In most cases, making a Will means that your affairs are finally put in order. Zyginta Urbonaite, a solicitor in the Particuliere klant department explains how two recent court decisions offer important reminders that your Will can impact trust arrangements made many years earlier.
De zaak Equiom tegen Velarde had betrekking op het testament van Patricia Moores en de trust die in 1949 door haar vader, de oprichter van het Littlewoods-imperium, was opgericht.
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.
Mevrouw Moores stelde in 2007 haar testament op bij hetzelfde advocatenkantoor dat de twee benoemingsakten had opgesteld, waarbij zij haar nalatenschap gelijkelijk verdeelde over haar drie kinderen. Na haar overlijden voerde Matthew aan dat het testament ook de benoemingsakte uit 1997 had herroepen, zodat ook hij een aandeel van een derde in het trustfonds zou ontvangen.
Hij beriep zich op de volgende bepaling in het testament:
“IK VERMAAK, NALAT EN WIJZIG mijn gehele onroerend goed en het resterende deel van mijn roerende goederen, waar deze zich ook bevinden en van welke aard dan ook, en waarop ik op de datum van mijn overlijden bezit, eigendom of recht heb, of waarover ik enige bevoegdheid tot testamentaire beschikking heb …”
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
Gepubliceerd: 18 februari 2022
