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11 July 2023 | Half day Trust and Probate Conference, The Queens Hotel, Leeds

<!-- wp:paragraph --> <p>Join our Probate, Inheritance &amp; Trusts specialists at our annual half day conference for an afternoon of talks and networking.&nbsp;This conference will be held at <strong>The Queens Hotel, Palm Court, Leeds.</strong>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Guest speaker <strong><a href="https://www.9sjs.com/our-people/barristers/richard-price/">Richard Price</a></strong>, barrister from Nine St John Street, will be discussing Mediating Trust Disputes. Richard is a CEDR accredited mediator specialising in Business and Property disputes and head of Chambers’ Mediation Group.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This seminar will be relevant to all professionals practising Probate, Inheritance &amp; Trusts.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"25px"}}} --> <p style="font-size:25px"><strong>Programme</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>12:00 - 13:00: </strong>Registration and lunch</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>13:15 - 13:30:</strong> Welcome</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>13:30 - 14:00: </strong>Sarah Harrison - Applications under the Variation of Trusts Act</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>14:00 - 14:30:</strong> Anna Metcalfe - Challenging the exercise of Trustee Powers</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>14:30 - 15:00:</strong> Richard Price - Mediating Trust Disputes</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>15:00 - 15:20 :</strong> Tea Break</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>15:30 - 16:00:</strong> Greg Pipe - The Interface between Trusts and Commercial Disputes</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>16:00 - 16:30:</strong> Sean Kelly - Knowing Assistance and Tracing Remedies</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>16:30 Onwards:</strong> Networking and Drinks</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The price per delegate is <strong>£75.00 + VAT</strong> and includes lunch, afternoon refreshments and a post-conference drinks reception.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Tickets for this event are now sold out.</strong></p> <!-- /wp:paragraph -->

Nuisance after Fearn v Tate Gallery

<!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Neo Bankside development (“the Development”) consists of four purpose built residential towers on Holland Street, London. A stone’s throw from the south bank of the River Thames. Each has 21 floors and is designed to maximise the area of glass on each floor thereby giving the occupier a panoramic view of the city. Each tower was completed in 2013 / 2014 and subject to long leaseholds. Leases of many of the flats within the Development sell for over £1 million.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Across Holland Street and next to the Millenium Bridge is the Tate Modern gallery. In 2016 Tate Modern completed the construction of the Blavatnik Building. This is adjacent to the main building and in the form of a twisted pyramid&nbsp;including a 360 degree viewing gallery open to visitors. Block C of the Development (“Block C”) is the closest to the Blavatnik Building. The gap between the two is about 34 metres. The viewing gallery is at the height of&nbsp;floors 18 and 19 of Block C.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Development and the Blavatnik Building are substantial developments and planning for both took a long period. There was an overlap between the applications for planning permission. At one stage there was a proposal to include angled glass and like features in the viewing gallery. However, this proposal was not pursued in amended plans. Thereafter, neither the planning consultants for Tate Modern nor the local planning authority considered in any detail the desirability of restricting viewing in the direction of the Development. Even after the Development opened, the plans for the Blavatnik Building could have been amendment, but were not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court considered the relationship in space between the Development and the Blavatnik Building in detail, but it is not easy to see the problem without the benefit of Google Maps. A visitor to the viewing gallery would want to look downwards to the North to view the river. Such a visitor would also want to view the Houses of Parliament and the London Eye to the South West but these are some distance away. The visitor would probably be content to view these distant landmarks without looking down. In principle, the viewing gallery could have been designed to prevent viewing downwards in the South West direction (or indeed Southwards generally). Putting the matter another way, there is not much to look at immediately to the South of Tate Modern.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once opened, the viewing gallery became very popular with visitors of Tate Modern. At any one time the viewing gallery could accommodate up to 300 visitors. Such visitors watched, filmed and photographed residents of Block C on a virtually constant basis. Some even used binoculars. For the affected residents of Block C, the intrusion was relentless and akin to being in a zoo. Tate Modern did put up signs in the viewing gallery suggesting that the privacy of the residents should be respected. These were largely ignored.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The residents of Block C most affected (ranging from floors 13 to 21) commenced proceedings to require Tate Modern to cordon off part of the viewing gallery so as to prevent the viewing referred to above.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Initial observations</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first sight, one might be forgiven for thinking that the issues of the claim would be limited to the required remedy and that liability would not be a serious issue. The claimants were leaseholders of flats within Block C (with exclusive possession) and have a sufficient proprietary interest to bring a claim in private nuisance (see&nbsp;<em>Hunter v Canary Wharf Ltd</em>&nbsp;[1997] AC 655). The types of activity giving rise to private nuisance are not closed. In principle, private nuisance could apply to interference with television signals (see&nbsp;<em>Hunter v Canary Wharf</em>). It could apply to damage caused by Japanese knotweed (see&nbsp;<em>Williams v Network Rail</em>&nbsp;[2019] QB 601). Private nuisance ought to apply to viewing in an appropriately extreme case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The standard test or methodology involves asking three questions being as follows:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; Is the defendant’s use of its land “common or ordinary” in the locality? Some cases use “or” and some “and” without any discussion of the differences. If the defendant’s use of its land is “common or ordinary” then it may be able to avoid liability by relying upon the defence of “reasonable user” or “give and take” that is to say user necessary for the ordinary or common use of the land (see speech of Lord Goff in&nbsp;<em>Cambridge Water Co. v Eastern Counties Leather PLC</em>&nbsp;[1994] 2 AC 264 at page 299E).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Is the claimants’ use of their land “common or ordinary” in the locality?