‘2nd ed of the Contentious Probate Handbook – progress update (18.05.2024)’

I am currently writing-up Chapter 3 (Probate Disputes), and today completed the section about ‘Want of execution.’ When I researched this chapter earlier in the year, I came across a general evidential point in relation to the judicial approach advocated in ‘Gestmin.’ This is of general application in relation to the ‘memory’ of witnesses. The following is a very brief extract from the current draft of paragraph 3.2.2 (Necessity for strict compliance) of the book:

‘In Gestmin SGPS S.A. v. Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) … Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony, observing that: …

The best approach for a judge to adopt in the trial is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

See also Chapter 5 (Litigation) paragraph 5.3 below, and CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] to [10] (approved in Kogan v. Martin [2019] EWCA Civ 1645, in which Floyd LJ stated at [88] that, ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’
What constitutes the ‘strongest evidence’ in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the threshold to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied.

Draft Chapter 3 currently runs to 82 pages, and today I have completed the writing-up of 18 of those pages. The next section I am writing-up, which is a personal favourite, is – ‘Lack of testamentary capacity.’ So – back to the book!

My article – ‘Golden rule in commercial mediation’ was published in the Law Society Gazette online 13.05.2024.

My article – ‘Golden rule in commercial mediation’ was published in the Law Society Gazette online 13.05.2024. To read it, simply google the words – ‘Golden rule in commercial mediation + Law Gazette.’ I have also posted a link to the article on the ‘Publications’ page at www.carlislam.co.uk

Link: Golden rule in commercial mediation | Law Gazette

30 minutes ago, I completed the writing-up of draft Chapter 4 – ‘Associated claims’, of the 2nd ed of the Contentious Probate Handbook, for publication by the Law Society of England & Wales, and submitted it to my editor. The chapter runs to 19,730 words = 79 A4 pages of manuscript. In re Thompson’s Will Trusts; Dryden v Young [2024] EWHC 1095 (Ch), HH Judge Davis-White KC, provided a comprehensive summary of the principles that govern the approach of a court of construction to the interpretation of a will. This, along with other recent cases in relation to: substitution & removal of executors; construction & rectification of a will; family provision; & proprietary estoppel claims (including Winter v. Winter [2023] EWHC 2393 (Ch)), together with references to civil procedure and practice set out in the latest edition of the Chancery Guide, are all discussed. Next, I will turn to the writing-up of Chapter 2 – ‘Preliminary steps’, which will include a detailed and updated discussion of ‘caveats’. I am aiming to complete the 1st draft of that chapter within the next 14 days. So back to the book! Activate to view larger image,

‘My article – “Golden Rule in Commercial Mediation” is scheduled for publication in the Law Society Gazette (online) either tomorrow or on Monday’

I have broken off from writing the 2nd ed of the Contentious Probate Handbook for the Law Society for 30 minutes, to mention that the editor of the Law Society Gazette has just informed me that my article ‘Golden Rule in Commercial Mediation’, will be pusblished online in the Law Society Gazette either tomorrow or on Monday. This is my 2nd article for the LSG over the last 6 months. My previous article was entitled ‘Commercial Mediation of Music Disputes.’ Just Google those words to find it. The LSG has given permission to the CMC to republish that article on their website, to a worldwide audience. I am currently wriritng the Costs Chapter of the book, and by Sunday will have completed the draft chapter for submission. I will then have written-up almost half the book. As I have been writing the book, I have discovered significant changes in the law, procedure and practice in relation to these claims, and following publication will offer the LSG a series of short articles as updates for solicitors. Now back to the book!

‘Testamentary Capacity’

In Leonard v Leonard (2024 EWHC 321 Ch) [149] to [157] Mrs Justice Joanna Smith provided a useful summary of the key legal principles:

(i)          It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity.
(ii)         The enquiry is whether, the deceased testator’s [‘T‘s’] mind is so unsound that [T] ‘cannot understand what he is about … or his ability to make a rational decision is absent’ (Gardiner v Tabet [2021]).
(iii)       The Banks test concerns the ability or capacity to understand the matters identified therein. It does not require actual understanding or recollection and it is not to be equated with a test of memory.
(iv)       There is no requirement that T actually remembers the extent of his property & deficiencies of memory are not the equivalent of incapacity.
(v)        When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under ‘knowledge and approval’ (Perrins v Holland & Simon v Byford [2014].
(vi)       When evaluating limb 2 of the Banks test, there is no need for T to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have ‘a general idea’ of those assets (Todd v Parsons [2019].
(vii)     T does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property (Minns v Foster Ch, 13 December 2002 (unreported)).
(viii)    Furthermore, there is no need for knowledge of the actual value of assets (Blackman v Man & Schrader v Schrader [2013]).
(ix)       When evaluating limb 3 of the Banks test, T must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property.
(x)    The question with which the court is concerned when considering the Banks test is transaction and issue specific. T must have the mental capacity (with the assistance of such explanation as he may have been given) to understand ‘the particular transaction and its nature and complexity’ (Hoff v Atherton & Hughes v Pritchard). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of T‘s property (limb 2) and of the moral claims on his estate (limb 3).
(xi)  The 4th limb is a separate element.
(xii) In Sharp v Adam, the Court of Appeal observed that, with reference to the 4th limb, the judge could have asked ‘whether [T’s] human instincts and affections, or his moral sense, had been perverted by mental disease,’ & observed that the 4th limb is ‘concerned as much with mood as with cognition’. It is in this way that it is to be distinguished from the previous 3 limbs, which are purely concerned with cognition.

