Wills & Probate Case Studies

Interpreting a Will

We recently acted in the administration of an estate where the deceased left everything to his local church. Unfortunately, the will did not clarify which particular church should receive the gift.

The gift was worth nearly £400,000.

Two different churches fell within the vicinity of the parish. The will had been prepared nearly 30 years earlier. The original will file was not available.

Partner Tony Illsley acted as a professional executor. Enquiries were made and witness evidence obtained from local parishioners confirming that the deceased had attended both churches over the years. The investigation included contacting the Diocese of Birmingham.  Both churches made a claim as a beneficiary.

Section 24 of the Wills Act 1837 provides assistance with the interpretation of the terms of a will. Normally, when clarifying the assets in an estate the will speaks from the date of death. This is subject to any contrary intention in the will. However, this presumption does not apply to the identity of beneficiaries. This means that the will speaks from the date of the will and not the date of death.

Applying this construction to the terms of the will, and reviewing the evidence obtained, it quickly became clear that the deceased only attending a single church at the date of the will and this church should be the receiving beneficiary. The deceased had only attended (or had any known contact with) the second church decades later.

This was agreed by the second church who withdrew the claim allowing the executors to distribute the estate to the correct church.

DNA testing

The deceased had not made a will and his estate would therefore be distributed as an intestacy.

Being unmarried at the date of death, the intestacy provisions provide for the whole estate to pass to any children equally, or if they have predeceased, to grandchildren.

We were instructed by the daughter of the deceased who expected to inherit the whole estate as her brother had died many years earlier as a teenager while still at school.

Further investigation revealed that the son had fathered a child as a teenager. We instructed an enquiry agent to trace the mother, and eventually, we were able to trace the daughter. Our client had never had any contact with her niece.

On intestacy a half share of the estate would now pass to our client and one half would pass on statutory trusts down the bloodline to the granddaughter.

In addition to receiving half of the estate of her late father that she never knew, the beneficiary also gained an aunt she had previously never met.

 

 

Personal Injury Case Studies

Our team of personal injury solicitors have a wealth of experience in this field and have settled an assortment of claims on behalf of our clients.

International Travel Litigation Group Claims

This claim, which was conducted by Mr David Dickie, settled for £9,000, shortly before a trial in Stoke on Trent County Court.

Whilst on a package holiday with First Choice PLC in Fuerteventura, our client was walking off an entertainment bar stage at a holiday resort when he slipped on some liquid on the floor and fell.

He sustained a comminuted fracture of his leg and fracture of his arm that required surgical treatment to obtain union.

The claim was defended on the basis that the holiday company claimed that they had in place an adequate system of inspection and cleaning of the floor, evidenced by the fact that there had been no previous similar accidents, and the flooring surface was suitable for the area in question and complied with local legislation.

We obtained witness statements from seven people on the same holiday that the Defendant was not operating a reasonable system of collecting empty glasses and clearing up floor spillages because they did not have enough staff on the night, that the tables were congested and did not allow proper access and egress from the stage, and that there was not suitable non- slip flooring.

Motorcycle Injuries

Our client purchased a second hand motorcycle from a motorcycle shop. The motorcycle had an MOT only the previous day. When she took the motorcycle out to use it for the first time the following day, she lost control and hit an oncoming vehicle sustaining very serious injuries necessitating an amputation of a leg above the knee. When Rutherfords were instructed we discovered that the motorcycle shop had closed down and the company had been struck off the Companies Register. An application was made to place the company back on the Register and then proceedings were commenced against both the company who sold the bike and the organisation which carried out the MOT. Those proceedings were eventually settled on the first day of the trial with our client receiving £200,000 in compensation.

Car Accident

Three friends had spent the day together drinking and decided that they should all go into town for a party. One of the friends offered to drive, despite the fact that they all were quite drunk. Unfortunately, they were involved in a serious road traffic accident and the driver had no car insurance. A claim was issued against the driver and the Motor Insurers’ Bureau (MIB).

This claim was defended in full by the MIB raising a technical defence that a claim could not be made against the MIB if the claimant ‘knew or ought reasonably to have known’ that the driver had no insurance. This went to a final hearing which was resolved in our client’s favour and they received significant compensation.

Work Accident

A woman had an accident at work when she fell down the stairs tripping on a piece of loose carpet. She approached the insurers herself and obtained an offer of £2,000. She then came to see Rutherfords a few months before the case was ‘Statute Barred’ (a limited period of three years is allowed to bring a claim) asking whether she should accept the offer. Our client had ongoing problems caused by the injury and was advised to reject the offer. The case was settled with compensation exceeding £17,000.

Insurance Dispute

A man had gone out for the evening in his car with a friend as a passenger. Our client decided not to drive home on the basis that he had had too much to drink. His friend then said that he was sober and would be insured to drive our client’s car home on his own insurance. They were involved in an accident which was the friend’s fault. The friend was not insured to drive our client’s car. Rutherfords nonetheless obtained compensation exceeding £27,000.

Care Concerns

A care home resident with a history of epilepsy died following an epileptic fit. The family of the deceased were concerned as to the level of care which had been provided by the care home and its staff. Rutherfords attended at the Coroner’s Inquest to represent the interest of the family and on the second day of the Inquest the Coroner decided to adjourn his inquiry and submit a report to the Director of Public Prosecutions for a possible criminal charge in relation to the care provided to the deceased. We also obtained compensation for the family of the deceased.