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; Is there a substantial interference with the use of the claimants’ land?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The creation and use of the viewing gallery is now unlawful and might be desirable from a commercial perspective, but it is hardly “common or ordinary” in this or any other locality. It is unique and this is its selling point. The interference is substantial because it deprives the residents of flats from being able to use them in the usual way that people do. For some residents, it made their life a misery. Insofar as this might be relevant, Tate Modern had every opportunity to design the Blavatnik Building so as to mitigate the effects on the residents of the Development, but did not to do so.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, this is not the way in which the case proceeded until the Supreme Court decision on&nbsp;1st February 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of Mann J at first instance ([2019] Ch 369)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim was brought on two bases. The first was that Tate Modern was undertaking “functions of a public nature” and thereby bound to act fairly under section 6(3)(b) of the Human Rights Act 1998.&nbsp;It was claimed that it had not done so by facilitating viewing of the nature described. The second was that the acts constituted private nuisance and that the Court was entitled to take into account the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in order to extend if necessary the remit of private nuisance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge found that Tate Modern was not&nbsp;undertaking “functions of a public nature” even though it was publicly funded. This would only apply if the functions were of the nature normally undertaken by a Government agency.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to private nuisance, the Judge considered that the requirement for the protection of privacy under the Convention enabled him to extend the tort of private nuisance (if necessary) so as to include viewing which interfered with such privacy. However, the Judge concluded that there had been no substantial interference with the claimants’ reasonable user of the flats for the following reasons:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; The way in which the viewing gallery had been operated was not unlawful or “unreasonable”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; The claimants had created a “self-induced sensitivity” to viewing by deciding to live in flats which had been constructed so as to maximise glass frontage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; The claimants could take steps to deal with the problem whether by installing tinted glass or curtains other otherwise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Accordingly, the claim was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I found the decision at the time troubling.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; As to the first point, the reference to user which was not “unreasonable” seemed to be misplaced. Mann J did not conclude that Tate Modern’s user was “common or ordinary”.&nbsp;Accordingly, “reasonable user” or “give and take” should not apply.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; As to the second point, this is normally an argument which judges hate. The amount of glass used in the construction of the towers enabled the&nbsp;residents of to enjoy their flats to their best advantage. Nothing more. Some years ago, I acted for an offal factory which had increased its production intensity. Nearby residents brought claims against it for private nuisance relating to noxious smells and noise. One of the arguments which the offal factory used was that these residents had created or worsened the problem by installing patio doors in their homes which they liked to keep open during the trading hours of the offal factory. As might be expected, this argument went down like a lead balloon. In my experience, similar arguments normally do. As a general rule, judges are the sort of people who like to enjoy their homes to their best advantage and empathize with a claimant who wishes to do so. There is also an element of blaming the victim, which is unattractive.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; This seems to be an issue as to remedy rather than the existence of a cause of action.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of the Court of Appeal ([2020] EWCA Civ 104)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before the Court of Appeal, the case took a different direction.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>All three judges disagreed with the approach taken by Mann J as to substantial interference. None accepted that the claimants had created a “self-induced sensitivity”. The claimants were just enjoying their flats as people do.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, all three judges concluded that the weight of judicial authority was to the effect that&nbsp;“mere overlooking” from one property to another was not capable of giving rise to a cause of action in private nuisance. Article 8 of the Convention could not assist in extending the ambit of private nuisance because concepts of privacy under the Convention were distinct from property rights protected under the law of private nuisance. Privacy is attached to the person. Private nuisance is a property tort linked inextricably with rights to enjoy property.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I found the decision at the time troubling because the essence of the tort of private nuisance is that it evolves with time, technology and the innate ability of the species to interfere with the rights of neighbours. It clearly applies to vibrations on one property which affect the neighbouring property. This type of vibration would not have been dreamt of when the tort originated. Neither would residential tower blocks lined with glass.&nbsp;In any event, the viewing by visitors was not “mere overlooking” in the sense that it arises merely because one property is higher than another. It was deliberate and intensive viewing for pleasure or amusement. Tate Modern had effectively encouraged its visitors to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of the Supreme Court</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>All five judges concluded that the tort of private nuisance was wide enough to enable a claim relating to viewing provided that it was sufficiently intensive. Insofar as this was relevant, the actions of the visitors of Tate Modern amounted to far more than the facilitation or encouragement of “mere viewing”. The fact that there had been no reported case to date relating to such a claim was not important. Article 8 of the Convention has no part to play in assessing the scope of the tort or private nuisance or any similar property tort.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority of the Supreme Court (Lords Leggatt, Reed and Lloyd-Jones) accepted the criticisms of the Court of Appeal with regard to the decision of Mann J and concluded what there had been substantial interference with the claimants’ “common or ordinary” user of their flats. While there was a balance between the conflicting right of neighbouring owners to be maintained (see&nbsp;<em>Sedleigh-Denflield v O’Callaghan</em>&nbsp;[1940] AC 880) the balancing exercise required the Court to intervene and relief would be granted. Lord Leggatt, who gave the speech of the majority, was scathing about the judgments below and considered that they may have been motivated by a desire to prefer the rights of the many visitors to Tate Modern at the expense of a few rich residents of the flats. In this regard, Lord Leggatt may be inferring more than is obvious from the judgments themselves. It is an unfair criticism of the Court of Appeal as all three judges would have found for the claimants but for the fundamental issue as to the nature of the actions giving rise to a private nuisance claim.