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Probate actions—table of cases

Probate actions—table of cases Testamentary capacity Topic Case name Summary Author Testamentary capacity Leonard v Leonard (by her litigation friend Sharon Thompsett) [2024] EWHC 321 (Ch) News Analysis: High Court provides guidance on the test for testamentary capacity (Leonard v Leonard)The High Court provides analysis and clarification of the test in Banks v Goodfellow and reaffirms the role of expert evidence in capacity cases. George Vare, barrister at Serle Court Chambers Testamentary capacity Wilkinson and others v Hicken [2023] EWHC 1983 (Ch) News Analysis: Personality disorders and testamentary capacity—Will declared valid by High Court (Re Wilkinson)The presumption of capacity was not rebutted as although the testator’s decision to largely disinherit his children ‘may be considered unfair’, that decision was not irrational.  Emma Fitzmaurice, senior associate solicitor at Freeths LLP Testamentary capacity Baker and another v Hewston [2023] EWHC 1145 (Ch) News Analysis: Can Banks v Goodfellow and the Mental Capacity Act 2005 be reconciled? (Baker and another v Hewston)The High Court reconciled the Mental Capacity Act...

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Will errors—affidavit evidence

Affidavit or witness statement evidenceIn an application for a grant of representation, usually the information contained in application form PA1P or PA1A or the online application (formerly a separate statement of truth) is the only evidence the court will require in order to prove the deceased’s Will. However, there may be circumstances where further evidence is needed, which may be in the form of an affidavit or witness statement.With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059 to provide for the use of witness statements as an alternative to affidavits for certain non-contentious probate applications and processes.Due executionThe inclusion in a Will of an attestation clause showing compliance with the requirements of section 9 of the Wills Act 1837 raises a presumption of due execution of the Will. Practitioners will need to decide whether each testamentary document satisfies the requirements of WA 1837, s 9.There may be doubts about due execution of the...

Jurisdiction—trusts and estates—the High Court and County Courts

The High CourtThe Chancery Division of the High Court, which operates after 2 October 2017 as part of the Business and Property Courts, undertakes a broad range of work which includes contentious probate business and claims relating to estates and trusts. Practitioners issuing proceedings in the Chancery Division should be familiar with the Civil Procedure Rules 1998 (CPR) and the Chancery Guide which provides practical information and guidance not contained in the CPR or the PDs. The Chancery Guide is to be used in conjunction with the CPR and PDs. In particular, CPR 57 together with the Chancery Guide, para 23 for probate and inheritance claims and CPR 64 together with the Chancery Guide, para 25 for estates and trusts.In 1862, the first rules for Contentious Business were introduced. In 1873 the Probate Court was absorbed into the Probate, Divorce and Admiralty Division of the High Court with the Rules for Contentious Business being absorbed into the Rules of the Supreme Court in 1964. In 1971, jurisdiction in probate matters...

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Ireland—Director’s certificate for a bilateral loan: borrower

Director's certificate This is a Precedent director’s certificate for use by the borrower of a bilateral facility. . What is a director’s certificate? Delivery of an original director's certificate is usually one of the conditions precedent in a facility agreement. Conditions precedent are the conditions that need to be fulfilled for funding to occur. They are included to provide the lender with a mechanism to ensure that, before funds are lent to the borrower: • certain documentary matters are dealt with, and • certain factual circumstances exist Documentary conditions precedent The documentary conditions precedent to lending are usually listed in a schedule to the facility agreement. ). As well as an original director’s certificate, documentary conditions precedent typically include certified copies of certain documents such as: • the constitutional documents and register of members and register of directors of the borrower, any guarantor and any party providing security for the transaction (a third-party security provider) • the board resolutions of the borrower, any guarantor and any third-party security...

Heads of terms—equity

Heads of terms—equity [ On letterhead of the Investor ] Strictly private and confidential [insert Manager names] [insert contact address of Managers] (Managers) Date: [insert date] SUBJECT TO CONTRACT Dear Managers, Proposed investment in [insert name and registered number of company] (Company) 1 Introduction 1.1 Further to our recent discussions, this letter sets out the principal terms and conditions upon and subject to which we have agreed to make an investment with you in the Company (Proposed Investment). 1.2 The terms in this letter are not exhaustive and, with the exception of this paragraph 1.2 and paragraphs 14, 15, 16, 17 and 18, are subject to contract and not intended to be legally binding on the parties. No party to this letter shall be legally bound to proceed with the Proposed Investment unless and until a formal written [ share purchase agreement OR asset purchase agreement] is entered into. 1.3 Following the Proposed Investment, it is intended that the Company will acquire [the entire issued share capital OR...

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X wishes to make a Will under English law dealing only with their UK assets. Can X sign the Will with what is their usual signature using foreign characters?

X wishes to make a Will under English law dealing only with their UK assets. Can X sign the Will with what is their usual signature using foreign characters? The formalities governing a valid will derive from section 9 of the Wills Act 1837 (WA 1837). If the formalities of this section are not complied with, then it is unlikely the Will shall be held to be valid, and, in that event, the intestacy rules will apply. This could result in the estate being distributed in a way that the deceased may not have chosen while they were alive. WA 1837, s 9(a) provides that for a will to be legally valid, it must be: • in writing • signed by the person making the Will (testator), or by another person in their presence and by their direction • in the presence of two or more independent witnesses present at the same time, and who must attest and sign the Will A ‘signature’ can be anything that...

A client is letting a property to a tenant who is the Secretary of State for a UK government department. What is the correct form of execution of a deed by the Secretary of State? The tenant’s solicitor proposes to execute the document by way of affixing the seal of the Secretary of State to the document together with a signature of an authorised person. Is there authority to do this?

A client is letting a property to a tenant who is the Secretary of State for a UK government department. What is the correct form of execution of a deed by the Secretary of State? The tenant’s solicitor proposes to execute the document by way of affixing the seal of the Secretary of State to the document together with a signature of an authorised person. Is there authority to do this? Government departments and government ministers (when acting in their official rather than their personal capacity) are generally regarded as emanations of the crown, which itself is considered to be a corporation sole. A corporation sole consists of one person and their successors in some particular office or station, who are incorporated by law in order to give them certain legal capacities and advantages which they would not have in their natural person. Execution of deeds by a corporation sole is not regulated by section 46 of the Companies Act 2006, nor section 74(1) of the Law of...

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Will set aside for lack of testamentary capacity and undue influence (Oliver v Oliver)

Private Client analysis: William Oliver died on 25 May 2018, at the age of 86 years. He was a widower, with five surviving children. The claimant, Jane, was his youngest daughter. She sought to set aside his last Will made in 2015 on the grounds that—a) it did not comply with the formalities to make a Will (see section 9 of the Wills Act 1837); and b) William lacked testamentary capacity when he made that Will; or c) the Will was procured by undue influence. The defendant, Rodney, was William's eldest surviving son and sole beneficiary of the 2015 will. He did not engage with the court process and refused to produce the original of William's penultimate Will, made in 2009. The claim was successful on the ground that William lacked testamentary capacity in 2015. The court also found that the Will was invalid on the ground of undue influence. Written by Alexandra Rogers, managing associate at Foot Anstey LLP.

Private Client weekly highlights—29 June 2023

This week’s edition of Private Client highlights includes: (1) video analysis of the key developments in Private Client law in the first half of 2023 and what to look out for in the second half of the year; (2) Companies House publishes an article reviewing the progress of the Register of Overseas Entities; (3) Unger (in substitution for Hasan) v Ul-Hasan (deceased), a Supreme Court decision on financial relief claim following the deaths of former spouses; (4) the government will publish draft clauses for the next Finance Bill on 18 July 2023; (5) the Law Commission of England and Wales has published recommendations for reform and development of the law relating to digital assets; (6) Lattimer v Karamanoli, in which the High Court was asked to rule on the validity of a marriage and whether it revoked the Will of one of the parties to the marriage; (7) Hughes v Pritchard, which demonstrates how the court approaches the assessment of detriment in proprietary estoppel claims and underlines the importance of...