UK: Will And Estate Disputes Update - December 2018

Last Updated: 15 January 2019
Article by Lucinda Brown, Tiffany Benson and Kate Harris

In this issue:

  • Section 57(1) of the Trustee Act 1925 – an alternative to VTA applications?
  • What does it take to prove undue influence?
  • Reform of the Deprivation of Liberty Safeguards - Bill Update
  • Cohabitee 1975 Act Claims: Life interest or Lump sum payment?
  • Sole beneficiary loses appeal against claim for financial provision by adult children

The Court grants permission under Section 57(1) of the Trustee Act 1925

In the case of South Downs Trustees Limited –v- GH, the High Court has recently considered an application under section 57(1) of the Trustee Act 1925. This section allows a trustee to apply to Court for permission to carry out a sale, disposition or other transaction in connection with a trust which they would otherwise be unable to perform, either because of a law in force, or because of the absence of a power to do so in the trust instrument itself. The purpose of section 57(1) is to allow the Court to authorise specific dealings with trust property to ensure that it is managed in the best way possible and in the interests of the beneficiaries but, crucially, not to rewrite the trust. Section 57 applications are not common, but this case highlights their usefulness.

In this case, the Court was asked to determine whether a trustee could sell the trust's entire interest in a holding company, thereby bringing the trust to an end. The object of the trust was to facilitate the holding of shares by the beneficiaries, or for their benefit. The relevant clauses of the trust instrument gave the trustee the power to apply income and capital of the trust for the benefit of the beneficiaries but restricted his power to dispose of the trust's Lucinda Brown Partner Tiffany Wiggett Associate beneficial interest in any shares if that resulted in a loss of control of the holding company.

The Court considered the elements of the section 57(1) test in turn. Firstly, it was clear that the fist condition was satisfied, as the trustee had no express power to carry out the proposed transaction. The Court then had to determine whether it was expedient for the trustee to dispose of the shares. In doing so, the Master weighed the overall financial advantages and disadvantages of the proposed sale and concluded that there were significant benefits from the sale which were far greater than any possible risk or other consideration. Lastly, the Court had to consider the exercise of its discretion in order to confer the additional power on the trustee. This decision was a 'momentous' one given that it would result in the trust being wound up and represented a significant change in approach to the original purpose of the trust. However, the Court's view was that the trustee was right to adopt a different approach in light of what was expected to be a less beneficial financial era on the horizon. The trustee's decision to sell the shareholdings was not an unreasonable one and there were no conflicts of interest to be concerned with.

This case should be of interest to trustees faced with decisions which would go beyond the scope of their powers under the trust instrument. Section 57 applications might be considered as an alternative to Variation of Trusts Act applications in the appropriate circumstances.

False promises can be sufficient to establish undue influence

It is widely acknowledged that the burden of establishing testamentary undue influence is one which is hard to overcome. However, a recent case in the Alberta Court of Queen's Bench has offered some useful insight into the type of evidence which the Court may take into account when considering whether a Will is the true expression of the testator's wishes, or a product of another person's wishes.

In brief, the case of Kozak Estate (Re) involved an elderly testator, Ted, who, at the age of 72, had been a bachelor all his life and still lived on the farm where he was born. In 2011, Ted met Maryann Seefoot, a 56 year old woman, with adult children from prior relationships. Within two months of meeting Maryann, Ted Kozak sold his childhood home and moved in with her in a town closer to her social circle. Maryann promised to marry Ted, however the Judge noted there was little evidence of any loving relationship.

Ted had made an earlier Will in 2009 leaving his estate to his sister. However, in 2011 and 2012 he made two subsequent Wills naming Maryann as his sole beneficiary. The second Will was expressed to be in contemplation of his marriage to Maryann, although this union never took place. In 2013, Ted's health deteriorated and he was admitted to residential care. Over the next year or so, Maryann drained his bank accounts and yet failed to visit him or to provide him with any care or support. Ted died in 2014 and his sister, Yvonne, challenged the validity of the last two Wills on the ground of undue influence.

The Court upheld Yvonne's claim and declared that Ted's last two Wills were "not Ted's will but Maryann's, her desire to acquire his assets and spend his money", the result of Maryann's influence over him. Although much of the evidence in this case was circumstantial, the Court held that there were clear indications that Ted had been manipulated by Maryann's false promises of marriage and companionship. In particular, the Court pointed to some key circumstances which were relevant in establishing undue influence in this case. These were the increasing isolation of Ted and his resulting dependence on Maryann, the substantial pre-death transfer of wealth to Maryann alongside Ted's apparently unfounded concerns that he was running out of money, Ted's inability to explain why he was leaving his entire estate to Maryann to the exclusion of his own family and, finally, documented statements that Ted was afraid of Maryann.

This case is of interest since, although from a different jurisdiction, it suggests we might see a developing line of case law on undue influence. Whereas we would usually advise it is necessary to prove fraud or coercion on the part of the influencer over the testator in order to establish undue influence, it seems that controlling or manipulating a testator's judgment through false promises may also be sufficient. It also shows that circumstantial evidence can play a crucial role in establishing an undue influence claim.

Reform of the Deprivation of Liberty Safeguards - Bill Update

In July 2018 the Government published the Mental Capacity (Amendment) Bill, which will reform the existing Deprivation of Liberty Safeguards (DoLS). The new scheme will be known as the Liberty Protection Safeguards (LPS).

Earlier this October, the Bill reached the Committee stage, where the Government confirmed that the LPS will cover situations where deprivation of liberty is justified on the basis of risk of harm to others. There have been no amendments made to the proposed Bill, however the government announced an intention to bring forward amendments to:

  1. Extend the scope of the Bill from 18, to include 16 and 17 year olds;
  2. Confirm the need to consult the cared-for person, to understand what the person's wishes and feeling are about the arrangements;
  3. Introduce a statutory definition of Deprivation of Liberty, which replaces the acid test set out in the Cheshire West and Surrey Supreme Court judgement;
  4. Replace the term "unsound mind".

