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Will Challenges and Property Transfers

Posted on 9 August 2019 by Charlotte Dullaway

Will Challenges and Property Transfers

There was an interesting decision in the High Court at the end of last month which considered both the validity of a Will and a claim to determine ownership of a flat.

The case of Baxter v Todd (2019) considered the estate of the late Gul Baxter. Gul had tragically died at the age of 43 following a terminal illness. She left behind her husband, Sean Baxter, the claimant in the case, and a young daughter, Juliette.

As with many families these days, Gul and Sean had ups and downs in their relationship. Sean had two daughters from a previous relationship and, for a time, they came to live with Sean and Gul. Some time previously Sean had become entitled to purchase his council flat and he did this, becoming the legal owner along with Gul. When his daughters came to live with them they transferred the property into Gul’s sole name so that they could obtain a council property nearer the girls’ school. Although they eventually moved back to their flat they never transferred it back into their joint names so Gul remained the sole owner, although they considered themselves to be joint owners.

During the course of their marriage, Gul and Sean purchased a number of properties in Turkey which were paid for by re-mortgaging their flat in London. One of these flats was purchased specifically for their daughter, Juliette, but the ownership of the others was in question.

In early 2016 Gul as forced to give up work due to the severe pain she was suffering. Months of tests followed without a diagnosis. Eventually, in July 2016 she was diagnosed with terminal pancreatic cancer and was admitted to a hospice.

Shortly before receiving her diagnosis Gul contacted a solicitor with the intention of making a Will. Her aim in preparing the Will was very clearly to protect and provide for Juliette. She informed the solicitor that she was the sole owner of the flat and the Turkish properties. The Will gave her interest in the flat to trustees to hold on trust for Sean and Juliette, with the residue of the estate being held on trust for Juliette. The nominated trustees were Gulcan, the defendant in the claim and Gul’s sister, and Saadet Celik.

The judgement in the case makes clear that Sean was aware of the terms of the Will and was not happy about them. Following Gul’s death he issued a claim for a declaration that he was the sole beneficial owner of the flat. He also sought to challenge the Will on the grounds of undue influence and lack of knowledge and approval. There was also an adjourned claim under the Inheritance (Provision for Family and Dependants) Act 1975 which awaited the outcome of the current case.

The Court accepted Sean’s case that when the flat had been transferred into Gul’s sole name, a constructive trust had arisen. A constructive trust is a trust that arises by operation of law where it would be unconscionable for a person who holds an asset to deny the beneficial interest of another person in the asset. The trust is a legal construct declared by the court. In this case the court accepted that their intention had been for them to hold the beneficial title jointly in the same way they had previously held the legal title. Sean had relied on this intention to his detriment because, if Gul had decided to depart from their agreement, his rights to his home would have been at risk. The Court found that it would be unconscionable to allow Gul to depart from their agreement when Sean had acted in good faith upon it when transferring his legal interest to her. The Court’s decision meant that there was very little of value in Gul’s estate to be dealt with by the Will. The Turkish properties had been purchased using money raised from re-mortgaging the flat and so ownership was deemed to follow the ownership of the flat.

The challenge to the Will was unsuccessful. Whilst the Court made clear that they had no doubt that Gulcan and her mother made various allegations about Sean to Gul, sometimes in Juliette’s hearing, it was decided that Gul had such a strong character that this would not have influenced her decision. It was also noted that the initial instructions for the Will had been provided before Gulcan arrived at Gul’s bedside.

The challenge based upon the assertion that Gul did not know or understand the terms of the Will was based upon an allegation that one part of the Will was unworkable in practice. The Court did not accept that this was the case and so pronounced in favour of the Will.

Whilst the Will challenge was unsuccessful, in the grand scheme of things Sean was the victor on the day. Having received the flat and the Turkish properties there was very little left in the estate to pass under the Will. This also meant that there was no need to proceed with the adjourned Inheritance Act claim. In the final paragraphs of the judgement it was made clear that the Court did not feel that Gulcan was a suitable person to act as executor and trustee under the Will given her obvious dislike of Sean and her repeated attempts to tarnish his reputation during the trial.

The lesson to be learned from this case is that probate disputes are rarely straight forward. They often have many different elements with different claims being brought in tandem and family relationships being put under the microscope. When emotions can run high and allegations are being made it is important to have empathetic but pragmatic advisors to guide you.

If you are considering a probate claim we are happy to discuss the options with you. Call our contentious probate specialist, Charlotte Dullaway, on 01823 446230 or email to charlotte.dullaway@pardoes.co.uk.

Posted in: Dispute Resolution