UK: Contentious Trusts And Estates

Last Updated: 1 July 2011

Bircham Dyson Bell LLP, like everyone involved in the trusts world, is seeing not only an increase in litigious disputes relating to trusts and estates, but also many matters that are showing clear signs of contention and the question is whether a satisfactory settlement will be possible. As a result, Helen Ratcliffe, Head of Private Wealth, and Richard Langley, Head of Litigation, are delighted to welcome Nicholas Holland to Bircham Dyson Bell as the new Head of Contentious Trusts and Estates. Nick's heavyweight experience in this field will draw additional strength from the knowledge and expertise of the existing Contentious Trusts and Estates Team, which crosses the boundaries of the Private Wealth and Litigation Groups.

Why are contentious trusts and estates so important now?

Cases soar

When their expectations are disappointed people turn increasingly to litigation, and the fallout of the economic crisis in 2008 means that there are currently many disappointed people. Figures from the Ministry of Justice show that the number of claims in the High Court involving trusts jumped nearly 240% between just 2008 and 2009.

It would not be surprising if that trend is maintained, or even accelerated - and of course the cases that have actually reached court are only a fraction of those where a dispute has arisen and the threat of litigation is seen as a lever to achieve a good outcome.

The statistics in the High Court are matched by a seemingly inexorable rise in litigation in the offshore jurisdictions. This will often involve London advisers for some angle of the problem.

The demise of the Hastings–Bass principle?

The Hastings–Bass principle has led to much litigious activity in recent years, both offshore and onshore, as trustees in particular have sought the court's blessing to avoid the consequences of actions that had turned out to be unfortunate. The Court of Appeal in London has recently handed down a robust judgment saying that the law had "taken a wrong turn" by developing the so-called principle in Hastings-Bass, and that relief will no longer be available on this basis.

If that judgment stands (it is not yet certain whether there will be an appeal to the Supreme Court) then the scope for a relatively consensual resolution of difficulties will be greatly reduced, and an increase in hostile litigation against advisers can be expected. The decision will also, if it stands, leave the UK strangely out of kilter with the offshore jurisdictions where the principle has been flourishing and would have been expected to be followed. London SW1H 0BL

Meet the Team

Our Contentious Trusts and Estates Team comprises nine partners and seven assistants who share a niche specialism that draws on both our Private Wealth and Litigation Groups. Our Private Wealth Group is noted for its exceptional expertise in international as well as UK situations, and Nick's wide experience of multijurisdictional trust-related disputes complements this.

A few pointers about some of the key members of the Contentious Trusts and Estates Team:

Nicholas Holland, Head of Contentious Trusts and Estates

Nick's practice is a double specialism: contentious trusts and estates on the one hand, and commercial litigation on the other, deriving strength and breadth from the fact that he works at the nexus of private wealth, litigation and commercial law. At various times he has represented each of trustees, settlors, beneficiaries and protectors, generally in a cross-border context. In particular, he has represented institutional trustees and private clients in connection with all manner of disputes arising from the creation, administration and winding up of trusts or estates, ranging from investigations by the Serious Fraud Office and regulatory bodies through to disputes about the beneficiaries' respective entitlements. He is a member of ACTAPS (The Association of Contentious Trusts and Probate Specialists).

Some examples:

While working as lead counsel in the Cayman Islands Nick defended the institutional trustee of a commercial trust in a nine figure dispute over the net asset value of a hedge fund. He advised another institutional trustee, and instructed legal teams in the UK, USA, Switzerland and the Cayman Islands, in connection with the trustee's response to investigations led by the Serious Fraud Office and Securities and Exchange Commission as well ancillary investigations by the Swiss Federal Prosecutor. He advised an institutional trustee in connection with a nine figure potential fraud on the power. In another commercial trust he advised the institutional protector on its obligations to respond to various allegations that the trustee and others were in a conflict of interest.

Simon Weil, Partner

Simon has been a Partner in the firm for 28 years. A member of ACTAPS and previously Head of our Contentious Trusts and Estates Team, Simon was instrumental in recruiting Nick as its new head.

Simon looks, in the context of disputes, for fiscal planning designed to prevail upon the parties to draw back from confrontation in court, if at all possible. Where litigation is appropriate, he works as a team with his colleagues to devise creative, practical and cost-effective solutions to what are often intractable problems. This is particularly appropriate when there are complex family and financial arrangements that need to be unravelled in a sensitive manner.

Some examples:

A particularly interesting case involved acting for the two minor beneficiaries of a Cayman Islands trust worth in excess of Ł100m in a dispute that had arisen between the trustee and the clients' father. He, although excluded from benefit under the terms of the trust, claimed that he was entitled to receive $1 million per annum from the trust for life. As a result of a robust stance, designed to achieve a settlement which would both minimize the loss to the trust fund and avoid a contentious court hearing, but which always included the option of going through with a trial, the dispute was finally resolved, over three years after it had begun. Claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 comprise an expanding element of the many cases in which Simon becomes involved.

Helen Ratcliffe, Head of Private Wealth

Helen heads one of the largest Private Wealth departments in London, with 13 partners and 23 other fee earners. She has a very busy practice advising both trustees and beneficiaries of onshore and offshore trusts about UK tax and trust issues. Increasingly, she is involved in trying to prevent disputes escalating into hostile litigation.

Some examples:

Helen has recently been advising offshore trustees on a restructuring for which it was eventually necessary to seek the directions of the court in conjunction with the local legal team. She has also recently advised another set of offshore trustees on the resolution of issues created by pre-existing imperfect documentation, working in conjunction with local advisers and English Counsel to find a court-blessed solution. Another current matter involves advising the executor and trustee of an onshore Will on a dispute which has arisen with their co-executor and trustee.

John Darnton, Partner

John's practice is principally based in England but many of his cases have an international flavour. He advises in connection with a wide range of disputes from those relating to the validity of Wills and challenges to trustees' decisions, to claims for financial provision following death. He also advises trustees in connection with matrimonial disputes including the taking of protective action. He is an advocate of alternative dispute resolution methods where appropriate, and a trained collaborative lawyer. He has been involved in a number of successful mediations which have avoided expensive trials.

Some examples:

John recently acted for the beneficiary of various family trusts seeking information from an unsatisfactory trustee based in the Isle of Man, and ultimately compelled a change of trustee. He has also been acting with Simon Weil in connection with a substantial claim for financial provision in respect of a multi-million pound estate that has been in the deceased's family since the 1400's. He has recently settled a probate dispute involving a testator who left estates both in this country and in Bosnia, and is presently advising in a case involving substantial sums held in Switzerland where the key issue is whether the deceased died domiciled in England or Persia. John acted in the important mistake case of Wolff v Wolff.

Richard Langley, Head of Litigation & Dispute Resolution

Richard is head of our Litigation and Dispute Resolution department consisting of 8 partners and 18 other lawyers. His wide-ranging disputes resolution practice includes complex negligence claims, including those relating to offshore matters.

Some examples:

Richard has acted for clients who came to him in relation to losses made as a result of the earlier unsuccessful implementation of tax avoidance structures. He is currently acting for a client pursuing a secret trust claim over assets alleged to be hidden in Swiss bank accounts and in the British Virgin Islands.

Elizabeth Neale, Partner

Liz joined Bircham Dyson Bell in 1998, becoming a partner in 2008. She has a broad private client practice advising both UK and international clients. Inheritance tax is a specialism, and her particular interests include international succession and estate administration, including estates with a multi-jurisdictional dimension.

Some examples:

Liz's contentious experience includes a leading case on domicile - Morgan v Cilento, where she acted in tandem with litigator John Darnton. She is currently advising on the inheritance tax issues arising in a complex international trust dispute where key uncertainties include the identity, tax status, and even the number of the settlor(s). Closer to home she also advises charities as both administrators and beneficiaries of estates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.