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The speech of the minority (Lords Sales and Kitchin) is not easy to follow. They do not appear to have accepted the argument that the claimants created “a self-induced sensitivity”. However, they refused to interfere with the judgment of Mann J on the basis that private nuisance involves at its very essence the concept of “reasonable user” or “give and take”. For the minority, these concepts were not limited to actions required for “common or ordinary” user. The minority considered that residents of the flats were in a position to take steps to mitigate the problem and they should do so rather than Tate Modern.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The analysis of the minority is perplexing for a number of reasons including the following:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;&nbsp;&nbsp; The natural reading of the speech of Lord Goff in&nbsp;<em>Cambridge Water</em>&nbsp;limits “reasonable user” or “give and take” to actions required for “common or ordinary” user. No judge took the view that there was “common or ordinary” user of Tate Modern’s land.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Extending the defence of “reasonable user” or “give and take” to situations where the user is not “common or ordinary” creates uncertainty and changes the whole nature of the liability. A person who constructs a property which is not “common or ordinary” in the locality (or commences a use which is not “common or ordinary” from an existing building) ought to assess and mitigate the consequences for his neighbours of such use. He is best placed to do so and mitigation can be filtered into the cost. One might be forgiven for thinking that these steps would be taken in conjunction with (or at the direction of) the planning authorities. On the facts, Tate Modern had been given every opportunity to construct the Blavatnik Building in a way which mitigated the obvious potential damage to the residents of Block C caused by hundreds of visitors gawping at them. It had taken none of these opportunities and had made no proposals to restrict the usage of the viewing gallery thereafter.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The law after the judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a case with just two issues, it is surprising to find such fundamental difference of approach by the judiciary. As to the two issues, the nine judges considering the same decided as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; Nuisance applies to viewing (6 to 3).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; There was substantial interference (6 to 3).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, there were only three judges who found both. Fortunately, they were all in the Supreme Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The following can be said in the light of the judgment of the Supreme Court:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; The boundaries of the law of private nuisance are not closed. In appropriate circumstances, viewing can amount to private nuisance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Article 8 of the Convention is of no assistance in determining the ambit of private nuisance or any other property tort.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; Reliance upon “self-induced sensitivity” arguments as regards residential properties is likely to be very difficult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp; The standard test for substantial interference is to be applied that is to say the defence of “reasonable user” or “give and take” only apply to actions required for the “common and ordinary” user of the claimant’s land.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sean Kelly</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>22nd February 2023</p> <!-- /wp:paragraph -->

Proprietary estoppel after Guest v Guest

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For some time, the Court has had to deal with an increasing number of proprietary estoppel claims brought by a son against his parents in relation to the family farm. This may be the result of changes in family relationships or just due to the increasing value of farming land. The majority of claims used to be made against the executors of the parents following the realisation by the son that the will contained no bequest to him of the family farm. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new norm is for the claim to be made during the lifetime of the parents following a breakdown in the relationship. The ability to make such a claim during the lifetime of the parents was first established by the decision of the Court of Appeal in <em>Gillett v Holt </em>[2001] Ch 210. Although some claims are made by daughters (such as<em> Davies v Davies </em>[2016] EWCA Civ 463), the majority are still made by sons.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In most cases the promise, representation or assurance relied upon is <em>“One day, all this will be yours”</em>. The promise leads to the expectation that all or part of the family farm will pass to the son at some point in the future and the son spends his entire life working on the farm (often at low pay) instead of pursuing other career options. There is no contract to rely upon and the lack of certainty in the promise precludes a constructive trust claim. The son has to make his claim in proprietary estoppel.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Proprietary estoppel is a judge-made remedy which had been the subject of considerable case law including two decisions of the House of Lords (that is to say <em>Cobbe v Yeoman’s Row </em>[2008] 1 WLR 1752 and <em>Thorner v Major </em>[2009] 1 WLR 776) albeit that such decisions are of limited scope. <em>Thorner v Major </em>confirmed that the promise could be in very general terms and it was the function of the Court to interpret it. <em>Cobbe v Yeoman’s Row </em>confirmed that proprietary estoppel had no application to commercial negotiations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court has usually adopted a two-stage test. In the first stage, it determines whether “an equity” has been raised which makes it necessary for the Court to intervene to provide a remedy. The second stage is the crafting of a remedy to “satisfy the equity”. The principles are set out succinctly by Lewison LJ in <em>Davies v Davies </em>at paragraph 38 in a passage that has become a template for later decisions:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1) Deciding whether an equity has been raised, and if so, how to satisfy it is a retrospective exercise looking backwards from the moment when the promise falls due to be performed and asking whether, in the circumstances which have actually happened, it would be unconscionable for a promise not to be kept either wholly or in part.