Probate law

By Lesley King, College of Law, London Ramifications of CorbettCorbett v Tresawna LTL 11 April 2001 (C7201072)Good news for solicitors from the Court of Appeal in the above case.

This is the litigation which followed the decision in Corbett v Newey [1996] 3 WLR 729 that a will which had been executed conditionally was invalid.Because the will was invalid, the beneficiaries (the deceased's nephews) took nothing and the estate passed under an earlier will to her brother and sister.

The costs of the dispute were ordered out of the estate.

The solicitors paid the nephews an agreed sum in damages calculated by reference to the amount of the net residuary estate, undiminished by the costs of the probate action.The deceased's brother and sister then claimed damages from the solicitors for loss in value to the estate caused by the litigation costs.

At first instance Mr Justice Eady held there was no element of double recovery.

The damages paid to the beneficiaries were a separate matter.However, the Court of Appeal held that the judge had failed to give sufficient consideration to identifying the scope of the duty owed by the solicitors.

Under the terms of their retainer their duty was to give proper effect to her testamentary intentions thereby preventing those interested in her estate suffering loss.

The solicitors owed complementary duties to the deceased (in contract) and to the beneficiaries (in tort).

They could not be liable both to the beneficiaries and to the estate in respect of the same costs.

ValuationIn re the Estate of Phyllis Mary Bliss (Deceased) [2001] The Times, 13 April, Mr Justice Ferris held that where a will granted an option to purchase property, the valuation had to be made at market value at the time of the death.It had to take into account facts known at that time; it could not be amended to allow for subsequent events affecting value.Thus, the fact that the deceased's husband had a right to occupy the property must be taken to have reduced the value even though he subsequently moved to a nursing home.This may seem an obvious conclusion but there was an issue to be decided.

Talbot v Talbot [1968] Ch 1 had held that knowledge of subsequent developments affecting value ought to be imputed to a valuer.

Lord Justice Harman said that valuers were not to draw blinkers over their eyes in relation to intervening events, such as the value of the property rising steeply between the death of the testator and the subsequent valuation.However, in McKay v McSparran [1974] NI 137, 142, Sir Robert Lowry, Chief Justice of Northern Ireland, said: 'It would be wrong, in my opinion, to substitute hindsight for inference and thereby depress or, more usually, enhance the value in such a case.'Mr Justice Ferris held that McKay was to be preferred to Talbot, which was based on a concession made by counsel.

Thus, the valuer had to consider the fact that the deceased's husband was entitled to remain in the upstairs flat rent-free for as long as he wished and/or was able to do (although he had also to consider the man's age, health, and the fact that his right of occupation was wholly personal).