Tripping Accident

Our elderly client was walking from her home to the local shops when she tripped and fell suffering a fracture of the hip. Prior to the accident our client, although in her 80s, was fit and active but the accident severely restricted her mobility and independence. Proceedings were commenced against the relevant local authority and the building company who had recently carried out roadworks at the site of her accident. The case was concluded at an early stage with damages exceeding £12,000.

Mesothelioma Claim

During the course of our client’s employment with the Defendant he was continuously exposed to significant quantities of blue and white asbestos dust. A report was obtained from a Consultant Physician, Professor Sherwood Burge, who confirmed that the deceased had developed a histologically proven pleural mesothelioma and asbestos related pleural plaques in the left lung. The expert concluded that, on the balance of probabilities, the deceased had developed a malignant pleural mesothelioma from his employment at Foseco, which was causing weight loss, pain and breathlessness and was likely to kill him within twelve months.

The Defendant’s insurers confirmed that breach of duty, namely exposing the deceased to asbestos, would not be contested but the issues of causation remained in dispute. The Defendant tried to buy the claim off cheaply by offering to settle for £80,000 but this was rejected. An interim payment of £30,000 was obtained from them.

The Defendant instructed their own Chest Physician and Consultant Urologist, who argued that there was a high risk of the deceased’s kidney tumour recurring and causing death. Our client obtained his own report form a Consultant Urologist, which suggested that the risk was much smaller and therefore his pre-accident life expectancy was much higher and hence the total value of his claim. The parties exchanged their expert evidence and witness statements.

Our client then tragically died. A copy of the post mortem report was obtained which supported the Defendant’s contention that the deceased suffered from chronic obstructive pulmonary disease, which would also reduce his life expectancy. The various experts eventually completed joint statements and agreed that the deceased had moderate emphysema and that on the basis of lung function tests carried out on the deceased during his lifetime, there was no evidence of impairment by the emphysema. Eventually a settlement of £154,000 was negotiated.

Employment Liability Claim

We acted for our client who sustained very serious injuries whilst at work in 2003. He is an electrical contractor who was working for his employers on a hydraulic lift. That lift did not have appropriate safety mechanisms and, whilst he was using the lift, it toppled causing him to sustain serious injuries to his elbow and wrist which were almost serious enough to require an amputation.

Initially there were arguments about the liability for the accident as his employers denied liability alleging that our client should not have used the lift in the way he did and if he had used the lift sensibly, using his experience, the accident would have not occurred.

Proceedings were issued and initially liability disputed but eventually liability was admitted with an element of contributed negligence.

As liability was admitted we were able to obtain interim payment to our client to assist him financially whilst the case was being negotiated of £60,000.

The value of our client’s damages were highly disputed but eventually an offer was made at £80,000. However, we contended that our client had sustained injuries so serious that this meant he was unemployable and would require significant future care and these are the areas of dispute. Eventually the case was unresolved within 28 days of trial with damages exceeding £500,000.

Litigation, Disputes and Debt Recovery Case Studies

Finance Company Dispute

We acted for a client who purchased a new high spec BMW. Our client obtained hire purchase finance (HP) to purchase this vehicle. Unfortunately, whilst the client was on holiday, a member of their family drove the vehicle (without our client’s consent) and was stopped by the Police. The Police impounded the vehicle and refused to return it to the client. In addition when the finance company discovered that this occurred they served a default notice under the Consumer Credit Act potentially entitling them to repossess the vehicle and sell it at auction. Our client was unable to resolve the situation himself and sought our advice.

Within five days of instructions we were able to convince the Police to allow our client (not the finance company) to recover the vehicle to the great annoyance of the finance company! In a further fourteen days the finance company confirmed that they would not proceed on their default notice and our client was therefore able to recover the vehicle and avoid the finance company repossessing the vehicle.

We did advise our client that we would have been able to achieve this result through the issue of court proceedings if the vehicle had been repossessed by the finance company but fortunately we were able to resolve the matter very swiftly to avoid the necessity for litigation. This has saved our client a considerable sum of money and we have allowed him to recover his vehicle.

Repossessed Vehicle

Our client had purchased a vehicle under a hire purchase agreement and had been paying finance on that vehicle for in excess of two thirds of the finance period. We advised the client that his vehicle was therefore a ‘protected goods’ under the Consumer Credit Act 1975.

Unfortunately, the client fell into arrears with his payments and the finance company obtained a Possession Order to recover the vehicle and then proceeded to recover the vehicle but before they had obtained a formal warrant from the court. We said that this was in breach of the Regulations.

Proceedings were issued against the finance company. These became extremely protracted and the matter was listed for a two day trial. Fortunately the finance company did, in the end, capitulate and the case was settled on the morning of the trial with our client recovering damages and costs.

Defective Vehicle

We were contacted by our client who had purchased a second hand vehicle from a car dealership after he spotted the Defendant’s advertisement for the vehicle on eBay. Unfortunately there were many defects with the vehicle and we advised our client that he was entitled to rescind the contract and recover all of his monies.

It was necessary to issue proceedings and those proceedings were initially defended but then Judgement was obtained as the Defendant failed to comply properly with the court timetable.

We then issued a High Court Writ of Fieri Facias and instructed a High Court Enforcement Officer to attend at the Defendant’s premises to recover the damages awarded by the court. The High Court Enforcement Officer expressed his intention to repossess a number of vehicles on the forecourt of the Defendant’s dealership and, not surprisingly, the Defendant paid the full amount outstanding! Our client was able to recover the loss of his vehicle, interest and costs.