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity (b) reliance by the claimant on that assurance and (c) detriment to the claimant as a consequence of his reasonable reliance</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3) However, no claim based on proprietary estoppel can be divided into watertight compartments. The quality of the relevant assurances may influence the issue of reliance; reliance and detriment are often intertwined, and whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) Detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;There must be a sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. The question is whether (and if so to what extent) it would be unjust or inequitable to allow the person who has given the assurance to go back on it. The essential test is that of unconscionability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6)&nbsp;Thus, the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>7) In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant’s assurances against any countervailing benefits he enjoyed in consequence of that reliance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8)&nbsp;Proportionality lies at the heart of the doctrine of proprietary estoppel an permeates its every application. In particular, there must be a proportionality between the remedy and the detriment which is its purpose to avoid. This does not mean that the court should abandon expectations and seek only to compensate detrimental reliance, but if the expectation is disproportionate to the detriment, the court should satisfy the equity in a more limited way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9)&nbsp;In deciding how to satisfy the equity the court has to exercise a broad judgmental discretion. However, the discretion is not unfettered. It must be exercised on a principled basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lewison LJ went to set out the “lively controversy” as to the purpose of the remedy, that is to say whether the purpose was to give effect to the claimant’s expectation unless it would be disproportionate to do so or whether it was to compensate the claimant for the detriment which he had suffered as a result of reliance on the promise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The “lively controversy”</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Guest v Guest </em>[2022] UKSC 27 (delivered on 19<sup>th</sup> October 2022) the Supreme Court was required to resolve this “lively controversy” and determine the purpose of the remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The facts in <em>Guest v Guest </em>are complicated given that the promises were given over the whole lifetime of the son. However, for the most relevant facts could be said to be as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; There was a breakdown in the relationship between the claimant son and his parents during their lifetime. Accordingly, the claimant son was seeking an interest in the family farm now rather than when it was promised and his interest was being accelerated.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;The family farm had a farmhouse which was still occupied by the parents</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp;As a result of repeated promises over his whole life, the claimant son expected to conduct the dairy farming business until the death of his father. On the death of the second parent to die, the claimant son expected to receive one half of the dairy farming business and one half of the farm (including the farmhouse). A brother was to receive the other half of the farm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp;While the claimant son and the parents had been in partnership for a short period, this partnership had been dissolved and no consideration was given to the effect of it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;Any remedy would involve the sale of the dairy business and the farmhouse. This was bound to create an immediate CGT charge.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In contrast with <em>Davies v Davies </em>(where liability and remedy were tried separately), HHJ Russen, QC ([2019] EWHC 869 (Ch)) tried both together. The parents put all of their efforts into defeating the claim and made no detailed submissions as to remedy. The Judge determined that it was unconscionable for the parents to go back on their promises and that a remedy should be provided to satisfy the equity. The Judge considered that the most proportionate remedy was to make a lump-sum award to the claimant son calculated on the following basis:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;50% after tax of the market value of the dairy business</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2) 40% after tax of the value of the farm and 40% after tax of the value of the farmhouse taking into account a decrease to be generated by the assumption that the same was subject to a notional life-interest for the parents.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Other than the reference to the assumed life-interest of the parents, there was no express reference to the effects of acceleration and how there could be a discount to reflect this effect.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal refused the appeal, so the award was not altered.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the Supreme Court, there are two competing opinions. The majority opinion (3) is given by Lord Briggs, with the minority opinion (2) given by Lord Leggatt. They could not be more different.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;For the majority (paragraph 61) the unconscionability is the repudiation of the promise, and the purpose of the remedy is to prevent the defendants from doing so. It must naturally follow that the remedy to be crafted by the Court will involve ensuring that the reasonable expectation of the claimant is fulfilled save where this would be “out of all proportion to the detriment”. The burden of proof is on the defendant to plead and prove that the remedy would be out of all proportion to the detriment (paragraph 76). Although not stated expressly, as a matter of logic, this would also mean pleading and proving some other more proportionate remedy to achieve the same purpose.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;For the minority (paragraph 191) the unconscionability is not the failure by the defendant to keep a non-binding promise. It is the failure by the defendant to accept responsibility for the consequences of the claimant’s reasonable reliance on the promises. Accordingly, the remedy is there to deal with the consequences of detriment, and this is the starting point for crafting any remedy. The minority then went on to seek to determine the real financial loss suffered by the son.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority did not object to the principle of a lump-sum order but objected to the order made by HHJ Russen, QC due to its failure to deal expressly with the effects of acceleration. However, it did not substitute its own order. If necessary, this issue would be remitted to the trial judge. The minority substituted a detriment-based award calculated so as to accord with the loss of earnings or other lost benefits of the claimant son.