Category: Articles

Keeping it in the Family – Are Family Investment Companies the New Trusts?

Posted on by Wellers

Family Investment Companies (FICs) have been used as part of succession planning since changes to trust taxation were brought in by the Finance Act 2006.   Their use is likely to rise due to the Inheritance Tax net widening as a result of the latest budget, particularly from April 2027 when pension pots will be included in estates for Inheritance Tax purposes.

What is a Family Investment Company (FIC)?

An FIC is simply a company that has been established with the specific purpose of meeting the needs of a single family.  It is generally created to hold investments for the family.

The investments within the company would typically include equities and/or property.

How can a FIC be used in Estate Planning?

Estate planning is not just about saving Inheritance Tax. Although this is a key objective, it is also about maintaining and protecting family wealth.

A company is a structure that enables ownership to be separated.  Ownership is with the Shareholders but the day-to-day management and control of the business is with the Directors.  Using a company enables a family to pass wealth down through generations without giving up control of how the wealth is managed.

Capital is also not easily extracted, which helps ensure it is preserved for future generations.  The constitution of a FIC can also help protect against the impact of divorce by encouraging the use of marital agreements and by controlling the ownership of shares.

Inheritance Tax Saving – 3 Key Benefits:-

  • The reduction of the estate of the founders of the FIC.   They will make a gift on the formation of the company, by either passing shares or cash for the subscription of shares to children/grandchildren.  Sometimes cash is also gifted to a family trust, which will then subscribe for shares. These initial gifts save Inheritance Tax completely if the donor then survives 7 years;

  • To the extent shares are held by family members and not the founders, the profits generated by the FIC will be outside the founders’ estate, saving further Inheritance Tax;

  • A FIC is not within the relevant property regime so is not subject to 10 year anniversary charges of 6% like a discretionary trust would be, or subject to exit charges.

Discretionary Trust vs FICs

 Discretionary TrustFIC
ControlThe trustees manage and control a discretionary trust and must do so for the benefit of their beneficiariesDirectors control a FIC on a day to day basis and have similar fiduciary duties to trustees, acting in the best interests of the company and its shareholders
Who Can BenefitA key advantage of a discretionary trust is that anyone within the class of beneficiaries can benefit.  A trust can also have a power to add new beneficiariesOnly shareholders can benefit from dividends and capital growth. A company can also employ anyone.
FundingA trust can be funded up to an individual’s available nil rate band (£325,000) but may be otherwise taxed at a lifetime Inheritance Tax rate of 20%Shares can be subscribed for in cash up to any value without tax charges.  If a FIC is established, shares should be subscribed for at their market rate to avoid tax charges
Tax on IncomeTrusts pay income tax at 45% or 39.5% on dividend incomeFICs pay corporation tax at 25% or 0% on dividend income
Tax on GainsTrusts pay capital gains tax at 24%.  Annual exemption is £3,000FICs have no annual exemption and pay corporation tax on capital gains at 25%
Distributions of IncomeA beneficiary receives income with a tax credit at 45% which can be reclaimed if the beneficiary is a lower rate tax payerIncome is paid in the form of dividends from post-tax profits and taxed at the individual’s appropriate dividend rate.  An annual exemption of £500 is available
Distributions of CapitalCapital distributed from a relevant property trust may trigger an exit charge but is not taxable on the beneficiaryCapital is not easily distributed to shareholders.  Any profit element will give rise to either an income tax charge or a capital gains tax charge
Inheritance TaxA trust will pay tax on every 10 year anniversary at a rate of 6% on the market value of all assets above the nil rate bandA FIC does not pay inheritance tax but a shareholder will pay inheritance tax on the value of shares within their estate – this value may be discounted to reflect a minority interest
PrivacyWhilst all trusts now have to be registered with HMRC, the register is not a public documentCompanies have to be registered at Companies House and details of shareholders will be available.  Company’s articles of association are public

Trusts have always been a traditional feature of estate planning, however as many of the tax advantages will survive the recent tax changes, FICs are becoming increasingly popular as an alternative to trusts.

In some ways trusts and FICs are similar.  For example, they are both essentially set up for the management of assets for the benefit of the underlying beneficiaries and to preserve the family wealth. 

Trusts still certainly have a place in estate planning, and have perhaps always been the default position when wanting to gift assets whilst also retaining an element of control.  For the higher net valued individuals who wish to gift significant values and where perhaps flexibility and family involvement are priorities as well as investment growth, a FIC may be the better option.  A combination of the two can also provide for an effective structure.  For example, the addition of a discretionary family trust within the FIC structure could offer more protection of capital assets, particularly in the event of divorce.

Ultimately, as with any structure there are pitfalls, nuances and anti-avoidance rules to consider.  Setting up a FIC is not a one size fits all exercise.  It is a bespoke structure and multi-disciplinary advice should be sought to ensure it is appropriate to meet your family’s needs.

