Legacy Management: latest developments March 2023
Insight
"Nice try! Scammer fails in his attempt to defraud air ambulance charity of approximately £2m"
There have been reports in the press this week that Stewart Pearman, a 75 year-old from Tewkesbury, has been sentenced to five years in prison following his forgery of a letter of wishes supposedly declaring him to be the sole executor of a will and the main beneficiary. The deceased, an elderly woman and friend of Pearman, had made a will in 2014 leaving the bulk of her estate to an air ambulance charity and £25,000 to Pearman. Pearman stood to inherit £2,186,079 should he have succeeded in his fraud.
It is great to see the CPS undertake a criminal prosecution against this fraudster. All too often these matters only get as far as the civil court allowing fraudsters to avoid criminal sanctions.
Overcharging solicitors – what can a charity do as beneficiary?
It is clear that a PR who has instructed solicitors to act in relation to the administration of an estate, has the right to have the solicitors' bill assessed by the court. The right is enshrined in s70 of the Solicitors Act 1974. Section 71(3) states that a beneficiary may also ask the court to assess the said solicitors' costs as a third party (the beneficiary is, of course, not a signatory to the solicitors' retainer letter).
However, doubts had crept in about the efficacy of the section 71(3) jurisdiction following the case of Tim Martin Interiors Ltd v Akin Gump LLP in 2011 in which the Court of Appeal suggested that a third party assessment could only be very limited and was not available where the bill had already been approved and / or paid for by the client.
Kenig v Thomson Snell and Passmore [2023] EWHC 181 (SCCO) clears up any confusion. The Judge distinguished the Tim Martin cases on the basis that it concerned a contractual relationship rather than a fiduciary relationship. Despite the executors having already approved the estate accounts and paid the bill, the beneficiary’s application was successful.
New limitation period for probate claims?
The deceased had died suddenly while living in Scotland, only five months after marrying his wife, Lynne, and one month after giving instructions for a will which was never signed. Letters of administration were granted to Lynne in 2011 and the bulk of the estate was distributed to her.
In 2020 the deceased’s brother, Paul, issued a claim seeking revocation of the grant and to propound a will made in 2002 which gave everything to him. He argued that, at the date of the deceased’s marriage and death the deceased had been domiciled in Scotland. Under Scottish law, the 2002 will was not revoked by marriage and therefore was the deceased’s last valid will.
Lynne sought that Paul’s claim be struck out on the grounds of laches – the equitable defence which states that where a claimant delays in asserting rights, they may forfeit the right to bring a claim. It was relevant that, at the time of the grant, Paul had indicated he wanted nothing from the estate and that the estate had been fully distributed.
The difficulty for Lynne was that laches is only generally available to bar equitable relief. The revocation of a grant is not an equitable claim – it is a legal claim. Lynne therefore argued that laches could be used as a defence to this probate claim if laches would bar any subsequent proceedings for which purpose the probate claim had been brought.
In this case, the court found that any recovery claim arising against Lynne if Paul were to be successful in the probate claim, would be equitable relief against which she would be entitled to raise the defence of laches. As a result, the Judge jumped a few hurdles and held that the recovery claim was bound to fail on the ground of laches and therefore dismissed the probate claim. The court noted a judge’s duty to be “proactive and interventionist” in furthering the overriding objective of the CPR. Allowing the revocation claim to go ahead would be contrary to the overriding objective of the CPR of saving expense and avoiding delay.
If you require further information about anything covered in this briefing, please contact Henrietta Mason, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2023
