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Ben Parr-Ferris

Brighton, United Kingdom

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Summary

Practice Areas:

  • Dispute resolution
  • Contested Probate
Healys Llp

Called to the bar in 1996, Ben has worked in solicitors’ firms since 2001.

Ben works in the dispute resolution team and has experience in a wide range of areas including:

  • Professional negligence claims, particularly against surveyors, architects and other professionals in the construction industry.
  • Defamation. Ben has acted in libel and slander claims against national newspapers and individuals in claims brought by businessmen, teachers, solicitors and others.
  • Probate disputes. This includes claims relating to undue influence in deeds (as well as wills), proprietary estoppel and claims under the Inheritance (Provision for Family and Dependents) Act 1975.
  • Land disputes including contested claims before the Adjudicator to HM Land Registry and boundary disputes. Ben also has extensive experience in construction and conveyancing disputes.
  • Leasehold disputes including contested lease renewal claims and claims before the Leasehold Valuation Tribunal.
  • Partnership disputes and claims relating to unincorporated associations.
  • International disputes including international freezing orders in support of foreign proceedings.
  • Enforcement actions.

Previous Employment

Experience

Ben has recently been involved in Healys’ expansion into Cyprus, lending his extensive experience in property law and international disputes to the Cyprus team.

Ben also specialises in Contentious Probate and deals with a range of issues relating to this practice of law. An example of Ben’s casework are below:

  • Bringing a claim against a firm of solicitors on behalf of an intended beneficiary of a will. The solicitor had prepared the will negligently so that the claimants inherited nothing even though the testator had intended them to have a substantial bequest forming the majority of the value of the estate. A substantial payout was made by the solicitors’ insurers before the case went to trial.
  • Representing a testator’s family member to arrange the removal of the named executor of a will based on his unsuitability to act in that position. The named executor had been involved in a protracted dispute with the beneficiaries prior to the testator’s death, and had previously been found to be dishonest.
  • Glanville -v- Glanville [2002] EWHC 1271 (Ch) Successfully defended a claim brought by the executors of an estate. The executors alleged that a gift of property made during the testator’s lifetime was made following undue influence exerted by his wife. The court found that there had been no undue influence.
  • Advising a client whose parents had disinherited him because of untrue statements made about him to his parents by his siblings.
  • Defending a claim brought by a beneficiary of a will who claimed that the testator had no capacity and did not know and approve the contents of her last will. The claim in the High Court’s Chancery Division arose from a bitter rift in the family, and was very hotly contested with neither side wanting to give ground to the other. Despite this, the claim was settled at mediation shortly before trial.
  • Advising an executor in respect of an asset that had been deliberately transferred by the testatrix before her death to prevent it falling into the hands of her husband under the will. The testatrix had not wanted to reveal to her husband that he would not inherit the property. Following correspondence with the husband’s solicitors his threatened claim for the property to be transferred to him was not pursued.
  • Advising a litigant on the merits of an appeal following a trial (in which we had not acted) where the client had failed to prove that either of the testator’s last two wills should be propounded. Our analysis showed that the trial judge had been wrong on some points of law, but that an appeal was not worth bringing because the only will that could stand and would have benefitted the client was unenforceable for reasons that had not been identified earlier.
  • Advising an executor where family members who had been bequeathed a share of a property had taken up occupation of it and refused to leave.
  • Acting for an executor and beneficiary in proceedings where the testator’s brother had alleged that the will had not been executed properly because the attesting witnesses were not present and together when the will was executed by the testator. Extensive witness evidence was obtained to rebut the allegations, and an application made to the court to prove the will. The claim of improper execution was withdrawn before the proceedings reached trial and the matter settled.
  • In a case where a former spouse of the testator disputed the testator’s ownership of property purported to be disposed of in the will, and sought provision under the Inheritance (Provision for Family and Dependents) Act, the value of the estate was not sufficient to merit proceedings being issued. We negotiated a settlement in correspondence.
  • Representing the wife and family of a testator where the family discovered after the testator’s death that most of the testator’s property had been fraudulently transferred to another family member. Included proceedings before the Adjudicator to HM Land Registry to protect the property from disposal before applying to the court to recover the property for the estate.
  • Application to the court for the sale of a property held in a will trust to allow one of the beneficiaries to access his share of the sale proceeds. The court ordered a sale and made a costs order against the beneficiary who had opposed the sale.

 

Education

University of Wolverhampton

University

1992 - 1995

LLB HONS

Inns of Court School of Law

University

1995 - 1996

BAR VOCATIONAL COURSE

MIDDLE TEMPLE

Other

1996 - 1996

CALLED TO THE BAR

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Solicitors' Journal
Following the golden rule

Ben Parr-Ferris considers the court’s approach to testamentary capacity in Burns and two recent decisions on the application of costs rules in contentious probate cases

22 December 2016

 

A number of contentious cases this year have revealed a toughening environment for family members who challenge wills, and a changing approach to the cost of probate proceedings.

In Burns v Burns [2016] EWCA Civ 37, the Court of Appeal had to consider a first-instance judgment that had a number of deficiencies.

Anthony and Colin Burns were brothers. Colin claimed pronouncement in solemn form of a 2005 will of their mother which provided for equal division of the estate between them. Anthony challenged validity on the grounds of capacity and want of knowledge and approval, preferring a 2003 will which left the mother’s 50 per cent share in her home to him. It was agreed that the 2003 will was valid. As Colin owned the other 50 per cent share in the property, the difference was the value of 25 per cent of the property.

At first instance, the judge found that the witnesses on both sides lacked impartiality and objectivity, so relied only on the contemporaneous documents. In 2003 the mother was suffering from confusion: a number of mini mental state examinations (MMSEs) were undertaken in which she did not perform well, and other evidence supported that she was confused, forgetful, and suggestible.