I will of course discuss this case along with recent cases about Undue Influence and Lack of Knowledge and Approval, in Chapter 3 – ‘Probate Claims’ of my forthcoming book for the Law Society – the 2nd Edition of the Contentious Probate Handbook. This will be my 8th book. I am going offline from LinkedIn for the next 3 months, to focus of completing the writing of the 1st complete draft of what is looking like a 400 page book. Ellen Radley – who is one of the world’s leading forensic document advisors, and Dr Hugh Series (Oxford University) – who in my opinion is the UK’s foremost expert on testamentary capacity, are each kindly contributing Practice Notes which will appear as Appendices about: (i) Forensic Examination of Handwriting; and (ii) Mental Disorders, respectively. By the end of this week I will have completed the writing of around 50% of the book. So, it is now time for me to return to life as a hermit – well at least until mid-July!

‘Evidence at Trial in Contentious Probate Cases’

The following is a brief extract from Chapter 5 – ‘Litigation’, of my forthcoming 400 page book – the 2nd Edition of the ‘Contentious Probate Handbook’. I am currently on schedule to complete the drafting of Chapter 5 for submission to my editor in 3 days time. I will then have completed the first draft of around 1/3rd of the book. I am on schedule to complete the book before my Birthday on 22 July:

5.3.5 Evidence

The general rules of evidence apply in probate claims subject to special rules about:
       (a)      admissibility; and
       (b)      the evidence required to prove particular matters, i.e. due execution, revocation, testamentary capacity, knowledge and approval, undue influence and fraud. …

In a contentious probate case, the guiding principle is that a witness should give evidence in his or her own words on issues in the case in relation to which his evidence is likely to assist the court, and nothing else. See also paragrapah 5.8.6 – ‘Reality-Testing’, below. …

‘Recent authorities about how a judge should approach the finding of a fact are: The statement of Legatt J (as he then was) in the commercial case of Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm) … that ‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, the place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’ has attracted criticism: see CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] – [10] approved by the Court of Appeal in Kogan V Martin [2019] EWCA Civ 1645. In the latter case, Floyd LJ stated at [88] that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’ …
(Tristram And Coote’s Propbate Practice. Thirty-Second Edition (2020), by PR D’Costa, P Teverson and T Synak, Lexis Nexis, Paragrpah 39.18, Footnote 3). …

Where, as is often the case, facts relating to the making and execution of a will are solely in the knowledge of one party, e.g. where a testator drafted a home-made will under the terms of which he gifted assets to a person who was living with him, then the making of an application under CPR Part 18 for further information may be necessary. In which case, the author would argue that it is appropriate to make an interim application at an early stage in the proceedings, i.e. at or before the first CMC.

Part 7 probate claims are inherently fact-sensitive, often culminating in a decision being made about which of the parties’ conflicting accounts is more probable than not. … The credibility of the witnesses of fact and consequently the weight attached by the judge to their evidence, will often be a determinative factor in reaching an overall conclusion prior to judgment.

‘Beware Of The Lawyer – The Dog Is Harmless!’

Well at least that is what it says on the sign in my office!

Advocacy is about ‘persuasion’ in the non-Godfather Part 1 sense of the term. That takes patience, preparation and skill. So does ‘persuasion’ in Mediation Advocacy. However, this takes the form of ‘negotiation’ – which involves a completely different approach and skill set – you are not trying to win. You are trying to do a deal. So, I have included the following recommended reading list at the end of the ADR Chapter in the 2nd Edition of the Contentious Probate Handbook, which I am currently writing for the Law Society of England and Wales:

10.5.3       Further reading
In order to develop your mediation advocacy skills, the author recommends the following publications:

‘Thinking in Bets – Making Smarter Decisions When You Don’t Have All The Facts’, by Annie Duke (2018), Portfolio/Penguin.

‘Negotiating the Nonnegotiable – How To Resolve Your Most Emotionally Charged Conflicts’, by Daniel Shapiro (2017) Penguin Books.