Here at Wellers we can help. Please contact us on 020 7481 2422 or email enquiries@wellerslawgroup.com

Protecting Your Property and Legacy: Lessons from Standish v Standish for Unmarried Couples

Posted on by Daniela Koceva

If you’re in a long-term relationship but not married, you might assume that the law will protect you and your partner in the same way it protects spouses. Unfortunately, that’s not the case. The recent Supreme Court decision in Standish v Standish reinforces a crucial message: unless your intentions are clear and legally documented, you may be left with far less than you expected—whether after a breakup or the death of a partner.

In Standish v Standish, a husband had transferred substantial wealth into his wife’s name during their marriage, largely for tax planning and estate purposes. When they later divorced, the wife claimed that the assets had become shared marital property. But the court disagreed. It found that the money had been kept separate, earmarked for their children, and never treated as “family money.” The takeaway? Even if an asset is initially yours but then transferred in your partner’s name, it doesn’t automatically mean it belongs to both of you—and vice versa.

So what does this mean for unmarried couples?

1. Legal ownership doesn’t tell the whole story

The court in Standish confirmed that what matters is the couple’s shared intention, not just whose name is on the title or account. If you buy a property together or contribute financially (or even through unpaid work like home improvements or childcare), but don’t formalise your agreement, you may struggle to claim your fair share later.

2. Make a Declaration of Trust

When buying a property, especially if you’re contributing unequally to the deposit or mortgage, a Declaration of Trust is essential. This document clearly states who owns what share and how the proceeds will be split if the property is sold. Without it, courts must rely on indirect evidence of your intentions, which is often unclear or disputed.

3. Write a cohabitation agreement

This legal agreement can set out who pays what, who owns which assets, and what happens if you split up. It’s especially important if one partner moves into a home owned by the other, or if one of you is financially dependent on the other.

4. Don’t assume you’ll inherit

Unmarried partners do not automatically inherit anything if the other dies without a will. If you want your partner to receive your share of the home, savings, or personal possessions, you must make a valid will. Without it, your estate will pass to your closest blood relatives—even if your partner lived with you for decades.

5. Plan for the future—now

Standish v Standish makes one thing very clear: good intentions aren’t enough. If you want to protect yourself and your partner, take practical legal steps now. That means making wills, declaring ownership shares, and seeking advice on how best to secure your position—whether for a shared life or an unforeseen end to it.

At its heart, this case is a reminder: if you want to be treated as a couple in the eyes of the law, you must plan like one.

Here at Wellers we can help – Please contact Daniela on 020 8290 7979 or email enquiries@wellerslawgroup.com

ATTENTION LANDLORDS- Changes with the Upcoming Renters’ Rights Bill

Posted on by Priyanka Kumar

As housing law continues to evolve, the proposed Renters’ Rights Bill is expected to come into effect later this year or in early 2026 and set to bring significant changes to the eviction process in the private rental sector. These reforms aim to strengthen tenant protections but also introduce new challenges for landlords seeking to regain possession of their properties. Understanding these changes is crucial for landlords, tenants, and solicitors.

Background: Eviction Under Current Law

In England and Wales, landlords commonly use two legal routes to evict tenants:

  • Section 21 Notices: Often called “no-fault” evictions, Section 21 allows landlords to regain possession without needing to provide a reason, provided the fixed term of the tenancy has ended or a periodic tenancy exists.
  • Section 8 Notices: Used when landlords allege specific breaches of the tenancy agreement, such as rent arrears or damage to the property. This route requires proving fault on the tenant’s part.

Both procedures often are dealt with at court hearings if tenants contest the eviction, with the landlord bearing the burden of following strict procedural rules.

What Does the Upcoming Renters’ Rights Bill Propose?

The Renters’ Rights Bill seeks to overhaul eviction processes to offer greater security to tenants and curb what some perceive as unfair evictions. The key proposed changes impacting landlords include:

1. Abolition or Reform of Section 21 “No-Fault” Evictions

  • One of the most anticipated reforms is the removal or significant limitation of Section 21 evictions. Under the new bill:
  • Landlords may no longer be able to evict tenants without demonstrating mandatory or discretionary grounds to do so.
  • Tenancies could become more secure, potentially transitioning into indefinite agreements unless there is a breach by the tenant.
  • This change would mean landlords must rely on fault-based grounds—primarily through Section 8 proceedings—to regain possession.

2. Stricter Grounds for Section 8 Evictions

The bill proposes to tighten the requirements for Section 8 notices by:

  • Narrowing the acceptable grounds for eviction.
  • Raising the evidential standards landlords must meet.
  • Potentially extending notice periods to provide tenants more time to respond or rectify issues.
  • This would make fault-based evictions more procedurally complex and lengthier, increasing the risk and legal cost for landlords.

3. Enhanced Tenant Protections During Proceedings

The legislation aims to improve tenants’ rights during eviction cases, including:

  • Improved access to legal advice.
  • Introduction of pre-action protocols requiring landlords to engage in dispute resolution efforts before commencing court proceedings.
  • Such measures could delay or deter eviction actions, placing additional burdens on landlords.

So What Challenges Will Landlords Will Face?

The effect of these changes will create several challenges including:

  • Increased Difficulty in Regaining Possession: Without Section 21 as a straightforward tool, landlords will face longer and more uncertain eviction processes.
  • Higher Costs: More complex procedures and extended timelines will increase legal and administrative costs.
  • Greater Risk of Protracted Disputes: Enhanced tenant rights and requirements for alternative dispute resolution may prolong disagreements.