In November 2004 she gave instructions in writing for what became the 2005 will. In May 2005 further memory assessments were undertaken, as well as an occupational therapy test in which it was found that her mental health was moderately impaired and she required considerable care support.

Three weeks later, the 2005 will was executed in the presence of the drafting solicitor. The solicitor was long experienced but did not know of the golden rule, which requires a medical practitioner to be present at the signing of a will by the elderly or infirm. Nonetheless, he spoke to the mother, read over the will, and arranged its execution, despite not arranging for a medical witness, having regard to previous wills, or preparing a proper note.

The judge pronounced in favour of the 2005 will. The assessments of the mother’s mental ability were not directed at her testamentary capacity, but her care needs. The solicitor would have been alerted when he met her had she lacked capacity (presumably following Lord Justice Mummery’s view in Hawes v Burgess [2013] EWCA Civ 74), and the evidence showed that she knew what she was doing. He disregarded the MMSE tests, ignored the evidence of the medical expert, ignored the independent evidence of the day-care centre manager, and took no account of the failure to follow the golden rule.

The Court of Appeal expressed its ‘doubts as to the judge’s conclusions’ and had concerns ‘as to the failure of the judge to articulate... the countervailing considerations’. However, the court then decided that the judge’s summary of the facts was a full one, and that ‘such a judgment should not readily be overturned, even if some of the materials might have been more fully dealt with’. Similarly, want of knowledge and approval was dealt with by the judge’s consideration of the solicitor being experienced and having seen the testatrix alone. The judge was then entitled to find that she did know of and approve the will.

There are several points of note from this case. First, an ‘experienced’ private client lawyer being ignorant of the golden rule is shocking, but the court (not for the first time) made clear that it is a rule of best practice, not of law. The fact that it is ignored does not itself lead to the resulting will >> >> being invalid.

What may come as more of a surprise is that the Court of Appeal will not interfere with a judgment simply because it has doubts about the judge’s findings. Provided that the judge considered the evidence and the findings of fact were sustainable on that evidence, the court will not readily interfere with them.

However, there is another, more important point. MMSEs and similar tests undertaken by medical professionals are not determinative of capacity, and a judge can disregard them. These tests are frequently in evidence in capacity and want of knowledge cases but they may not have the effect that claimants think they do.

Costs rules

There are also significant signs of the court’s changing approach to the costs of probate proceeding, highlighted by two first-instance cases: Elliott v Simmonds [2016] EWHC 962 (Ch) and Breslin v Bromley [2015] EWHC 3760 (Ch).

As in any civil claim, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party. The court can, however, depart from that general rule, and in contentious probate cases there are two specific exceptions:

If the litigation has been caused by the conduct of the testator, the court can order that the costs are paid from the estate; and

If there are reasonable grounds for investigation into the validity of a will, the court can make no order as to costs.

In Elliott, the defendant was an illegitimate child of the deceased who entered a caveat that prevented a grant of probate being made after no provision was made for her in the will. She nonetheless made no claim on the estate, and after two years had passed the executor issued a claim to prove the will. The defendant still raised no challenge to the will but raised the passive defence that she insisted on the will being proved in solemn form and on cross-examination of the witnesses. Under part 57.7(5) of the Civil Procedure Rules, the court normally makes no order as to costs against such a defendant unless there was no reasonable ground for opposing the will.

In this case, however, the judge found that the points taken in cross-examination of the witnesses would not have revealed anything of assistance to the court on the validity of the will. Even taken together, the various grounds did not amount to a reasonable ground. It therefore reverted to the usual rule on costs and ordered the defendant to pay the costs from the time when she had sufficient information to know that the defence should have been withdrawn. The court ordered a payment on account of £65,000.

It is not uncommon for defendants to raise these defences in the expectation that the costs of the exercise will be borne by the claimants, and it may lead to a settlement involving some payment to the defendant. Elliot demonstrates that this is a risky strategy and that claimants would be well advised to consider the likely arguments against the will before making concessions.

In Breslin, the claimant was the executor and beneficiary of his aunt’s will. He had taken his aunt to a solicitor to give instructions, but she took the will away and executed it elsewhere. One of the witnesses later made a statement that only he had been present at the time of execution, contrary to section 9 of the Wills Act 1837, and the defendant challenged the will on that basis. The claimant brought a claim to propound the will and succeeded. The unsuccessful defendant argued that she should not have to bear the costs because:

The litigation would not have been necessary had the claimant dealt with the execution properly;

The deceased was the cause of the dispute because of a statement made about her wills that misled the defendant; and

The circumstances warranted investigation.

Mr Justice Newey dismissed these arguments on the following grounds:

The mere fact that someone was responsible for a will having been executed otherwise than in front of a solicitor does not make them the cause of the litigation about it;

A testator is not to be taken to have promoted litigation because he ‘misled other people and perhaps inspired false hopes… that they may benefit after his death’ (per Re Cutliffe’s Estate [1959] P 6); and

The judge did not consider whether the investigation had been reasonable. The defendant had made a commercial decision to oppose the will which had proved mistaken. In those circumstances it was fair that she should pay at least some of the costs incurred by the claimant. 


Interestingly, another defendant who relied on the passive defence raised in Elliott succeeded in having no order made against her, but did have to pay her own costs. This is a first-instance decision and may be of limited application, but beneficiaries to contested wills may well wish to consider the ‘commercial’ element of the decision to challenge when assessing the likely costs order that will be made. What is certain is that when applyingthe costs rules, the courts are becoming far less accommodating for family members challenging wills.

Ben Parr-Ferris is a member of the dispute resolution team at Healys Solicitors


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