‘Negotiating the Impossible – How To Break Deadlocks And Resolve Ugly Conflicts (Without Money or Muscle), by Deepak Malhotra (2016), Berrett-Koehler Publishers, Inc.

‘Never Split The Difference – Negotiating as if your life depended on it,’ by Chris Voss (2016), rh Business Books.

‘Negotiation Genius – How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond’, by Deepak Malhotra and Max H Bazerman of Harvard Business School (2008), Bantam Books.

‘Building Agreement – Using Emotions As You Negotiate’, by Roger Fisher and Daniel Shapiro (2007), rh Business Books.

‘Thinking fast and slow’ by Nobel Laureate in Economics – Daniel Kahneman (2011), Allen Lane.

‘Beyond Machiavelli – Tools For Coping With Conflict’, by Roger Fisher, Elizabeth Kopelman, and Andrea Kupfer Schneider (1996), Penguin books.

I will be discussing ‘negotiation’ mindset and skills in a talk that will be broadcast worldwide at 4pm GMT on Thursday 24 October 2024, in a one hour online seminar for the SCMA.

Prior to entering private practice, I worked in-house for Rolls-Royce and Alstom (in Paris) drafting, and negotiating deals in multiple jurisdictions around the world (principally in the Far East, including China, Japan, South Korea, Malaysia, and India), and resolving international commercial disputes. As a Mediation Advocate, I approach doing a deal in settlement of a commercial dispute with the benefit of that commercial experience and can apply a degree of ‘nous’. As a Mediator, I can also use my ‘commercial’ antennae to help parties re-frame their dispute as an opportunity.

For anybody who is interested in the study, teaching and practice of ‘International Dispute Settlement’, at the foot of the ‘International Dispute Settlement’ page at www.carlislam.co.uk, I have also set out a Research Bibliography for my next book, ‘International Dispute Settlement’ – which I will start to write in 2025.

My copy of ‘Beyond Machiavelli – Tools For Coping With Conflict’ was handed to me and signed by the late Professor Roger Fisher at the end of a two hour one-on-one conversation with him, in his study at Harvard Law School, during a short research visit as a Scholar from King’s College London to Harvard University in April 2002. His parting words to me were:

‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’

As an SCMA Accredited Mediation Advocate and CMC Registered Mediator, I abide by the wisdom of Professor Fisher. This is how you achieve a ‘break-through’ moment in any negotiation/Mediation. I commend his books to all students and practitioners of Mediation and International Dispute Settlement.

‘International Dispute Resolution – Research Bibliography.’

For anybody interested in the study, teaching and practice of ‘International Dispute Resolution’, I have set out my current Research Bibliography (which I will periodically update), at the foot of the ‘International Dispute Resolution’ page at www.carlislam.co.uk.

This includes a number of titles about Cultural Property disputes and international dispute settlement, which I read while studying for the Diploma in Art Law course at the Institute of Art & Law between 2020 and 2023.

For my course essay ‘Mediation of Cultural Property Disputes’, and the following supplementary Tables:
– ‘Ethical Principles’;
– ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution’; and
– ‘Tools & Precedents’,
please visit the ‘Cultural Property Claims & Duties of Museum Trustees’ page at www.carlislam.co.uk.

‘Golden Rule in Commercial Mediation.’

That is the title of my next article, which the editor at the Law Society Gazette informed me today, has been accepted for publication. I will post a link on LinkedIn & on the ‘Publications’ page of my website www.carlislam.co.uk following online publication in the Law Society Gazette. For a global audience, the CMC with the pemission of the Law Society Gazette, are also re-publishing on their website, my article – ‘Commercial Mediation of Music Disputes’, which was first published in the Law Society Gazette 01.12.2023. See also the ‘Mediation of Music Disputes’ page at www.carlislam.co.uk which contains a longer version, with links to source material.

‘2+2 = 7!’

That is the magic of Mediation!

Actually, I think that in some cases it may be more than 7.

When I woke up the song – ‘Guantanamera’ was going around in circles in my mind.

The lyrics in the song – ‘Yo soy un hombre sincero. De donde crece la palma’ mean – ‘I am a truthful man from the land of the palm tree.’‘I am a truthful man from the land of the palm trees.’

Well I have always thought so, however there are no Palm Trees in Leicester & Newcastle!

It didn’t sound like the Gypsy Kings – see: GİPSY KİNGS ♥GUANTANAMERA♥ (youtube.com)

It was a dream.

There were Flamenco dancers and at one point in the dream a small group of Mexican Mariachi musicians appeared playing guitarróns accompanied by trumpeteers who at as the song reached its crescendo swayed in unison to the left.

What I heard in my head though was not ‘Guantanamera.’ It was Quanta Media!’