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is unfortunate that it has taken so long for the purpose of this remedy to be determined at the highest level. The two views cannot be reconciled, and the position has now been resolved by the principle of majority rule. The starting point is that the Court should craft its remedy in order to ensure that the reasonable expectation of the claimant is satisfied unless this would be out of all proportion to the detriment. It is for the claimant to set out what his expectation is and how this is to be satisfied by order of the Court. The claimant needs to plead and prove detriment, but not in financial terms. It is for the defendant to set out why this would be out of all proportion to the detriment and put forward another remedy to achieve the same end.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As regards the test of unconscionability, proportionality is still important. Repudiation of the promise (or refusing to give effect to the expectation if different) only requires the intervention of the Court if this is unconscionable. The extent of the detriment suffered is relevant to this. As the majority clarified, it is not necessarily unconscionable for parents to repudiate the promise if their financial circumstances change.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the majority of farming cases, fulfilment of the expectation will involve the transfer of assets which are in monetary terms out of all proportion to the financial detriment suffered by the son in working on the farm for his whole life. The value of many of the family farms which are the subject of the most recent cases is measured in millions if not tens of millions of pounds. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a natural result of the increase in the value of farming land. Clearly, the majority in the Supreme Court took the view that this increase in the value of land is not a good reason of itself to refuse to fulfil the expectation. Something more is required. This might involve prejudice to the interests of other members of the family or the need to provide for the parents in retirement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Outstanding Issues </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the decision of the Supreme Court, the following issues remain unresolved:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;Will the need to fulfil the claimant’s expectation make the Court more reluctant to provide any remedy?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;What factors make it out of all proportion to fulfil the expectation of the claimant?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp;How should the Court deal with tax concerns?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) How should be Court deal with the acceleration which results from having to provide a remedy during the lifetime of the parents?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;What difference (if any) would it make if the parents and the son had been partners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>1) Provision of some remedy</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Some of the decisions of the Court involving a lump-sum payment can be explained on the basis that the Court considered that the claimant ought to be compensated in some way but not by the fulfilment of his expectation. <em>Jennings v Rice </em>[2002] EWCA Civ 159 would be the most obvious example. If proportionality were to permeate every part of the judicial process, then it would allow the Court to award something which allows the claimant to progress with his life without fulfilling his expectation of ownership of a particular farm or farming somewhere else. It remains to be seen whether the requirement to fulfil the expectation in full reduces the number of successful claims. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>2) Disproportionate relief</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is always difficult to apply other principles of equity by analogy. However, where a person receives money which is transferred in breach of trust, his liability in knowing receipt is based on his knowledge (express or implied) of the transaction. The underlying test is one of unconscionability. If it is unconscionable for him to keep the money, he has to pay it to the beneficiary of the trust.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is no question of him paying only some part if it depending upon how unconscionable it is for him to receive it. A sliding scale principle does not work with unconscionability. It is a binary issue. Logically, if it is unconscionable for the parents to resile from their promise to transfer all or part of the farm to their son, then his expectation can only be fulfilled by a transfer of some, or all of that particular farm and a lump-sum payment can never be an adequate alternative.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A lump-sum payment can allow the son to operate a farm somewhere else. However, that was not the expectation. The majority in the Supreme Court do not seem to be troubled by this. On this basis, the factors which a defendant can plead and prove include (a) the interests of other members of the family (b) the need for the parents to be provided with an income and housing in retirement and (c) the availability of means by which the son can acquire a similar farm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>3) Tax concerns</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the normal course of events, if the son is to inherit the family farm upon the death of the last parent to die, then there will be 100% agricultural relief for inheritance tax. Any CGT will be washed out. If the family farm is given to the son during the lifetime of his parents, then this will be a PET (albeit one to which agricultural relief could apply). As it is a PET, CGT is chargeable immediately at the true market value. If the son elects to do so, he can hold over the gain for CGT purposes. While it is unwise to predict future tax changes, it is reasonable to assume that CGT rates will increase significantly to fund the budget deficit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Bringing a proprietary estoppel claim during the lifetime of the parents can give rise to a tax charge. If the farm needs to be sold to a third party, this will give rise to immediately chargeable CGT. If the son is to receive all or part of the farm, he will need to agree to accept the election for him to be taxed and for the CGT be rolled over.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would be fair to say that the Court is not particularly concerned about the effects of taxation on the crafting of the remedy. It is often said that it is not the job of the Court to save the party's tax. In any event, the Court is poorly equipped to consider the tax aspects of any remedy. Orders requiring the farm to be transferred to the son subject to continuing periodic payments to the parents (such as <em>Moore v Moore </em>[2018] EWCA Civ 2669) have been made. Such a route has the merit of avoiding the CGT on sale, but this is not the reason for the Court’s choice of the route. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>4) Acceleration</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is really no assistance from the Court in any case as to how the acceleration in the entitlement of the son to the family farm should be dealt with.