Probate: privileged wills and not-so-helpful help

first_img Professor Lesley King, College of Law, London Just how unusual it is to have a modern case on privileged wills is, perhaps, indicated by the comment of judge Peter Langan at the start of his judgment in Re Estate of Ashley Edward Servoz-Gavin, deceased 14 September 2009: ‘The case has involved a forensic journey on a path along which most lawyers, counsel and myself included, never travel after our student days.’ Privileged wills are the creation of statute. Section 11 of the Wills Act 1837 provides that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his property after death without formalities. The deceased, Ashley, had been a ship’s radio officer. On his death a grant was obtained on the basis that he had died intestate. Subsequently it became apparent that, in 1985 and again in 1990, he might have made valid privileged wills. Ashley’s cousin, Christine, gave evidence that he had said to her on those two occasions that if anything happened to him, he wanted everything to go to his aunt Anne. Aunt Anne was the twin sister of his mother and he had been very close to her. After the death of his mother, she provided a home for him in England between voyages. Christine’s daughter, Emma, dealt with the administration of the estate on the basis of an intestacy and, initially, obtained a grant of letters of administration to the use and benefit of aunt Anne. Christine had told Emma about the conversations with Ashley, but Emma had brushed them aside on the basis that a will could only be validly made in writing and with witnesses. Later, Emma’s husband came across the concept of privileged wills on the internet. After counsel and solicitors had been consulted, an action was commenced to revoke the grant pronounce in favour of a privileged will. The court accepted Christine’s evidence of the conversations with the deceased, describing her as a straightforward and reliable witness and the evidence as ‘overwhelming’. The issue then was whether the words used demonstrated that he had sufficient intention to make a will. Langan J held that it is unnecessary for the validity of a privileged will that the testator knew that he was making a will – what is required is that he intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death (see Re Stable [1919]). Here, the words used, the seriousness with which the deceased spoke and the fact that his cousin was a person who could be relied upon to carry out his wishes combined to show that the test of intention was satisfied. Counsel for those entitled on intestacy argued that the section 11 privilege is restricted to those serving or engaged to serve on British-­registered ships. This was not correct. There is nothing in the context or purpose of the legislation to indicate that the section should be restrictively construed. The phrase ‘being at sea’ in section 11 has been construed as extending to those who were ‘under orders’ to join their ship. The deceased was to be regarded as having been ‘at sea’ on the second occasion. The evidence showed that he had at that time been instructed to join his ship and his activity was thereafter directed towards preparation for the voyage, Re Wilson (deceased) [1952] PDAD followed. What had happened in 1985 was less well documented and the evidence was equivocal. The court, therefore, pronounced in favour of the 1990 will. That would revoke any previous will, including the 1985 one. The importance of good attendance notesPractitioners can be forgiven for feeling a little jaundiced about will making. There is increased competition from unqualified will writers and it is difficult to charge at a level proportional to the risks involved. The recent decision in Martin v Triggs Turner Barton [2009] EWHC 1920 is a salutary reminder of the need for good attendance notes (see also the comments in Sprackling v Sprackling [2008] EWHC 2696 (Ch) earlier this year). A solicitor had drafted a will leaving the residue of the husband’s estate to his wife for life, and the remainder to charity. The will included a power to advance £100,000 to the wife. She contended that it should have been a power to advance all but the last £100,000. As she had been present at the discussions over the will, this was a straightforward difference in understanding of what had been agreed and the judge preferred the wife’s version, among other reasons, because there was no full attendance note, just ‘notes on the draft will’, and some pages from a ‘counsel’s note book’. The firm’s problems with the life tenant in Martin v Triggs Turner Barton did not end with the disagreement over the power of advancement. After the testator’s death, the solicitor dealing with the administration told the widow that she was unlikely to be entitled to a widow’s pension. The solicitor agreed to write to the Department of Social Security and did so. The letter stated that the writer believed that the widow was in touch with them direct concerning any widow’s pension payable, and asked for confirmation of this fact. The DSS did not reply and the solicitor did not chase the DSS for a reply. The widow did not ask the solicitor about the state widow’s pension again. It later emerged that the widow was entitled to a pension and lost the opportunity to claim the benefits that would have been paid between 2000 and 2007 (valued at £25,047). Floyd J held that while, ordinarily, an executor does not owe a duty to advise a beneficiary in connection with the affairs of the beneficiary: see Cancer Research Campaign v Ernest Brown [1998] PNLR 592; [1997] STC 1425, that rule is subject to the principles about assumption of responsibility and reasonable reliance. In the judge’s opinion, the solicitor assumed responsibility to advise the widow about her pension entitlement, and to take steps to find out whether her belief in the non-entitlement was correct. The circumstances of the relationship were such as to make it reasonable for the widow to rely on the solicitor, so creating the necessary duty of care. He accepted the solicitor’s evidence that this was done as something of a favour, but said that it was done in a professional context in which it was reasonable for a recipient of the information to assume that it would be done with due care. He declined to find any contributory negligence on the part of the widow. Once responsibility had been assumed, there was nothing she needed to do. As a result, the widow had lost the benefits that would have been paid. Perhaps a warning to solicitors to think carefully before offering to help?last_img read more

Offaly clever

first_imgWhich sportsman played World Cup football and test match cricket for his country? How many prime ministers have served under our present Queen? What is Inspector Morse’s first name? All, it seems, perfectly easy questions for the profession’s intellectual elite, who – along with Obiter – last week competed in a fundraising quiz for the charity British Irish Rights Watch at London law firm Hodge Jones & Allen. The quizmaster, HJ&A’s Andrew Ewbank, was doing a sterling job of controlling the unruly mob of solicitors, barristers and media types when a gentleman in an audaciously coloured tie shouted him down. It was none other than TV newsman Jon Snow, there to conduct an auction scheduled for half time. The question had been: what is the only country in the world named after a desert? To which most of those present were able to reply: Namibia. Snow, however, begged to differ. What about Western Sahara? he bawled. Were we so resistant to change, he wanted to know, that we were unwilling to recognise this emerging nation? The quizmaster backed down and Snow got his point – for a country that does not exist. Western Sahara is a piece of land that used to be a Spanish colony and is now disputed by Morocco and the Algerian-backed Polisario movement. Compared with the team from Tooks Chambers, however, Snow had nothing of the Blarney Stone about him. Tooks seemed to have fielded every Irishman east of Tipperary, for how else could its team have identified every county in Ireland? Tooks emerged overall winners of the quiz, while national firm Tuckers got the prize for best name: Tuck That. For any readers still pondering the opening questions, the answers are: Sir Viv Richards (football for Antigua, cricket for the West Indies); 12 prime ministers (some of whom served more than one term); and the erudite fictional copper’s first name is, of course, Endeavour.last_img read more

Trademark

first_img Schutz (UK) Ltd and another v Delta Containers Ltd and another: Chancery Division (Mr Justice Briggs): 5 July 2011 The claimant was a company manufacturing bulk containers (IBCs). Each IBC consisted of a metal cage, into which a plastic bottle capable of holding 1,000 litres of liquid would be placed. The bottles wore out faster than the cages. The defendant company had established a business in which it would fit a new bottle, not necessarily of the claimant’s manufacture, to the cages (the altered IBCs). The claimants displayed their name and logo conspicuously on the cages and less conspicuously on the bottles. The defendants used a disclaimer sticker on each IBC. The claimant issued proceedings against the defendant, on the ground that the claimant’s business activities constituted trade mark infringement and passing off. The claimant contended that when the defendant fitted an IBC made by the claimant with a bottle made by another company, it was infringing the claimant’s trade marks in relation to the bottle and the IBC as a whole. It further claimed that the defendant’s conduct was sufficient to constitute passing off of its altered IBCs as the IBCs of the claimant, by giving the impression that the bottle was manufactured or approved by the claimant and that the IBC as a whole was the claimant’s product. The defendant contended that the continued appearance of the claimant’s trade marks on the IBC constituted no more than the legitimate use of the trade mark in relation to the cage alone, and was neither a use nor a misrepresentation in relation to the bottle or the IBC as a whole. The defendants further contended that their use of disclaimers was sufficient to avoid the allegation of infringement of the claimant’s trade mark. They submitted that where applicable their customers were fully aware that they were purchasing an altered IBC, and that where the IBCs were sold on, the eventual purchasers were indifferent to the manufacturing source of the different component parts of the IBC. The claim would be allowed.(1) On the facts, the average end user of an IBC would be likely to conclude that the claimant’s trade marks on the cage were being used in relation to the bottle as well and hence the entire IBC. Were the IBC to fail, it was likely that they would consider that the claimant was to blame. The appearance of the claimant’s marks on the cage, alongside a disclaimer, would be such to create in the average consumer the impression that the marks were being used in relation to the IBC and the bottle, rather than merely the cage. Consequently, the claim of trade mark infringement would be made out in relation to the bottles and the IBCs as a whole. (see [100], [103]-[110] of the judgment). On the facts, infringement of the claimant’s trade mark had occurred (see [110] of the judgment). OFT v Officers Club [2005] EWHC 1080 applied. (2) A successful claim in passing off did not require any demonstration that the defendant’s product would be of lower quality or more prone to failure than the claimant’s product. Likelihood of damage could lie in the fact that a purchaser would be likely to blame the wrong party for a failure or defect if it were to occur (see [119] of the judgment). On the evidence, passing off had been proven. Were any defects to arise in the IBCs sold by the defendant, they would most likely be blamed by users on the claimant. On the evidence, none of the disclaimers used by the defendant would be sufficient to remedy that misrepresentation. It would not matter whether there was a level of choice for end-level users as to which IBCs they received, nor would it matter whether the eventual consumers had any preference as to which supplier of IBCs was used (see [120], [122]-[123] of the judgment). On the evidence, passing off had occurred (see [124] of the judgment). Lindsay Lane (instructed by SNR Denton) for the claimants. Aubrey Craig (instructed by Clough & Willis) for the defendants. Associated Newspapers plc v Insert Media Ltd [1991] 3 All ER 535 applied; Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873 applied; Warnink (Erven) BV v J Townend & Sons (Hull) Ltd [1979] 2 All ER 927 considered. Infringement – Sale of reconditioned goodslast_img read more

Employment

first_imgContract of service – Breach of contract – Inducing breach of contract BGC Capital Markets (Switzerland) LLC v Rees and others: Queen’s Bench Division (Sir Raymond Jack sitting as a judge of the High Court): 27 July 2011 Wrotham Park Estate Co v Parkside Homes Ltd [1974] 2 All ER 321 considered; A-G v Blake (Jonathan Cape Ltd third party) [2000] 4 All ER 385 considered; Horkulak v Cantor Fitzgerald International [2003] IRLR 756 considered; WWF-World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc [2008] 1 All ER 74 considered; Giedo Van Der Garde BV v Force India Formula One Team Ltd [2010] All ER (D) 122 (Sep) considered. (2) In order to be enforced in England, a restriction on post termination employment had to be enforceable under both its proper law and English law (see [101] of the judgment). In the instant case, it could not be said that on the basis of minimal trading in forward cable that the two desks had been in competition with one another. If that was wrong, the court would nonetheless hold that to prevent R from working on T’s forward desk would be ‘an unfair compromise of R’s future activity pursuant to art 340a of the Swiss Code’. BGC did not have a protectable interest in preventing R from doing business in forward cable with banks and their employee traders with whom he had done business in Swiss francs because BGC had no business in forward cable. However, it was accepted that BGC had an interest in respect of R’s specific trades in Swiss francs which were in breach of cl 15.2.2, whereby he had agreed not to transact business with clients he had dealt with at BGC (see [104]-[105], [107] of the judgment). (3) In respect of the loan to R, the contract was clear as to how cl 3(d)(ii) should operate and there was nothing inconsistent with Swiss law in its provisions. Accordingly, BGC was entitled to recover the whole of the loan (see [98], [153] of the judgment). (4) It was settled law that the defendant had to intend to cause a breach of the contract, which had involved knowledge of the existence of the contract and that it would be broken, or at least turning a blind eye, to whether it would be broken or not (see [147] of the judgment). Applying settled law, it was clear that the defendants did not have the requisite intention to inducing R to terminate his contract. Accordingly, BGC’s claim against T and R failed (see [147] and [153] of the judgment). BGC’s claim against R to recover the loan succeeded. It’s claim against R for breach of cl 15.2.2 succeeded but its claim for damages failed. BGC’s other claims against R failed and its claim against T failed (see [153] of the judgment). OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2007] 4 All ER 545 considered. The claimant (BGC) and the second to fourth defendants, T, were substantial groups of companies carrying on businesses of inter-dealer broking, acting as intermediaries for banks and other financial institutions. On 5 June 2007, the first defendant, R, commenced work for the BGC, as head of the company’s Swiss francs forward desk under a contract of 6 March. The contract was for an initial period of four years with an additional notice period of three months, and the earliest R might have left under that provision was 4 September 2011. Clause 3(d)(ii) of R’s contract stipulated that a loan of £144,525 to him became immediately repayable when he wrongly terminated his contract. Clause 15.2.3 of the terms and conditions of the contract imposed post-termination restrictions on R for six months after its termination, to be enforceable in Switzerland, UK, Italy and France. Clause 15.2.32 included a ‘non-deal covenant’ that stipulated that R should not ‘become interested in (as an employee) any business activity that is in competition with the Restricted Business’. It was agreed that ‘the Restricted Business’ for the purpose of the clauses was the forward Swiss desk. Article 340 of the Swiss Code of Obligations provided that a prohibition had to be appropriately restricted, such that it did not ‘unfairly compromise the employee’s future economic activity’. On 6 April 2009, R gave notice to BGC that he was treating the contract as ended by reason of BGC’s reduction of his salary. That had been done by BGC under a term of the contract permitting a reduction if the desk’s earnings failed to meet a defined level. On 25 April, R entered a contract of employment with T and he commenced work as a broker on T’s forward cable desk on 18 May. BGC issued proceedings