In addition, care home managers will be excluded from undertaking pre-authorisation reviews. Further, cases involving acquired brain injury, harm to others and those in receipt of mental health treatment in a private hospital, will be referred to an Approved Mental Capacity Professional (AMCP). The Bill will also broaden the scope to treat people, in a medical emergency, without prior consent.

It remains unclear when the Bill will become law and subsequently implemented. The Hewitsons team will continue to post relevant updates as the Bill progresses.

Cohabitee 1975 Act Claims: Life interest or Lump sum payment?

The case heard earlier this year of Banfield v Campbell, involved a cohabitee claim under the Inheritance (Provision for Family & Dependants Act) 1975 ("the 1975 Act"), for reasonable financial provision following the death of a partner. As is often the case where relations between the parties have broken down, the dispute centred on what sum of money should be awarded to the surviving cohabitee from the Estate, in order for the surviving partner to be suitably rehoused and a clean break achieved between the parties.

Sarah Campbell died in October 2015. Sarah had a son, James and inherited the family home in Thames Ditton, on her husband's death in 1992. In 1993 she began a relationship with Mr Banfield. Originally he lived with his mother but eventually moved in with Sarah from 2001. Mr Banfield was still living with Sarah when she died 14 years later.

Sarah's estate was worth in the region of £753,000; the bulk of which consisted of the property. Under her last Will made in 2001, she left a gift of £5,000 to Mr Banfield, described as her "friend" and the remainder of her estate to James. Mr Banfield was 63 by the date of Sarah's death and partly disabled. The home they shared to be inherited by James was likely to be sold, leaving Mr Banfield homeless. He duly made a claim for reasonable provision from Sarah's estate under the 1975 Act.

Mr Banfield had a net annual income of £30,000. He had also inherited from his late mother and had investments of £277,000. Mr Banfield claimed a housing need for a ground floor maisonette with garden in Thames Ditton, in the region of £450,000; effectively more than 50% of Sarah's estate. James claimed that this was excessive and that only £220,000 was needed to buy a 1 bedroom apartment.

Master Teverson, followed Lord Hughes' judgment in the widely publicised Supreme Court decision last year of Ilott v Mitson, rejected both arguments. There were two special circumstances of the present case. Firstly, Sarah had inherited the property from her late husband and secondly, Mr Banfield's housing needs required sums equating to more than 50% of the estate. Master Teverson said that the purpose of the 1975 Act is to provide maintenance, not to confer capital on the Claimant. He therefore ordered that the property be sold and half of its net sale proceeds held on a life interest trust for Mr Banfield, to be used to provide alternative accommodation, the capital of which would then pass to James on Mr Banfield's death. In addition he ordered that £20,000 be kept available in the Estate should Mr Banfield require any adaptations to the subsequent property purchased for him.

This case highlights that the Courts are more likely to consider a life interest trust, where there are children from a previous relationship to whom the Deceased wished to pass capital, despite the parties preferring a clean break arrangement. Master Teverson held that "[t]he fact that relations between the parties have broken down as a result of this litigation does not persuade me that it is right to make provision in the form of a lump sum".

The Hewitsons team have a wealth of experience both bringing and defending 1975 Act claims. Please contact a member of the team for advice.

Case Citation: Banfield v Campbell [2018] EWHC 1943 (Ch)

Sole beneficiary loses appeal against claim for financial provision by adult children

Mr Lomax executed a Will in 1997 leaving his whole estate to Ms Greenslade, also named as the executor in his Will. On his death, his three children claimed under the Inheritance (Provision for Family and Dependants) Act 1975 ("1975 Act"), that his Will failed to make reasonable financial provision for them.

At first instance, Ms Greenslade failed to attend court; she had applied for an adjournment of trial but this was refused. The judge found that Mr Lomax's estate was worth £699,000 and therefore concluded that the sum of £69,000 only should be given to Ms Greenslade, with the rest of the estate to be divided equally between Mr Lomax's children.

Ms Greenslade appealed the decision and argued that in awarding the same amount to all three children, the judge had failed to consider each child's financial circumstance. Further, she sought to set aside judgement on the basis that the trial should not have taken place.

The High Court refused to set aside the judge's decision at first instance because Ms Greenslade had failed to satisfy the criteria set out in Civil Procedure Rule 39.3. The court held the following:

  1. Applications to set aside judgement must be made promptly. Ms Greenslade received the transcript of the judgement in early March 2018 and yet failed to make the application at that time.
  2. Ms Greenslade had a good reason for not attending trial; she had provided medical evidence of her mental illness. However, she had failed on the first criteria referred to above.
  3. Whether Ms Greenslade would have a reasonable prospect of success at trial was answered by the fact that the High Court found that the judge correctly considered each child's financial circumstances and rightly concluded for an equal distribution.

Further, bearing in mind the size of the estate, it was not sensible for the case to be reheard at county court. The court accepted a new probate valuation which evidenced that the total estate had reduced to £636,000 but nevertheless concluded that the same award be made to Ms Greenslade. Therefore, Ms Greenslade is to receive £69,000 of Mr Lomax's estate of £636,000, with the rest of his estate being shared equally amongst his three children.

This case highlights the importance of the 1975 Act, where the Deceased fails to make reasonable financial provision for a family member. Further, the High Court judgment represents a harsh reminder that an application to set aside judgment must be made promptly.

Case Citation: Lomax v Greenslade [2018] EWHC 2623 Ch

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

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

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions