Trusts, Wills & Estates

Members expertise includes:

• The scope of trustees’ powers and duties;
• The administration of trusts, including investment decision making, managing conflicts of interest, Public Trustee v Cooper, Beddoe and Berkeley Applegate applications and removal actions against trustees;
• The taxation of trusts and estates, including inheritance tax, capital gains tax, income tax and SDLT issues;
• Construction and rectification of trust documents;
• The intersection between trusts, insolvency, company law and civil fraud including sham trusts, transactions defrauding creditors and the use of offshore trusts in asset concealment initiatives;
• Allied fields including charitable trusts, protector powers, domicile, trusts of land (cohabitation), relationship breakdown (matrimonial and non-matrimonial), and vulnerability including court of protection practice;
• Professional negligence in trusts administration, advising and tax planning;
• Claims for breach of trust, knowing receipt and dishonest assistance together with associated claims against company directors;
• Trust-linked enforcement and recovery actions and advice.

Our recent and important cases in the trusts field include:

• Da Silva v Heselton [2022] EWCA Civ 880 (Court of Appeal) – whether a professional can charge under trustee charging clause when their profession is irrelevant to administration of the trust
• Antonio v Williams and McBean [2022] EWHC 2383 (Ch) – when orders can be made in 1975 Act claims where no grant has issued
• Brake v Chedington [2022] EWCA Civ 1302 – rights of occupation of a beneficiary as against their trustee
• Mackay v Wesley [2020] EWHC 3400 (Ch) – acceptance of trusteeship by new trustee set aside for undue influence
• Re 1964 F and 1987 F Settlements (Jersey Royal Court) – grant to trustees of powers to remedy historic self-dealing
• Re A Trusts [2018] SC (Bda) 42 Civ, Bermuda S.C.: Public Trustee v Cooper – approval for trustees’ decision to make very substantial investment despite beneficiary opposition; treatment of expert evidence
• British Malayan Trustees Ltd v Talib [2019] SGHC 270, Singapore H.C. – construction of accruer clause in older settlement
• Crociani v Crociani [2014] UKPC 40 (Privy Counsel Appeal from Jersey) – proper approach to trust jurisdiction clauses
• Brown v New Quadrant Trustees Re Nodes [2021] EWHC 1057 (Ch) – responding to breach of trust claim with reverse summary judgment and Public Trustee v Cooper application
• Re R Trusts (Guernsey Court of Appeal) Public Trustee v Cooper – change of circumstances and threat by protector to remove trustees

Members expertise includes:

• The invalidity of wills for inter alia testamentary incapacity, forgery, undue influence, want of knowledge and approval and fraudulent calumny;
• The interpretations of wills and rectification of testamentary instruments and associated tax planning regimes;
• Proprietary estoppel and constructive trust disputes arising in the context of estates;
• The administration of estates, disputes concerning personal representatives including their removal, and estate preservation and management with particular experience regarding digital assets;
• We have substantial experience in claims under the Inheritance (Provision for Family and Dependants) Act 1975, including high-value matrimonial cases, and cases involving discretionary will trusts;
• Members also deal with professional negligence considerations arising out of the preparation of wills and the administration of estates.
• As the home of four of the leading textbooks on wills and the administration of estates we are well versed in the challenges that estate administration presents and use the law to drive practical solutions for clients.

Specialist estates practice demands robust knowledge of wider areas of the law. New Square is able to offer expertise in the associated fields of tax practice, family law, the operation of charities and the court of protection to provide clear advice on complex disputes.

Our recent and important cases in the field of probate and estates include:

• Roberts v Gill [2010] UKSC 22 – leading authority on derivative actions
• Marley v Rawlings [2014] UKSC 2 (Supreme Court) – interpretation and rectification of Wills
• Guest v Guest [2020] EWCA Civ 387 (Court of Appeal) – proprietary estoppel and quantification of remedies
• Shirazi v Susa [2022] EWHC 477 (Ch) – contested removal of a litigation friend
• Kaur v Bolina [2021] EWHC 2894 Fam – limitation and the 1975 Act
• Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211 – aggregation of claims for the purposes of a single limit of indemnity in professional indemnity insurance
• Rokkan v Rokkan [2021] EWHC 481 (Ch) – on the interplay between foreign forced heirship rules, the Hague Convention on trusts and UK inheritance law.
• Gardiner v Tabet [2021] EWHC 563 (Ch) – on fluctuating capacity and the effects of mental illness and delusions upon testamentary capacity
• Re Nodes [2021] EWHC 1057 (Ch) – will rectification
• Goss-Custard v Templeman [2020] EWHC 632 (Ch) – testamentary capacity
• Price v Saundry [2019] EWCA Civ 2261 – trustee guilty of misconduct not entitled to take own costs of claim to account of trust fund or costs of claimant that she was ordered to pay.
• Antonio v Naib – resisting pre-action disclosure against executor
• Chin v Chin [2019] EWHC 523 (Ch) – Will validity and non-english speaking testators
• Todd v Parsons [2019] EWHC 3366 (Ch)
• Griffin v Higgs [2018] EWHC 2498 – removal of conflicted executors, costs
• Lewis v Tamplin [2018] EWHC 777 (Ch) – trust disclosure

Offshore & international

Much of our private client work is conducted offshore or has a substantial offshore or international element. We have particular experience as advisors and advocates in cases involving the laws of Anguilla, the Bahamas, Bermuda, BVI, Cayman, Gibraltar, Guernsey, Jersey, Hong Kong, Singapore and the Isle of Man. In these cases we work closely with our colleagues in international legal teams and have developed strong relationships with leading firms in many jurisdictions. Chambers regularly provides leading and junior counsel both independently and as part of wider Counsel, advocate teams to assist in large scale offshore litigation.

Charities in relation to private client

Chambers has an enviable reputation in charities work in the context of trusts and estates. Members act for leading charities in succession cases involving issues as diverse as Schemes, contested probate, family provision, and the construction of Wills. In respect of charitable trusts, Chambers’ expertise ranges from establishment, registration, trustee duties and regulation, to the full spectrum of Court applications. A number of cases have involved detailed historical analysis in relation to ancient trusts, where substantial property and financial interests depend on the construction of original documents – and subsequent conduct requires regularising. Members conduct off-shore work with a charity context.