claiming damages by way of loss of profits from R for breach of his contract by terminating it on 6 April 2009 and damages for breach of the post-termination restrictions on his employment contained in the contract. There was also a claim for misuse of confidential information. BGC further claimed from R the sum of £144,525, the net amount of a ‘forgivable loan’ paid to R under his contract. R counterclaimed, against BGC damages for constructive dismissal. BGC claimed damages against T for inducing R’s breaches by offering him a job. It was agreed that the issues arising in connection with BGC’s case that T had induced R to leave his employment in breach of contract were to be determined in accordance with English law. The issues for consideration were, inter alia: (i) whether BGC was entitled to damages for loss of profits from R for breach of his contract; (ii) whether R was liable for breach of the post-termination restrictions on his employment, the issue being whether in working on the T forward cable desk, R was in competition with the Swiss desk; (iii) whether the company was entitled to £144,525, the net amount of a ‘forgivable loan’ paid to R under his contract; and (iv) whether T were liable in damages for inducing R’s breaches by offering him a job. The court ruled: (1) The approach to the loss of profit claims in respect of breach of contract of employment was to compare the financial position of a claimant as it was with the balance of the contract unperformed with that position if the defendant had not terminated the contract (see [71], [88] of the judgment). In the instant case, BGC had established that R had wrongly terminated his contract of employment. BGC was entitled to operate the salary reduction provision as it had done subject to whether the resulting salary was appropriate remuneration. In the instant case, the salary in question was appropriate remuneration. Accordingly, R had no good ground to determine his contract. However, had R not terminated his contract, he would have worked for BGC in London for six months and would then have left in accordance with V’s offer. BGC was entitled to recover the whole of that sum but it was to be set off against any claim for lost profits. Taking all matters into account, BGC had failed to show that it had suffered any loss in respect of a six-month period. Further, release payment damages were not available under either under Swiss law or English law (see [68], [71], [78], [81], [91], [97] of the judgment). Accordingly, BGC’s claim for damages failed (see [151] of the judgment). Jonathan Cohen (instructed by McDermott Will & Emery UK LLP) for BGC. Mohinderpal Sethi (instructed by Edwards Angell Palmer & Dodge UK LLP) for the first defendant. Simon Devonshire QC (instructed by Rosenblatt) for the second, third and fourth defendants.last_img read more

Leveson plea on ‘either way’ offences

first_imgThe chairman of the Sentencing Council has called on magistrates to send fewer ‘either way’ offences to the Crown court. The number of such cases reaching the Crown court rose from 310,000 in 2007 to 353,000 in 2010. Lord Justice Leveson told the House of Commons Justice Committee last month that the Sentencing Council is recommending that magistrates do not take the prosecution case at its most extreme when deciding whether to hear cases. ‘I hope and believe that magistrates will be more prepared to accept jurisdiction,’ Leveson told MPs. Leveson, who is currently leading the inquiry into regulation of the media, said he would like more to be done to improve public understanding of sentencing. Questioned on the approach to sentencing following the August riots, he stressed that neither the media nor the government had swayed sentencing decisions. ‘Political and other pronouncements about how the courts should sentence did not, as far as I understand it, drive a single sentence,’ he said. He added that the Sentencing Council may in future look at creating fresh guidelines in relation to public disorder.last_img read more

Courting opinion

first_imgGet your free guest access  SIGN UP TODAY Subscribe now for unlimited access To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

Cities of joy and shame

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more

Between the wars

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

No room for horse traders

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

The towers of London

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more