What Advice Will Solicitors Give to Landlords?

Solicitors specialising in landlord-tenant law are likely to advise landlords to:

  • Maintain Full Documentation: Keeping detailed records of rent payments, property condition reports, and communications is essential to support any fault-based eviction claim.
  • Engage Early with Tenants: Proactive communication and attempts to resolve disputes before court can help comply with pre-action protocols and avoid costly litigation.

What further possible legislative developments could happen?

  • Introduction of indefinite or longer-term tenancy agreements, replacing fixed-term leases.
  • Mandatory pre-action protocols, requiring landlords to make genuine efforts to resolve disputes before applying to the court.
  • Enhanced enforcement powers for regulatory bodies overseeing housing standards and tenancy disputes.
  • Potential changes to notice periods, making them longer and more tenant friendly.
  • Increased penalties for landlords who fail to comply with new legal requirements, such as deposit protection, gas and EPC certification,  or property safety standards.

Conclusion

The upcoming Renters’ Rights Bill signals a transformative shift in the landlord-tenant relationship, prioritising tenant security and fair treatment. While this reflects positive social goals, it introduces substantive challenges for landlords seeking to manage and regain control of their properties. Navigating this new landscape will require careful legal guidance, thorough preparation, and a willingness to engage constructively with tenants.

Here at Wellers, we can help ensure compliance with evolving regulations and to protect your interests in an increasingly tenant-friendly legal environment.

Do not hesitate to contact Priyanka Kumar on 01732 446367 or Jonathan Tyler on 01732 446361 or email enquiries@wellerslawgroup.com

Fraudulent Calumny in Contested Probate: A Contentious Probate Solicitor’s Guide

Posted on by Krishna Patel

Fraudulent calumny is a lesser known but powerful ground for challenging a will in contested probate disputes. It arises when one person deliberately poisons the testator’s mind against another potential beneficiary by making false and malicious allegations about their character. Unlike undue influence, fraudulent calumny does not involve coercion but instead relies on deception to manipulate the testator’s decision-making process.

For those facing a potential inheritance dispute, understanding fraudulent calumny is crucial in protecting testamentary freedom and ensuring that a will reflects the true wishes of the deceased.

What Is Fraudulent Calumny?

Fraudulent calumny is a type of fraud that can render a will invalid. It was defined in Re Edwards [2007] WTLR 1387, where Lewison J set out its key elements:

  1. False statements – Someone made untrue claims about you to the testator.
  2. Dishonesty or recklessness – They knew these claims were false or didn’t care whether they were true.
  3. Influence on the testator – The false statements persuade the testator to alter their will to reduce or remove your inheritance.
  4. Causation – The will was changed only because of these lies.

The Importance of Dishonesty

A key hurdle in fraudulent calumny cases is proving dishonesty. The Supreme Court, in Royal Brunei Airlines Sdn Bhd v Tan and Barlow Clowes International Ltd v Eurotrust International Ltd, clarified that dishonesty is judged using an objective test:

“The fact-finding tribunal must first ascertain (subjectively) the individual’s actual state of knowledge or belief. The question of whether the conduct was honest or dishonest is then determined by applying the (objective) standards of ordinary decent people.”

This means that even if the defendant sincerely believed their statements, a claim for fraudulent calumny will fail if they were not acting dishonestly. This was demonstrated in Re Boyes, where a daughter falsely convinced her father that her brothers were untrustworthy, but since she genuinely believed it to be true, the will was upheld.

How Fraudulent Calumny Differs from Undue Influence

Fraudulent calumny and undue influence are often confused but are legally distinct:

Fraudulent CalumnyUndue Influence
Based on lies about another beneficiaryBased on pressure or coercion
The testator believes the lies and changes their willThe testator is forced into changing their will
Requires proof of dishonestyRequires proof of coercion

Recent Case Law on Fraudulent Calumny

Several recent cases illustrate how courts approach fraudulent calumny in contested probate claims:

  1. Whittle v Whittle [2022] EWHC 925 (Ch)

In this case, the testator left almost his entire estate to his daughter, Sonia, while his son, David, received only a few personal items. David alleged that Sonia had falsely accused him of theft and violence, which led their father to disinherit him. The court found:

  • The testator left almost his entire estate to his daughter, Sonia, giving his son, David, only a few personal belongings.
  • David claimed Sonia falsely told their father he was a thief and violent towards women.
  • The court found Sonia had lied to manipulate their father and declared the will invalid.
  • Speakman v Muir [2022]

A son challenged three wills made in quick succession by his elderly father, alleging that his father’s household assistant, Julie, had falsely told him that his son had stolen from him. The court found:

  • A son challenged three wills made by his father, which gradually cut him out of the estate.
  • The father’s household assistant, Julie, had falsely accused him of stealing.
  • The judge found the father was emotionally vulnerable and easily influenced, leading to the wills being set aside.
  • Nesbitt v Nicholson [2023]

The court reiterated the difficulty of proving fraudulent calumny, confirming that if the defendant genuinely believes what they are saying even if objectively false the claim will fail. This highlights the high burden of proof required to succeed.

These cases highlight that it is not enough to simply express negative opinions about a potential beneficiary, the allegations must be false and the defendant must have acted with dishonesty or reckless disregard for the truth.

How to prove Fraudulent Calumny

A claim for fraudulent calumny requires strong evidence, including:

  • Witness statements: Did anyone hear the false allegations being made?
  • Legal notes: A solicitor’s records may reveal concerns about influence.
  • Previous wills: Showing an unexpected change in inheritance.
  • Medical reports: If the testator was vulnerable, they may have been more easily misled.

Defending Against Fraudulent Calumny Claims

If a will is challenged on this ground, the defendant may argue:

  • The statements were true or made in good faith
  • The testator was aware of all facts and made a rational decision
  • The testator had independent legal advice before making the will

Fraudulent calumny remains a complex and high-risk ground for challenging a will, requiring clear evidence of dishonesty and causation. While recent case law highlights the potential success of such claims, the burden of proof remains high.

For an initial consultation, contact Krishna Patel on 01732 446371 or email krishna.patel@wellerslawgroup.com

Lessons from the Kids Company Judgment: Strengthening Charity Governance and Financial Oversight 

Posted on by Katherine Pipe

The High Court’s recent decision on the Charity Commission’s inquiry into Kids Company has important implications for all charity trustees. The judgment confirms that even well-intentioned, passionate leadership is not enough to protect a charity from serious governance failures and is a good moment to reflect on how we got here. This article sets out what happened in the Kids Company case, what the Commission and the courts found, and most importantly, what other charities can learn.

What Happened at Kids Company?

Kids Company was established in 1998 with the purpose of preservation of health for children in need of counselling, support and therapeutic use of the arts, by reason of their social or family circumstances. It received millions of pounds in public funding, including repeated government grants. In August 2015, Kids Company closed abruptly with many employees being made redundant triggering widespread concern and scrutiny from the media, government and the public.

The Charity Commission launched a statutory inquiry shortly after the closure, examining the charity’s governance, risk management, safeguarding, and financial practices. Its final report, published in February 2022, found significant mismanagement of the charity’s finances, particularly:
– Persistent cashflow crises
– Over-reliance on public funding
– Failure to build reserves or plan for financial shocks
– Weak financial oversight by the board

Crucially, the Commission did not find any dishonesty, bad faith, or personal gain by trustees or staff.

The Charity Commission’s statutory inquiry was paused when the Official Receiver initiated proceedings against all trustees who had been in office at or shortly before Kids Company’s collapse, along with the CEO. The Official Receiver sought to disqualify them under section 6 of the Company Directors Disqualification Act 1986, which permits disqualification where a person is found to have engaged in unfit conduct while serving as a director of an insolvent company. The Official Receiver argued that the trustees and CEO were unfit because they had caused or allowed the charity to operate an unsustainable business model.

However, the High Court dismissed the claims. It found that the trustees and CEO were not unfit, but had made honest decisions in good faith, under difficult circumstances, and with the charity’s interests at heart. The court emphasised that the trustees had sought and followed professional advice, including financial guidance, and viewed this as evidence of responsible governance—even though the charity ultimately failed.


Several former trustees challenged the Commission’s statutory inquiry findings in the High Court by way of a judicial review. In May 2025, the Court upheld the Commission’s core conclusions, stating they were based on “ample evidence.” The Court confirmed that the Commission had not predetermined its findings and had acted within its statutory remit. While the Court identified two paragraphs in the statutory inquiry report that contained important errors, it found the Commission’s overall findings to be rational and reasonable.

Key Lessons for Trustees and Charity Leaders

The Kids Company case offers timely and vital governance lessons for all charities, regardless of size or purpose. Below are four key takeaways to help trustees fulfil their duties and protect their charities from similar risks:

1. Build Financial Resilience

The Charity Commission characterised Kids Company’s financial situation as a ‘hand-to-mouth’ existence. It found that by not prioritising the creation of adequate reserves, the trustees neglected their duty of care to both employees and donors. This highlights a crucial lesson for trustees: prioritising realistic budgeting, accurate financial forecasting, and establishing clear reserve policies is essential to protect your charity’s long-term sustainability and fulfil your duties as trustees.

2. Governance must evolve with Growth

The Charity Commission found that Kids Company maintained informal, founder-led governance structures even as it grew into a large, national charity, which may have contributed to its ultimate demise. Trustees must regularly review their governance structures to reflect changes in the charity’s scale, complexity, and risk profile. They should also be aware that founder-led leadership by a charismatic individual can obscure risks embedded in established ways of working. While founders bring passion and vision, it’s important to balance their influence with robust governance structures to ensure ongoing challenge and oversight.

3. Document Risk and Decision-Making

There were insufficient records for the Charity Commission to make findings in some areas of the statutory inquiry. Clear records of board discussions, risk assessments, and financial decisions are critical, not just for compliance, but to demonstrate accountability in the face of scrutiny. This is particularly important where decisions involve significant risk.

