Trust and Estate Disputes Quarterly Round-Up

This Trust and Estate Disputes quarterly round-up provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2023 – December 2023.


The High Court has made an order pursuant to section 2 of the Forfeiture Act 1982.

The Forfeiture Act 1982 records that the forfeiture rule “means the rule of the public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”. Section 2 of the Forfeiture Act 1982 enables the court to use its discretion to modify the effect of the rule on the person who unlawfully killed thus enabling them to benefit from an estate that come to be as a result of the unlawful killing.

In this case the executor of the estate of the late Adrian Berry applied for relief from the forfeiture rule because Mr Berry had assisted in the death of his wife, Hannah Goodman, who was terminally ill. Mr Berry had subsequently committed suicide.

Master McQuail referred to the guidance provided in the judgment of Lord Justice Mummery in the case of Dunbar v Plant which sets out a list of factors that may be relevant in the exercise of the court’s discretion:

“The court is entitled to take into account a whole range of circumstances relevant to the discretion, quite apart from the conduct of the offender and the deceased: the relationship between them; the degree of moral culpability for what has happened; the nature and gravity of the offence; the intentions of the deceased; the size of the Estate and the value of the property in dispute; the financial position of the offender, and the moral claims and wishes of those who would be entitled to take the property on the application of the forfeiture rule.”

Master McQuail went on to summarise what was required of him in making his determinations as follows:

“So I must be satisfied on the balance of probabilities that there has been an unlawful killing or assistance in a suicide. I must then consider my power under section 2(1) of the Forfeiture Act, applying the criterion under section 2(2). That is, I must have regard to the conduct of the offender, the conduct of the deceased, and such other circumstances as appear to me to be material to determine whether the justice of the case requires modification of the rule.”   He went on to conclude that there was an unlawful killing thus engaging the provisions of the Forfeiture Act but that there would have been no prosecution on the basis of insufficient moral culpability and that an order for relief from forfeiture was necessary to do justice.


The High Court has considered whether a claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) survives the death of a claimant and can be pursued by an estate.

A 1975 Act claim was initially brought by Neil and Julie Archibald in relation to the estates of Neil’s late parents, Rosemary and Malcolm Archibald. Neil had since died and Julie, his wife, wanted to continue the claim on behalf of his estate.

In the first instance, Deputy Master Francis observed that the provisions of the 1975 Act were inconsistent with a claim being pursued by a child of the deceased following that child’s own death. On death, the child would no longer have any maintenance requirements and the section 3 factors concerning the child would also fall away (for example, their financial resources and needs).

Deputy Master Francis looked at three High Court decisions where it had been held that the claims under the 1975 Act did not survive the death of the applicant. He also considered the judgment in Unger v Ul-Husan [2023] UKSC 22, where the court said that a claim for financial relief under matrimonial legislation capable of passing in principle on death by operation of the Law Reform (Miscellaneous Provisions) Act 1934.

He concluded that it was clear that a claim by a child of the deceased under the 1975 Act does not survive his or her death. He said that on a proper construction of the 1975 Act, such a claim is personal to the applicant and can only be pursued whilst the applicant is alive. This was supported by the authorities and was not affected by the Supreme Court decision in Unger.


The Family Court has been asked to consider the principles for deciding who should be appointed as administrator of an estate where the deceased has died intestate and a dispute has arisen in relation to that appointment.

Eric Sidney King died intestate survived by two children, Stephen and Philip who pursuant to the Intestacy Rules (22(1) Non Contentious Probate Rules 1987) had an equal entitlement to a grant to administer his estate. A grant had been issued to Stephen but Philip had challenged the decision.

The High Court looked at the case on appeal with Mr David Rees KC (sitting as Deputy Judge of the High Court) tasked with deciding whether to appoint Philip or Steven as administrator or pass over both claims and appoint an independent professional administrator.

The judge was clear that Philip was not a suitable appointment. He said that he did not consider Philip to be “capable of undertaking the task in a proportionate or constructive manner” and that whilst he was “no doubt a clever man” he had “no ability to discriminate between the important and the unimportant, the relevant and the irrelevant, or between the good point and the bad”.

He said that the main disadvantage of appointing an independent administrator over Stephen would be the increased costs incurred in appointing an independent professional and the speed at which they would be able to administer the estate. However, the advantage would be to take the administration of the estate out of the hands of either family branch reducing the potential for contentious litigation. Taking both sides into account, the judge concluded that irrespective of the possible cost saving in appointing Stephen the appointment of an independent professional administrator would be in the best interests of the estate and the beneficiaries as a whole.


Two linked claims concerning a dispute about who had the right to possession of a body and funeral arrangements have been considered by the High Court.

The deceased’s daughter, Ms Otitoju, had submitted to the court that the deceased had died intestate and obtained an injunction restraining the deceased’s partner, Ms Onwordi, from taking possession of his body and enabling Ms Otitoju to remove the body for the purpose of the funeral.

Ms Onwordi applied to set aside the order and told the court that the deceased had made a Will dated 15 July 2023. This Will was witnessed by Ms Onword’s daughter who was also an executor (along with a third party). The Will had been signed by way of the deceased’s fingerprint as opposed to his signature.

Ms Asesanya also made a claim seeking an order to prevent Ms Otitoju from taking possession of the body and declaring that the executors were entitled to possession for the purpose of the funeral.

Mr Justice Matthews noted that the evidence created some difficulty for the court because no application was made to cross examine any of the witnesses, and there was therefore a limit on the court’s ability to disbelieve any of the evidence before it.

He said that the validity of the Will was key to the question of whether Ms Adesanya was an executor of the estate. He said that because the will appeared to have been properly executed in accordance with section 9 of the Wills Act 1937 (it being established law that a testator may comply with that requirement by affixing a fingerprint), the presumption of formal validity applied. Likewise, in circumstances where the will was rational on its face the presumption of capacity applied and because the will appeared to have been professionally drafted by a firm of solicitors and a representative of that firm had visited the deceased on the day it was executed there was also sufficient evidence of knowledge and approval by the deceased in making the will.

Mr Justice Matthews said that there is no right of ownership in a dead body but that at common law there is a duty falling to the personal representative of the deceased to arrange for its proper disposal. Consequently, the person who should take possession of the body and have charge of making the funeral arrangements for the deceased was Ms Adesanya and her co-executor who had been validly appointed under the will.

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