banfield argued that he was not sufficiently provided for in his deceased's partner's will, and needed money to purchase alternative accommodation to meet his specific mobility needs. 

Notwithstanding the claimant's necessitous circumstances, the Court refused to make an outright capital award as sought and instead awarded the Claimant a life interest in half the net proceeds of the sale of the Deceased's house.

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OXFAM's legacy windfall: the legal implications

Gifts in Wills are a vital source of income for many charitable organisations. Many rely on this income to sustain provision of their services for often the most vulnerable in our society.

According to 'Legacy Trends 2018' published by Smee & Ford, charity legacy income reached a record high of £2.8bn in 2017, up by £37.8m on the previous year. That said, only 6.1% of the population leave a charitable gift in their Will. This provides a great opportunity for charities and Smee & Ford estimates that if just 1% of the non-charitable estates in 2017 included a charitable gift in their Will, it would have raised an additional £97m for charities.

The recent death of Richard Cousins, a 58-year-old widower who perished in a tragic sea plane accident on New Year's Eve in 2017 along with his two sons, his fiancé and her young daughter, has brought legacy giving to the forefront of media and public attention.

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