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As regards the lump-sum method, the effects of acceleration were not considered in any detail in <em>Davies </em><em>v Davies</em>. While the lump payment awarded by the High Court in <em>Guest v Guest </em>was criticized, no real guidance was provided as to how it should be done. There was merely a suggestion that actuarial tables could be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to the transfer of the farm subject to a periodic payment method, the order of the High Court in <em>Moore v Moore </em>provided for a weekly payment of £200 to the parents, in relation to a farm worth several million. While this payment was set aside as being far too low and a higher payment substituted, there was no real guidance as to how such a figure should be calculated. Presumably, it should bear some relation to the value of the farm to be transferred or (at least) the ability of the farm to generate income.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>5) Partnership issues</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These were not addressed in <em>Guest v Guest</em>. In <em>Moore v Moore </em>the claim arose in relation to an interest in a farm held in partnership. Even though the case started as a winding-up claim, there was no real discussion as to whether the existence of a partnership affected the nature of the expectations of the son or the relief to be granted. These issues remain unresolved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When a parent takes a son into partnership, the relationship must change to a predominantly commercial one. The expectation of the son as regards what is to occur when the partnership is dissolved ought to accord with the position under the partnership agreement or the general law of partnership. The decision in <em>Cobbe v Yeoman’s Row </em>precludes a proprietary estoppel claim in relation to a purely commercial relationship. Logically, the decision should preclude the son from asserting rights greater than those which arise as a partner. Unfortunately, this point was not raised in<em> Moore v Moore</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Another feature of partnership proprietary estoppel claims is the widespread assumption that all land farmed by a partnership is partnership land. A son might work on the family farm as a partner for many years on the assumption that the farm is partnership property only to realise much later that it is still owned by the parents. In such a situation, there is no promise. There is merely a misunderstanding of the law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The role of mediation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to the assessment of whether it would be unconscionable for the parents to repudiate the promise made by them, mediation has a limited role. However, in most cases it is relatively obvious whether the son has a claim with merit and the real issue is as to remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to remedy, mediation is really the best way of proceeding. The Court is ill-equipped to provide a sensible pragmatic solution to the problem especially if tax is an issue. A mediator will probably be concerned primarily with what the claimant requires in order to continue to farm whether at the family farm itself or otherwise. In reality, there are likely to be many different solutions each with pros and cons which can be examined in detail during a mediation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean</a>&nbsp;undertakes a broad range of chancery and commercial work with emphasis on partnerships, company law, banking, contractual disputes, land law (including land registration), landlord and tenant and administration of estates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em> </em></p> <!-- /wp:paragraph -->

Death and the family partnership

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The death of a member in a family partnership is an event which creates legal complexities as well as straining personal relationships. This article deals with common issues arising on the death of a member of a family partnership.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The situations created on death are infinitely varied, but a common scenario involves a partnership conducted between the father (“F”) and a son (“S”) where F makes a will appointing S and another child who has had no involvement in the business (“D”) as executors. The issue referred to above, is explored by reference to the consequences of the death of F while the partnership is continuing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The grant of probate</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is at least a potential conflict of interest between the position of S as executor and as continuing partner. However, this is a conflict which has been created by F and this conflict (of itself) should not prevent S from proving. Indeed, S will need to provide much of the information required in order to compile the IHT forms. Compiling these forms without his operation will be difficult. However, S will need to ensure that he takes all necessary steps to advance the interests of the estate against his own. Otherwise, his conduct may create an actual conflict of interest which would justify his removal under section 50(1) of the Administration of Justice Act 1985.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The fact that S is a proving executor will not prevent him from bringing a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”) and will not prevent D from bringing a claim for winding-up of the partnership against S using CPR Part 19.3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As IHT has to be paid before the grant of probate is made, S and D will need to reach some form of agreement as to the value of the interest of F in the partnership at death and to what (if any) properties held by F and S as joint tenants at law pass to S by survivorship. Care needs to be taken in the compiling of the IHT returns so that S and D both understand the basis upon which the partnership has operated is recorded accurately. HMRC will expect the IHT forms to be complied by reference to dissolution accounts.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Even before probate, D is entitled to see all of the accounts and accounting records of the partnership. Without these D will have little ability to understand how it has traded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Partnership accounts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>D will need to understand the operation of the partnership and (in particular) the nature of partnership property and will look to its annual accounts. No Statement of Standard Accounting Practice applies to partnership accounts and there is no requirement to update property values. Accordingly, it can be very difficult to determine which assets have been treated as partnership property from its accounts. Whenever an asset is brought into the partnership, the accountants ought to produce a note of the asset and the attributed value for future reference. In practice, this is done rarely.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Construction of gifts of assets associated with a partnership</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A partner has no interest in any individual item of partnership property and merely has a net interest in all of the assets after the payment of all of the debts (see <em>Popat v Shonchhatra </em>[1997] 1 WLR 1367).