Trust & succession disputes
As wealthy families get larger and issues become more complex, there is a growing need to resolve some of the issues by means of alternative dispute resolution and sometimes, by referral to the courts.
We have one of the largest international teams dedicated to dealing with such issues as they arise, or with such disputes where no internal resolution is possible.
We deal extensively with such claims before probate, surrogate's and chancery courts in the United States, the United Kingdom, Hong Kong and certain offshore jurisdictions, and in other offshore jurisdictions, where we are not admitted to the courts, we work closely with local lawyers to provide a seamless service to our clients.
Claims take numerous forms, but areas of concentration include working with families to avoid these problems in the first place. In a number of circumstances, issues relate to the performance (or non-performance) of trustees, their relations with beneficiaries, or claims by non-beneficiaries with respect to trust assets.
In many cases we help clients resolve issues without the need for personal details to be made public through litigation.
Recent work
- Paola Fudakowska and Paul Matthews, advised the Settlor bringing the application in the matter of the Representation of R [2011] JRC 117 in which the Royal Court in Jersey has confirmed that the test for mistake is different from that established by the English Court of Appeal in Pitt v Holt and Futter v Futter [2011] EWCA Civ 197.
- In Clark v World Wildlife Fund and others reported at [2011] WTLR 961 Paul Hewitt and Natasha Owen represent the charities who successfully argued that English law governs the validity of a will dealing with English immovable property (thus confirming the rule in Dicey for the first time). The court also held that England rather than Alabama is the appropriate forum for the dispute, despite the testatrix's nephew, Mr Clark, having obtained letters of administration in Birmingham County, Alabama.
- Paul Hewitt and Stephen Richards acted for the charity in RSPCA v Sharp and Others before the Court of Appeal, which unanimously upheld the RSPCA's case that its benefactor, the late George Mason, intended his estate to pass free of inheritance tax. Click here to view our briefing or visit the Civil Society website. The first instance decision is reported at [2010] WTLR 855. The appeal is reported at [2011] STI 253 and [2011] WTLR 311.
- Paul Hewitt and Beatrice Goford act for the trustees in the Hastings Bass matter of Futter v Futter in their application to set aside an advancement as a result of incorrect tax advice. The first instance decision is reported at [2010] WTLR 609. The Court of Appeal decision is reported at [2011] 2 All ER 450. Leave has been sought for an appeal to the Supreme Court.
- In Re MN, reported at [2010] WTLR 1355, a dispute over the enforcement of a Californian Order that MN be returned to California, Paul Hewitt and Stephen Richards represent MN's niece. It is the leading authority on cross-border welfare disputes in the Court of Protection.
- In Natalia Morley-Clarke v MT Brooks & Others, reported at [2011] WTLR 297, Paul Hewitt and Stephen Richards represented Mrs Natalia Morley-Clarke, whose husband had died intestate. The judgment is the first on a widow's successful application to capitalise her life interest. The application was contested by one of the husband's sons from a previous marriage, who was subsequently ordered to pay costs of the entire application.
- In Esson v Esson and Others, reported at [2010] WTLR 187, Paul Hewitt and Isabel Moreton, acted for the successful claimant in an application for construction and rectification of his mother's homemade codicil. The Judge agreed that the words ‘should I predecease him' in the codicil were not intended to be a condition of the gift of a bank account to the testatrix's grandchildren.
- In ITW v Z, M, and various charities, reported at [2009] WTLR 1791 Paul Hewitt and Stephen Richards represented the charities in support of ITW's application for a statutory will.
- In the Matter of D [2009] CILR 432: Geoff Kertesz and Ziva Robertson acted in a leading Cayman decision regarding the test for the exercise of powers on behalf of an incapacitated person. The decision established an objective "best interests" test instead of the previous subjective "lucid interval" test, despite the absence of legislative amendments such as those found in The Mental Capacity Act 2005 for England and Wales.
- In the Matter of the Z Trust [2009] CILR 593: Geoff Kertesz was involved, together with Ziva Robertson, in a landmark Cayman decision, now approved by the English Court of Appeal, which was the first authority for the proposition that a trust fund may be divided into distinct shares on grounds of expediency rather than constitute a variation of the trust. The process is therefore quicker and simpler since neither consent of all beneficiaries is required nor must the court apply the more stringent "best interests" test.
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