The High Court has recently given judgment in the case of Phoenix v Phoenix - a dispute between two farming brothers regarding the terms of their late mother’s will.
It was somewhat unusual in that the issue of dispute arose over whether one brother had complied with the terms of the will when exercising an option to purchase the farm from the other.
was left to the brothers in equal shares, but gave one brother, Philip (who
farmed the land) the right to purchase the other’s (David) share at a
argued that Philip had failed to exercise his option properly and as such he
was not required to sell him the farm at a discount. Instead he applied
for an order that the farm be sold and the proceeds split equally.
provided that in order for Philip to exercise his option, he must give “notice
in writing to his trustees”. The issue turned on whether Philip’s notice
exercising his option to purchase David’s share was validly served in
accordance with the terms of the will. He handed a notice (addressed to
The Trustees) to his mother’s Solicitor (who was a professional trustee and
executor of the estate). However, he did not give notice to his brother
David, who along with Philip, was also a trustee and executor of the
estate. David argued that he had not been served and therefore Philip had
not validly exercised the option.
The arguments raised by the legal teams were detailed and technical and came down to interpretation of the wording within the will. Taking all of the factors into account the Judge decided that the notice had been validly served and that Philip had exercised his option. The reasons give collectively amounted to “business common sense” to the effect that only one notice needed to be given and that the professional trustee was the appropriate person to give that notice to.
For such a small issue, the difference between the amount Philip would have had to pay David was somewhere in the region of £780,000, therefore it was clearly of significance to both parties.
It signifies the importance of paying particular attention to the terms that need to be complied with and reminds us perhaps to adopt a “belt and braces” approach if there is any uncertainty about what you need to do. Whilst Philip believed that he had done all that was necessary in only giving notice to the Solicitor, if he had given David a copy then David would have had no grounds to argue as he did.
If you would like some information or advice on this subject, please contact Suzie Fisher on Suzie.Fisher@thwegal.co.uk See below for full details of the case.
Published 25 June 2020
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