&nbsp; This is a single cause of action which cannot be divided. The cause of action is the right to have the partnership wound-up. It is similar to a right to due administration of an estate. Partnership property cannot be held as tenants in common or as joint tenants as these forms of trust can only apply to individual assets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The will of F may not describe correctly his interest in the business conducted by the partnership and F may well forget that assets (particularly land) which were previously owned by him beneficially are now partnership property.  </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A bequest of F’s “<em>business” </em>or his <em>“share of the business” </em>are normally construed as being F’s interest in the partnership which conducts the business (see <em>Re Barfield </em>(1901) 84 LT 28).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A number of cases decided before the Partnership Act 1890 (“the Act”) (and in particular<em> Blake v Shaw </em>(1860) Jo 732 and <em>Farquahar v Hadden </em>(1872) 7 Ch 1) appear to accept that there can be valid bequests of individual assets used in a partnership business. If that asset is not partnership property, then there is no objection to the asset passing by will in the usual way. However, if the asset is now partnership property, then it cannot pass in this way as the interest of F is not divisible. Any case decided before the Act needs to be treated with caution and it is unlikely that any Court would now accept this possibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Continuation of the business of the partnership</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If it so provides, S may be able to or required to purchase F’s interest in the partnership following death under the terms of their partnership agreement. This could arise automatically or pursuant to an option. In either case, S’s decision to continue with the business on his own account is made at the time of death or the exercise of the option.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where there is no contractual mechanism to allow S to purchase F’s interest in the partnership, the death will lead to a general dissolution where all assets of the partnership have to be sold. As executor of F, D has no right to participate in the management of the business of the partnership. Accordingly, S must wind-up the affairs of partnership. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 38 of the Partnership Act 1890 requires a continuing partner to complete transactions <em>“begun but not unfinished” </em>at the time of dissolution. In practice, this is a very limited requirement and S will need to decide at an early stage whether he wants to continue the business of the partnership on his own account or whether he merely wishes to wind it up. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For a partnership which operates a shop, winding-up involves the sale of the stock at the date of dissolution. However, it is very difficult to sell stock in this way. Customers expect stock to be replenished and are unlikely to buy slow-moving stock unless fast-moving stock is also available. Accordingly, it is difficult to merely wind-up a partnership of this nature. For agricultural partnerships there is normally an annual growing cycle, and the partnership transactions are completed at the end of that cycle. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once S commences his own business using the assets of the partnership, the estate of F can claim an account under section 42 of the Act against him until winding-up has been completed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contractual purchase of the interest of F</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In many ways, the most important part of any well-drafted partnership agreement is a mechanism under which the interest of a departing partner can be purchased thereby avoiding general dissolution. There are two main mechanisms being automatic purchase at death (that is to say an accruer) and options granted either to the estate or to the continuing partner to purchase. No contractual mechanism can operate if the partnership has already been dissolved (by agreement) before death.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main advantage of an automatic purchase mechanism is certainty. The only issue left outstanding is the determination of the sum to be paid. The problem with accruer clauses is that HMRC takes the view that they are agreements for the sale of a partnership share within section 113 of the Inheritance Tax Act 1984 so that the deceased is no longer conducting business at the time of death. On this view, business relief will not be available (see McCutcheon at paragraph 28-26).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Options to purchase avoid this IHT difficulty but they create many other problems. Some problems arise due to the nature of options generally. These include determining when the option is to be exercised and how notice is to be given. Particular problems arise on death because F can neither give nor receive an option notice. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Some person needs to represent F and that person may need a grant of probate to give or receive an option notice. This may take time and the option period may elapse before a grant is made.  A well drafted partnership agreement will deal with these issues, but many do not. If there is merely an option to purchase F’s interest in the partnership, then a failure to exercise the option will lead to a general dissolution.  </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In either type of mechanism, the price to be paid for F’s interest in the partnership can be determined in three ways being (i) using the last set of partnership accounts (ii) using accounts to be drawn up to death but on the same basis as previous accounts and (iii) using accounts to be drawn to death but with a revaluation of the assets. The third basis approximates most closely to the position on general dissolution and is the fairest. However, there is no presumption that any purchase mechanism adopts the third basis. The Court will construe each mechanism under normal contractual principles (see <em>Drake v Harvey </em>[2011] EWCA Civ 838). However, in practice the Court normally prefers to construe the clause so as to allow revaluation unless constrained to do so otherwise (see <em>Ham v Ham </em>[2013] EWCA Civ 1301). Revaluation normally leads to a fairer result.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the assets of the partnership are to be revalued, this necessarily requires the instruction of a surveyor who might or might not be instructed as an expert. There will be a delay in obtaining the valuation (particularly if either party thinks that it is wrong) and this necessarily leads to the issue of whether the purchase price of payable on death (or the exercise of the option) or upon determination (see <em>Liddle v Liddle </em>[2019] EWCA Civ 346).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Any purchase mechanism has to adopt the treatment of assets in the partnership accounts. Assets cannot be re-valued unless a value is attributed to them in the accounts. Accordingly, purchase mechanisms do not overcome issues relating whether individual assets are partnership property.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As contractual mechanisms use pre-existing accounts or current accounting bases, goodwill will not feature, and no sum will be paid for the same.