4. Take and Record Professional Advice

The High Court recognised that Kids Company’s trustees had sought and followed professional advice, including on financial matters. This was a significant factor in the Court’s decision not to disqualify them, despite the charity’s failure. Trustees should not hesitate to seek expert guidance (whether legal, financial, or operational) when navigating complex or high-risk decisions. Importantly, they should also ensure that this advice, and how it informed board decisions, is clearly documented. Doing so not only supports sound governance but also provides protection in the event of scrutiny.

How We Help Charities Stay Compliant and Resilient

As specialist charity lawyers, we help charities strengthen governance, manage risk, and remain compliant under increasing scrutiny from regulators, funders, and the public.

We support charities with:
– Governance health checks and structural reviews
– Trustee training on legal duties and best practice
– Financial oversight and reserves strategy guidance
– Risk management and safeguarding policies
– Support during Charity Commission inquiries or serious incidents
– Constitutional amendments and governance advice


Whether your charity is scaling up, managing public funds, or navigating internal changes, we can help you build strong, resilient systems for long-term success.

Contact Kate Pipe at kate.pipe@wellerslawgroup.com or call 020 7481 2422

Why Volunteer Agreements Are Crucial for Charity Protection and Success

Posted on by Katherine Pipe

Volunteers play a vital and often irreplaceable role in the charity sector. Many organisations simply couldn’t deliver their services or achieve their objects without them. However, although volunteers give their time freely, it’s still important for charities to set clear expectations through a thoughtfully prepared volunteer agreement.

Too often, charities see volunteer agreements as an administrative extra — but in reality, they are an important tool for managing risk, protecting the charity, and supporting a positive and professional experience for volunteers.

Why Volunteer Agreements Matter

A volunteer agreement helps to define the boundaries of the relationship between the charity and the volunteer. It sets out what is expected from the volunteer and what they can expect from the charity in return. More importantly, it gives the charity a framework to rely on if things don’t go as planned. From safeguarding concerns to reputational issues, a properly structured volunteer agreement can help reduce the risk of liability, clarify responsibilities, and ensure consistency across your volunteer programme

Common Risks Without an Agreement

Here are some examples of where problems can arise when a charity does not have adequate volunteer agreements in place:

1. Safeguarding and Misconduct

A volunteer is working with vulnerable beneficiaries but has not completed safeguarding training or undergone background checks. If concerns arise, the charity may struggle to show it took reasonable steps to prevent harm.

➡ A volunteer agreement can require volunteers to comply with safeguarding policies and complete relevant training, helping to demonstrate the charity’s proactive approach.

2. Health & Safety Incidents

A volunteer is injured while carrying out a task they weren’t properly trained or equipped for. There is no record of risk assessments or role-specific guidance being provided.

➡ An agreement can set out the charity’s approach to health and safety and reference any induction, training, or supervision that volunteers should receive.

3. Unauthorised Media Statements

A volunteer posts on social media or speaks to the press, giving the impression they are representing the charity’s official view.

➡ A volunteer agreement can stipulate that volunteers are not authorised to speak on behalf of the charity, helping to minimise the risk of unauthorised media statements.

4. Disputes Over Expenses

A volunteer incurs costs and expects reimbursement, but the charity has no policy in place. The result can be confusion or disappointment.

➡ Agreements can clarify what expenses will or won’t be reimbursed, helping to prevent misunderstandings or disputes.

What Should a Volunteer Agreement Include?

A good volunteer agreement should still be clear, consistent, and reflect your charity’s policies and practices. It should typically include:

  • A description of the volunteer’s role and responsibilities
  • The expected time commitment and any agreed hours or availability
  • Details of supervision, support, or training provided
  • Reference to key charity policies which the volunteer needs to abide by (e.g. safeguarding, confidentiality, data protection)
  • A clause covering insurance, including what cover (if any) is in place for volunteers
  • Information on speaking to the media and use of social media while representing the charity
  • A clear expenses policy
  • Health and safety information, including duties of care and risk management
  • A process for resolving issues or ending the volunteering arrangement

Final Thoughts

Volunteer agreements are essential tools for managing risk, while also fostering a positive and supportive environment for your volunteers. By setting expectations clearly from the outset, charities can build stronger, safer, and more sustainable relationships with the people who give their time and energy so generously.

For trustees and senior staff, reviewing your current volunteer agreement (or implementing one if it doesn’t exist) is a small but crucial step in safeguarding your charity’s operations and reputation.

If your charity needs assistance with drafting or updating its volunteer agreement, or would like a review of your volunteer management policies, please contact our charity experts Peter Spencer at Peter.Spencer@wellerslawgroup.com and Kate Pipe at Kate.Pipe@wellerslawgroup.com.

Inheritance Disputes and Market Volatility: Market Uncertainty is the New Normal

Posted on by Krishna Patel

Inheritance Disputes and Market Volatility: Market Uncertainty is the New Normal

Economic uncertainty affects more than just your portfolio, it can lead to serious family disputes over inheritance. These types of disputes often fall under contentious probate, where disagreements arise over the administration or distribution of an estate. When a loved one dies leaving shares, investments, or business interests, sudden market changes can distort the value of an estate.

This article explores why market volatility matters in probate, how events like Trump’s 2025 tariff proposals impact estate values, and how families can protect themselves.

Why do stock market fluctuations matter in probate?

When a Will divides an estate between fixed and residuary beneficiaries, the value of shares at the date of death or sale can dramatically affect outcomes. For example:

  • If shares drop after death but before sale, the total estate value may shrink
  • If a fixed legacy is paid first, residuary beneficiaries may receive less or nothing

Disputes often arise when executors delay selling shares, beneficiaries allege poor decision-making and family members believe they’ve been treated unfairly.

Trump’s tariff proposals

More recently you will have seen Donald Trump proposed 10% tariffs on all imports and 25% duties on UK steel and car exports. This news caused a sharp drop in some FTSE-listed manufacturing and export stocks. This is a prime example of how global politics can impact local estates. If a deceased person held stocks in affected companies, their value may have plunged, creating tensions between beneficiaries.

Executors can face accusations of negligence if they wait too long to act or fail to seek professional advice. Yet they also risk criticism for selling too early. It’s a fine balance.

The Broader Economic Impact on Probate

Please be aware that market volatility is not limited to breaking news stories. Economic downturns, inflation, interest rate changes, and sector instability all affect estate valuations. This matters most when:

  • The estate includes a large share portfolio
  • The Will lacks guidance on investment strategies
  • There is no professional executor with financial expertise

During recessions or inflation spikes, disputes often arise over timing, valuations, and asset distribution. Estate planning that once made sense may seem outdated or unfair in new economic conditions. This is why it is important to review wills regularly to ensure that they are drafted as best as they can be.

Legal considerations for executors

Executors have many duties, one such duty is fiduciary. They must act in the best interests of all beneficiaries. Of course, volatile markets make this harder. Claims for breach of duty, maladministration, or unfair distribution are increasing.

Particularly common are applications under section 50 of the Administration of Justice Act 1985 to remove executors seen as ineffective or conflicted. Problems arise when:

  • Executors fail to diversify or liquidate high-risk holdings
  • There’s a delay in estate administration
  • Beneficiaries are not kept informed about losses

Practical tips on avoiding disputes

To reduce the risk of contested probate:

  • Ensure valuations are obtained promptly and professionally
  • Consider early liquidation of volatile shares
  • Keep beneficiaries regularly updated
  • Document all decisions and advice taken
  • Use independent advisors for high-value portfolios

Looking Ahead: Market Uncertainty Is the New Normal

Whether triggered by political decisions like Trump’s tariffs, inflation shocks, or global events, market instability is here to stay. That means families and executors must be prepared to act swiftly and transparently.

Get Expert Advice

Preparation, communication, and legal guidance are the best tools to avoid long, costly probate battles. If you’re administering an estate that includes shares or business assets or concerned about how to protect your family’s inheritance, we’re here to help.  With offices across London, Kent, and Surrey, Wellers has a dedicated team of probate and probate dispute solicitors ready to support you.

Contact us at enquiries@wellerslawgroup.com or click here to complete an enquiry form or call us on 01732 457575

Can you enforce a broken promise ?

Posted on by Krishna Patel

A guide to Proprietary Estoppel and Contested Probate

Many people assume that if a promise is not in a will, then there’s nothing they can do but that’s not always true.

Perhaps you have spent years relying on this promise whether by working in a family business, caring for a relative, or investing time and money into a property only to be left with nothing. This issue often arises in contested probate cases where individuals have relied on assurances from a family member or a close friend only to discover that the will or estate distribution does not reflect those promises.

Where does that leave you? In these situations, proprietary estoppel can provide a way to enforce that broken promise, ensuring you aren’t unfairly cut out. If this sounds familiar, you may have a legal right to claim what was promised, legally known as proprietary estoppel.

Proprietary estoppel in probate disputes

Proprietary estoppel allows the courts to enforce promises even if they weren’t formally written down. To establish a successful proprietary estoppel claim, the following elements must be proven:

  1. A clear representation or promise: the deceased gave you an assurance that certain property or inheritance would be received;
  2. Reasonable reliance: you acted in reliance on the promise, believing it to be genuine; and
  3. Detriment: you suffered financial or personal disadvantage based on the promise.

This approach was reinforced in Cleave v Cleave [2024], where the court ruled that promises must be clear enough to justify reliance, and the person claiming estoppel must show real loss if the promise isn’t upheld.

How have courts enforced verbal promises in the past?

Many people have successfully challenged estates based on broken promises. Here’s how the courts have ruled in different situations:

I. Guest v Guest [2022] UKSC 27: A son worked for years on the family farm for little pay, believing he would inherit it. When the father changed his will, the court ruled in the son’s favour, granting a financial remedy to reflect his expectations.

II. Thorner v Major [2009] UKHL 18: A farmer spent decades working on his relative’s farm based on vague assurances. The court ruled that, despite the lack of an explicit promise, the overall context made it clear that he should inherit.

III. Gillett v Holt [2001] Ch 210: An employer made repeated verbal promises to an employee about inheritance. When he later cut the employee out of his will, the court ruled that breaking those assurances was unfair.

IV. Henry v Henry [2010] UKPC 3: A man cared for a family member for decades, believing he would inherit their property. The court upheld his claim but reduced his award because he had also benefitted from the arrangement.

V. Winter v Winter [2023] EWHC: Courts won’t uphold claims based on casual remarks or vague conversations. The promise must be serious enough to justify real reliance.

When might a promise not be enforced?

•Existing agreements: In Horsford v Horsford [2020], the court ruled that a claimant cannot “have two bites of the cherry”. If a partnership or shareholder agreement contradicts the alleged promise, an estoppel claim may be significantly weakened or even struck out.

• Unclear or vague promises: If the assurance was too uncertain, or there’s no real evidence that the deceased intended to transfer ownership, a claim may fail.

• Lack of detriment: If you didn’t suffer a real loss, the courts may decide that the promise should not be enforced.

What if proprietary estoppel is not an option?


Even if proprietary estoppel isn’t the best route, you may still have alternative legal claims, such as:
• The Inheritance (Provision for Family and Dependants) Act 1975: If you were financially dependent on the deceased but left out of the will, you may be entitled to a fair share of the estate.

• Trusts of Land and Appointment of Trustees Act (TOLATA) 1996: If you contributed financially to a property expecting ownership, you may have a claim.

• Challenging the Validity of the Will: If the will was made under undue influence, fraud, or without proper mental capacity, it may be possible to challenge its validity.

What should you do next?

If you believe you were made a promise but have been left out of a will, acting quickly is crucial. Here’s what you can do:

• Identify key witnesses: Who heard the promises? Did the deceased discuss it with anyone else?
• Gather evidence: Are there emails, texts, or documents that support your claim?
• Assess alternative legal routes: Could another type of claim strengthen your case?

Take action today, don’t wait until it’s too late. Don’t let a broken promise leave you with nothing. Get expert advice now. For an initial consultation, contact me, Krishna Patel

Call: 01732 446371

Email: krishna.patel@wellerslawgroup.com

Special Guardianship – looking out for your child’s best interests

Posted on by Diane Flowers

What is Special Guardianship?

There are circumstances when it is decided that it is not in a child’s best interests to live with their parents and the decision is made that they must live with someone else e.g. a grandparent, aunt or uncle.  To help ensure this new living arrangement provides long-term security for the child, the Government introduced The Adoption and Children Act 2002 which created Special Guardianship and Special Guardianship Orders.

Special Guardianship is considered by the court when looking to secure the long-term arrangements for a child living with a person who is not their parent.  Under this arrangement, the individual who will be taking care of the child is known as a Special Guardian. 

An individual will become a Special Guardian when they are granted a Special Guardianship Order by the court.

What is a Special Guardianship Order?

A Special Guardianship Order is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians). 

When a special guardianship order is granted by the court, the Special Guardian will acquire parental responsibility for the child until the child reaches the age of 18. The order does not remove parental responsibility of the parents.

The Special Guardianship order gives the Special Guardian the permission to make day to day decisions for the child and to be the one responsible for making important decisions regarding the long-term care of the child e.g. where the child goes to school.

A special Guardianship order is there to provide long-term stability for the child and enable the Special Guardian to care for the child until the child reaches 18 unless the order is discharged sooner.

An special guardianship order can be varied or discharged by the court.  Some applicants to such an application will  require permission from the court before making the application. The court cannot grant permission unless it is satisfied that there has been a significant change of circumstances since the making of the special guardianship order.

The court may vary a special guardianship order of its own initiative in any family proceedings in which a question arises in relation to the welfare of the child who is the subject of the special guardianship order.

Who can apply for a Special Guardianship Order?

The individual must be eighteen and over and must not be a parent of the child in question. Joint applications may be made.

It is possible to apply for a Special Guardianship Order if:-

  1. You are a guardian of the child;
  2. You are an individual who has been granted a Child Arrangements Order recording that the child is to live with them;
  3. You are a local authority foster parent with whom the child has lived for a period of at least one year immediately before the application for a special guardianship order is lodged with the court;
  4. You are a relative of the child and the child has resided with the you for at least one year immediately before the application for a special guardianship order is lodged with the court;
  5. You are an individual whom the child has lived with for three of the last five years (and the child has not stopped living with you for more than three months before the application for a special guardianship order is lodged with the court);
  6. You are an individual who wishes to be a special guardian for a child in the care of the Local Authority and the Local Authority consents to the application for a special guardianship order to be granted by the court.
  7. You are an individual who has been granted permission by the Court to make an application for a special guardianship order.

Notice to the Local Authority and Assessment Report.

Before an individual applies to the court for a Special Guardianship Order, they must first write to the Local Authority of their intention to proceed with the application.  Notice must be given to the Local Authority three months before the application for a special guardianship order is lodged with the court.  The Local Authority must then carry out an investigation and the results of that investigation must be recorded in an assessment report to be considered by the court along with the application for a Special Guardianship Order.

The Assessment report, produced by the Local Authority, should include information about the child and if possible their wishes and feelings, information about the child’s family, information about the individual looking to be a special guardian, information about the Local Authority producing the report, any input for medical professionals, the implications of making the Special Guardianship Order and recommendation regarding contact with the parents and any other family members.

