September 2022 #236 – Law Journals

Guest editorial: Great expectations

Elizabeth Neale advises practitioners to take a holistic approach when advising clients The flashpoints around intergenerational giving have some common themes: a desire for control, a sense of entitlement and unrealistic expectations are all common, as is the feeling that whatever is done should be ‘fair’. As trust and estate practitioners we spend much of …

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Trustees: Tracing and the rule in Clayton’s case

Mark Pawlowski takes a critical look at the rule in Clayton’s case and asks whether it still has application in the context of a tracing claim A rigid application of Clayton’s case, although providing a rule of convenience, can produce results of a highly arbitrary nature. Where a trustee (or other fiduciary) wrongfully purchases an …

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Lasting powers of attorney: What can we expect?

Holly Mieville-Hawkins gives the heads up on changes to lasting power of attorney laws The OPG is going to explore how the roles of certificate provider and witness may be merged, without undermining the critical safeguards provided by the role(s). The concept of a power of attorney is not a new one. Powers of attorney …

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Trusts: The Court of Appeal reviews the elements required to establish knowing receipt, including unconscionability

Sukhninder Panesar examines a case that explores liability for knowing receipt and the need for a continuing proprietary interest The claimant must show that they have a continuing proprietary interest in property which is in the hands of the alleged knowing recipient. Where such a finding is not made, the requisite unconscionability does not exist, …

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Testamentary gifts: What happens when there is a change in value of gifts between making a will and death?

It is difficult to establish want of knowledge and approval where a defendant has made a specific gift. Sarah Bolt reviews a case in point The court held that the lack of mathematical equality at the time of death did nothing to undermine the rationality of the provisions which the solicitor was instructed to incorporate …

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The 1975 Act: The status of adult claims and the treatment of conditional success fees

Adult claims under the 1975 Act often require more than need and a relevant relationship. Cameron Stocks explains Financial need plus relevant relationship will not always be enough. It will often be the case that there will need to be ‘something more’ to justify an award being made. The decision in Batstone v Batstone [2022] …

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Testamentary capacity: Stick to the rules

Pauline Lyons discusses a case that outlines the importance of following procedure when will drafting When scrutinised and tested by the court in the course of Gavin Boast’s validity claim, the evidence showed that the will could not be upheld within the realms of the Banks v Goodfellow test and was accordingly set aside. The …

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