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Winding-up following general dissolution</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 43 of the Act gives the impression that the interest F in the partnership is converted into a debt at the time of his death. At least in the case of a partnership holding assets, this is not the case. Partnership property is defined by section 20(1) of the Act to be property held upon the trusts of the partnership. The interest of F in partnership property is not sold or otherwise transferred on death. Partnership property remains partnership property until it is all sold on winding-up. F’s estate is entitled to his share of the capital profits arising on any increase in the value of partnership property on sale.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>D or S can both apply to the court for winding-up. It is a joint cause of action, but both can take advantage of CPR Part 19.3. Issues relating to winding-up have little or no connection with the administration of the estate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 23 of the Limitation Act 1980 prescribes that the time limit for the taking of an account is six years. This time limit has little practical application because it would be very rare for dissolution accounts of some kind to be prepared not least because of the requirement to value the interest of F in the partnership for IHT purposes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although a partnership is not wound-up until all of its assets are sold, it is common to prepare dissolution accounts in advance of any such sale. The value of the assets of the partnership at F’s death is needed because a section 42 account proceeds on the basis of the value of the capital account of F at death. Necessarily, such dissolution accounts will contain estimated values for partnership property. Unless there is a need to produce distinct winding-up accounts for tax purposes, the dissolution accounts will be adjusted when the assets are sold as estimated values will be replaced by actual values.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S may well wish to buy some or all of the assets of the partnership so that he can carry on the business on his own account. S can apply to the court for a <em>Syers v Syers </em>order enabling hm to purchase the assets at a valuation. In practice, D will normally agree to such an order provided that S does not seek to cherry pick the assets required. Provided that S pays the market value for the assets, D can have no proper cause for complaint. The issue will only come before the court if D has some good reason not to agree. Hence the comment of Hoffman LJ in<em> Hammond v Brearley </em>that <em>Syers v Syers </em>is more often cited than followed. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A good reason would normally involve some difficulty in undertaking the valuation exercise. D and S may have wildly different views on the value of particular land depending on its potential for development. It may not be appropriate for the court to determine this issue rather than the market.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is very likely that there will be disputes as to what assets are partnership property and which pass to S by survivorship. As stated above, this needs to be considered before the IHT forms are completed because S may find it difficult to change his position from that stated in the IT forms. This is not likely to be a problem for D as D has to rely upon the partnership accounts. The general rules are as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Partnership accounts are a starting point for the exercise but will not be definitive (see <em>Barton v Morris </em>[1985] 1 WLR 1257). Accountants often include assets in partnership accounts without explaining the significance to the partners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; No formalities are required for an asset to become partnership property as section 20(1) of the Act merely requires an asset to be <em>“brought into the partnership”</em>. Bringing in is an issue of fact. It is normally proved by appropriate bookkeeping entries. The partnership is credited with the value of the asset and the capital accounts are adjusted to make the accounts balance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Transferring partnership property out of a partnership requires formalities as there is no provision corresponding with section 20(1). For land, there will need to be a contract for sale complying with section 2(1) of the Law of Property (Miscellaneous) Provisions Act 1989 and then a deed.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An asset bought with partnership money is deemed to be partnership property under section 21 of the Act unless the contrary can be proved. Money distributed to a partner as drawings and then used to buy an asset is no longer partnership money.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Only assets which are bought and sold by a partnership in the ordinary course of its business have to be partnership property (see <em>Miles v Clarke </em>[1985] 1 WLR 1257). Any other assets can be held outside the partnership.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In principle, on winding-up the goodwill of the partnership should be sold whether to S or to a third-party purchaser of the business. If there is saleable goodwill, then this will increase the capital account of F. Realistically, it is unlikely that the partnership will have saleable goodwill which can be differentiated from the personal goodwill of F and S.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Section 42 account</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A section 42 account only applies to income profits.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although section 42 of the Act gives D the right to claim the share of profits generated from S’s use of F’s interest in the partnership, this exercise is complicated as much of the profit may have been generated from S’s efforts. D will usually only opt for claiming a share of profits in a business which generates profits without much active involvement (such as property letting).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where D seeks interest by way of a section 42 account, this is calculated based on the value of F’s capital account at death. Necessarily a section 42 account can only actually be taken after winding-up because winding-up is the final date of the account. Since 2008 at least an interest rate of 5 per cent per annum has been generous.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Inheritance Act claims</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These can arise either where S brings a claim seeking provision to enable to continue the partnership business without paying the full value of F’s interest to the estate or where a third party seeks provision from F’s estate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In any such case the court has to determine the value of F’s interest in the partnership as best it can. It cannot embark upon a full winding-up exercise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean</a>&nbsp;undertakes a broad range of chancery and commercial work with emphasis on partnerships, company law, banking, contractual disputes, land law (including land registration), landlord and tenant and administration of estates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em> </em></p> <!-- /wp:paragraph -->