Under The Adoption and Children Act 2002 support services may be available to Special Guardians.  If the child concerned is a looked after child by a Local Authority then the Local Authority should include in the assessment report an assessment for special guardian support services and examples of those services are:

  • Financial Assistance;
  • Mediation to assist with contact arrangements;
  • Counselling;
  • Access to support groups;
  • Therapeutic services.

If the child concerned is not a looked after child by a Local Authority there is not an automatic entitlement for the Local Authority to include in the assessment report an assessment for special guardianship support services.  A request will need to be made to the Local Authority to carry out an assessment for special guardianship support services.

Making a Special Guardianship Order

Before the Court make a Special Guardianship Order, the court must consider whether if the order were made:

  1. A contact order should also be made with respect to the child and their parents or other members of the birth family; and
  2. Any order under Section 8 of the Children Act 1989 in force with respect to the child should be varied or discharged.

The Court will also need to consider the “welfare checklist” which asks the court to consider the following:-

  1. The ascertainable wishes and feelings of the child (in light of his age and understanding).
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on the child of any change in his circumstances.
  4. .The child’s age, sex, background and any characteristics of his which the court considers relevant.
  5. Any harm which the child has suffered or is at risk of suffering.
  6. How capable each of the child’s parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting his needs.
  7. The range of powers available to the court under the Children Act 1989 in the proceedings in question.

The court will also have regard to what is known as the “no order” principle. This is the principle that the court should make no order unless it considers that doing so, would be better for the child than making no order at all.

If you need any advice, please call us on 020 8464 4242 or email enquiries@wellerslawgroup.com

When a success fee becomes a financial need

Posted on by Sasha Burl

On 18 December 2024, the long-awaited Judgment in Hirachand v Hirachand and another [2024] UKSC 43 was handed down.

By way of a brief background, Navinchandra Dayalal Hirachand (“the Deceased”) died, leaving a widow (“the widow”), a daughter (“The daughter”) and a son, Katan Hirachand (“Respondent two”). The daughter had severe mental health problems and made a claim against the Estate for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“The 1975 Act”). S3(1)(a) of the 1975 Act allows certain parties to make a claim against an Estate for financial provision. The Court shall have regard to the “financial resources and financial needs which the applicant has or is likely to have in the foreseeable future…” when exercising its power in determining the financial provision that should be awarded, if any, to a party.

The daughter entered into a Conditional Fee Agreement (“CFA”) with her solicitor to fund the litigation proceedings. The CFA specified that if the daughter lost, the solicitors (and counsel) would not be paid but if she won, they would receive their fees and a success fee of 72%.

The High Court ruled in the daughter’s favour and concluded that the Will of the Deceased did not make reasonable financial provision for the daughter and she was awarded a lump sum of £138,918, which included a sum in respect of the success fee payable under the CFA, concluding that the success fee was a liability of the daughter and therefore a “financial need”.

The award in respect of the success fee was appealed to Court of Appeal (“COA”) on the basis that a success fee should not be considered a financial need and that under Section 58A(6) of the Courts and Legal Services Act 1990, the daughter would not have been able to recoup the success fee as part of a costs order. The COA upheld the decision of the High Court and determined that the CFA success fee was a debt required to be paid by the daughter and therefore was considered a “financial need” within Section 3(1)(a) of the 1975 Act.

The widow appealed to the Supreme Court (“SC”). The Supreme Court allowed the appeal and excluded the award in respect of the success fee to the daughter. This decision was made for various reasons, taking into consideration whether or not a success fee was considered a “financial need” of the daughter.

Whilst taking in to account the fact that payments to fund legal costs in matrimonial proceedings under the Matrimonial Causes Act 1973 (“MCA”) may constitute “maintenance”, the general rule under the Civil Procedure Rules do not allow for success fees to be claimed as part of a costs order (S58A(6) Courts and Legal Services Act 1990) and that in any event costs should be dealt with under a separate costs order and should not form part of a substantive award. Given claims under the 1975 Act are civil proceedings, the CPR apply and not this case is not a case being brought under the Matrimonial Causes Act but a case under the 1975 Act.

It was argued by the daughter’s legal counsel that S58(A) only applies to costs orders and that provision, such as the success fee award in this case, as part of a substantive award is left open. The SC argued that the order made was a “costs order” as it included a provision of payment towards the daughter’s success fee.

In conclusion, this case will set precedent in 1975 Act cases going forward in that these cases are still civil proceedings, and are bound by the rules set out therein, and success fees are not to be included in any relief awarded under the 1975 Act. Therefore, any success fee would need to be paid by the Claimant and the rules under Section 58A (6) of the Courts and Legal Services Act 1990 would apply.

Judgment can be found at https://www.bailii.org/ew/cases/EWCA/Civ/2021/1498.html

if you have any queries or wish to discuss any potential claims you may have under the Inheritance (Provision for Family and Dependents) Act 1975, then contact Sasha Burl at sasha.burl@wellerslawgroup.com or on 01732 457 575.

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