In most cases, making a Will means that your affairs are finally put in order. Zyginta Urbonaite, a solicitor in the Particulares department explains how two recent court decisions offer important reminders that your Will can impact trust arrangements made many years earlier.
El caso Equiom contra Velarde se refería al testamento de Patricia Moores y al fideicomiso creado por su padre, fundador del imperio Littlewoods en 1949.
Mrs Moores had been given a power of appointment over the trust assets. The power could be exercised by revocable or irrevocable deed, or by will or codicil. Mrs Moores exercised the power by a revocable deed in 1981 to divide the fund with effect from her death into three separate funds for the benefit of her three children, Christian, Rebecca and Matthew. In 1997, she made a further deed of appointment revoking the appointment made in 1981 and instead dividing the trust fund with effect from her death just between Christian and Rebecca.
La señora Moores redactó su testamento en 2007 con el mismo bufete de abogados que había elaborado las dos escrituras de nombramiento, en el que repartía su patrimonio a partes iguales entre sus tres hijos. Tras su fallecimiento, Matthew alegó que el testamento también había revocado la escritura de nombramiento de 1997, por lo que él también recibiría una tercera parte del fondo fiduciario.
Se basó en la siguiente cláusula del testamento:
“DEJO, LEGO Y NOMBRO la totalidad de mis bienes inmuebles y el resto, el remanente y el saldo de mi patrimonio mueble, independientemente de su ubicación y naturaleza, de los que sea propietario, esté en posesión o tenga derecho en la fecha de mi fallecimiento, o sobre los que tenga cualquier tipo de facultad de disposición testamentaria…”
The court held that this clause did revoke the 1997 appointment and made a new appointment of the fund in favour of Mrs Moores’ three children equally. This is because the judge considered that Mrs Moore knew about her power of appointment under the settlement when making her Will and unusual reference to include any property over which Mrs Moores had any power of testamentary disposition whatsoever evidenced an intention on the part of Mrs Moores to exercise a power of appointment.
In Mattingley v Bugeja, the court considered whether Kim Mattingley had agreed with her sister Karen Bugeja that subject to the right for her mother to continue living in her property during her lifetime, 26.625% would be held by Karen on trust for Kim’s daughter Anabel after her death.
Anabel’s father gave evidence that Kim had discussed this with him and Anabel claimed that Karen had promised to hold this share for her during a conversation with Kim at which she was present.
However, Kim’s will left her entire interest in the property to Karen and did not mention that any provision should be made from the property for Anabel. The court held that the 2016 Will expressed the last Deceased’s wishes and that there was no indication that Kim had created a secret trust of the property. The court emphasised that the Deceased had numerous opportunities to include provision from the property for Anabel in her will. Although it was accepted that communications between Kim and her solicitors indicated that Kim wanted Karen to ultimately make some provision for Anabel from the property, the vague way in which this had been expressed was not sufficient to override the terms of the will.
These recent court decisions emphasise importance of making sure that you think about what would happen to all your assets when expressing your last wishes in your Will. If you are concerned about the impact that your Will may have in relation to any previous arrangements that you have put in place, please contact a member of the Private Client department at privateclient@rfblegal.co.uk
Publicado: 18 de febrero de 2022
