Probate law

By Lesley King, College of Law, London

Trustee power of appointmentRoger Lester Breadner, Stewart Henderson Fleming, Abacus Trust Co (Isle of man) Ltd v Jonathan Granville-Grossman, Deborah Lansing and Others, LTL 30 June 2000

Trustees of a discretionary trust appointed the trust funds on accumulation and maintenance trusts in favour of the settlor's son and the children of the settlor's brother (the cousins).

This appointment contained a power to reappoint the fund to the settlor's son alone 'before the closing date' which in the event turned out to be 2 August 1989.The trustees purported to exercise the power on 2 August 1989 in favour of the son.

The cousins contended that the appointment was invalid.

The trustees and son contended that the words 'before the closing date' meant 'on or before the closing date'.

Alternatively, they argued (relying on Re Hastings-Bass [1975] Ch 25) that there was a principle in equity which would relieve their failure to exercise the power in time or that there was an ancient doctrine of equity that in certain circumstances equity would relieve against the defective execution of powers.

In addition, the trustees alone argued that the original appointment had been in excess of the terms of the original discretionary settlement and was void.Park J refused the contentions of the son and of the trustees holding as follows.1.

The power had not been exercised in time and was not valid.2.

Although the Hastings-Bass principle was an emerging one, it had to have some limits.

It had only previously been applied to declare void something which a trustee had done; it had never been applied so as to give effect to something which had not been done at all.3.

The ancient equity to grant relief against the defective execution of a power applies only where there has been a defective attempt to execute a power.

Here there was no power for the trustees to attempt to exercise.

It had expired the day before.4.

The court was satisfied that the original appointment from the discretionary settlement had not been defective.

Contested willJohn William Barrett v John Francis Kasprzyk, LTL 3 July 2000

There have been a number of cases recently on capacity and of the solicitor's duty to check it when taking instructions for a will.In this case the testatrix (T) was admitted to hospital on 11 November 1998 and remained there until her death on 16 January 1999.

On 11 January 1999 she gave instructions for a will to a legal executive.

The will left everything to her brother.

T signed the will on 14 January slightly misspelling her name.

The defendant (her son) contended that she lacked capacity (as a result of the drugs she was taking) both when she gave instructions and when she signed the will.Park J refused the son's claim.There was strong medical evidence from those who had attended T in hospital and strong evidence from the 'very experienced legal executive' who had taken instructions that T had not lost capacity.

The son's own expert admitted that it was not a 'foregone conclusion' that T would have been incapable.

Although the challenge in this case was not successful, it is a reminder of how quick disappointed family members can be to attack wills and how important medical evidence and attendance notes can be.