So, that got me thinking – which is timely, because this morning I am starting the 7 day process of completing the ADR Chapter of my forthcoming book – the 2nd Ed of the ‘Contentious Probate Handbook’ for the Law Society – which for all I know, probably does quite well, way down south, down Mexico way?¡Olé!

Anyway, the writer’s Muse has returned – which is what all authors pray for.

So – how can ‘2+2 = 7’ in the Mediation of an Estate Dispute?

1.  It eliminates anxiety by avoiding litigation risk.
2.  It preserves the capital value of the estate by avoiding the unnecessary incurrence of litigation costs.
3.  Participants can negotiate a deal on terms which no court has the power to order.
4.  It expands the size of the Estate through tax-efficient post death re-engineering.
5.  If an estate include qualifying heritage – art is saved for the nation.
6.  Sometimes – not always! – it can preserve family relationships for future generations.
7.  Putting the past behind you & moving-on with your life – i.e. dancing the Rumba instead of fighting – ¡Olé!

What other benefits occur to you? – I would be interested in hearing your views.

If my editor is reading this she need not worry, because I am not going to refer to any dreams about mediation in the book. However, I can’t help thinking that ‘Mediation’ is the dream solution to a bitter internercine estate dispute.

Now it’s Saturday – so, back to Rumba & La Duende ! – see: GLOSSARY OF BASIC FLAMENCO TERMS (newcastleflamencodance.com)

To lighten your load this weekend I also recommend that you Google – Gipsy Kings – Bamboléo (Official Video) (youtube.com)

You may also welcome the sheer joy of how they celebrate ‘Guantanamera’ in La Cuba – Guantanamera | Playing For Change | Song Around The World (youtube.com)

So – ‘Volaré, oh, oh

Cantaré, oh, oh, oh, oh

Nel blu dipinto di blu

Felice di stare lassu!’

See: Gipsy Kings – Volare (Official Video) (youtube.com)

& 1 more! – La Bamba | Playing For Change | Song Around The World (youtube.com)

Viva mediation!

And if you are ready for one more – Herb Alpert & The Tijuana Brass “A Taste Of Honey” on The Ed Sullivan Show (youtube.com)

Finally for the authentic Mariachi sound of Mexico – I invite you to listen to ‘Guantanamera by Los Caballeros’ – just Google those words + Youtube. Guantanamera (youtube.com)

‘In the UK what is the legal relationship between a person who consigns goods for auction and an auctioneer?’

·        The sale contract is concluded between the buyer & the seller through the intermediary of the auction house [‘A’].

·        The seller is the auctioneer’s consignor [‘C’].

·        The seller and C are one person, irrespective of who might be the ultimate beneficiary of the transaction.

·        A is the agent of C.

·        Therefore, unlike a sale contract which has two parties, the contractual structure in an auction is tripartite.

·        The appointment by C of A as agent takes the form of contractual agreement known as an ‘agency agreement’, between A & C.

·        This agreement is known variously, as the ‘seller’s agreement’, the ‘consignment agreement’ or the ’agency agreement’.

·        The principal purpose of the agreement is to set out what A is authorised by C to do and what the limits of that authorisation are.

·        Each auctioneer will have a standard agreement which the seller will be asked to sign, appointing the auctioneer at the seller’s agent.

·        So: (i) an artwork is said to be consigned when the seller commits to entrust it to an auction house; (ii) the terms on which he or she agrees to do this are contained in the auction house’s seller’s agreement; and (iii) the ‘seller’s agreement’, is the legal document through which the seller appoints the auction house as his or her agent to market and sell his or her artwork at auction.

·        In addition to the express conditions of the agency agreement, conditions are implied by law and custom.

·        An agent is the fiduciary of the principal.

·        A as bailee, is under a duty to take all reasonable care of goods, and to handle them in accordance with any express instructions given by the bailor.

·        Therefore, subject to the terms of the agency agreement, A will be liable for any damage to or loss of the property caused by a failure to take reasonable care of the property or by handling the property in a way which is not consistent with the instructions given to him or her by the bailor, i.e. C.

·        The agency contract with A is a ‘contract for the supply of a service’ under section 12 of the Supply of Goods and Services Act 1982.

·        It is the duty of A to ensure that a binding contract of sale is created between C and the purchaser.

·        Where A carelessly fails to bring about such a contract he will be liable in negligence, e.g. by failing to notice or take a bid from a willing bidder, or where A conducts an auction in such a way that mistakes are made by the parties involved which allows them to avoid the agreement, Friedrich v A Monnickendam Ltd [1973].

·        If A describes the goods inaccurately then C will be strictly liable under section 13 of the Sale of Goods Act 1979 [‘SGA 1979’], and insofar as the misdescription resulted from A’s negligence, A will be obliged to indemnify C against any loss.

See also: