James Kirby

James frequently advises and represents clients in disputes relating to wills, trusts, estates and other private client matters.

Recent cases include:

• TOLATA disputes, including:
  • B v Z: Representing the claimant in a 3-day trial at Central London County Court concerning the beneficial ownership and sale of a property formerly owned by the client’s deceased parents. The claim received media coverage in national newspapers.
  • G v G: Striking out a TOLATA claim over a family home as an abuse of process in light of related family court proceedings (and representing the client successfully on appeal).
• Probate claims:
  • R v R: Advising and representing the defendant at a CCMC in a probate claim concerning alleged undue influence (settled before trial).
• Offshore trust proceedings:
  • Drafting pleadings in claim concerning the management of an employee benefit trust.
  • Drafting skeleton argument, witness statements and summons in an application to set aside an anti-suit injunction.
• Removal of executors and trustees:
  • Re E: Representing the claimant at final hearing of an application to remove an executor who had failed to administer the estate.
• Interpretation and rectification of wills:
  • Re D: Advice and drafting claim for admission of will to probate where conditional revocation clause caused uncertainty as to its validity.
  • Re V: Drafting Part 8 claim for rectification of a will which failed to dispose of the entire residuary estate.
• Claims under the Inheritance (Provision for Family and Dependants) Act 1975:
  • Re B: Representing the defendant at a financial dispute resolution hearing in Central London County Court.
• Mutual will disputes:
  • Re H: Advice and drafting statements of case in a mutual wills claim.
  • Re G: Advice to executors caught up in a mutual wills dispute (settled).
• Other:
  • Hinduja v Hinduja [2020] EWHC 1533 (Ch) [2020] 4 WLR 93: Representing the applicant in a contested application for the appointment of a litigation friend (led by Eason Rajah KC and Georgia Bedworth).
  • Representing the claimant in a claim for a division of chattels under s.188 of the Law of Property Act 1925.

James regularly advises trustees, personal representatives and beneficiaries on matters concerning trusts and estates, including tax matters. His experience includes:

• Variation of trusts:
  • Re T: Representing the minors in an application under the Variation of Trusts Act 1958.
  • Drafting deeds of variation.
  • Advising on tax issues arising from variation of trusts.
• Advising on the interpretation of wills, including:
  • Class gifts.
  • Charitable legacies and cy-près.
  • Effect of a conditional revocation clause.
• Advising personal representatives on the administration of estates.
• Drafting trust documents, including trust deeds, deeds of appointment and deeds of variation.

James is regularly instructed to act in Court of Protection disputes and to advise on issues relating to mental capacity. He is an editor of the Court of Protection Law Reports and answers ‘Questions for Counsel’ on mental capacity issues for Practical Law.

Recent highlights include:

• Re H: Representing the respondent in an expedited statutory will application involving a disputed will and allegations of undue influence (led by Richard Dew).
• Re A: Representing a deputy in an application for the calling in of a previous deputy’s bond on grounds of professional negligence.
• Re C: Representing the Official Solicitor in an application for an interim, and then final, statutory will.
• Representing the respondents in a complex and high-value property and affairs dispute (as junior counsel).

James is regularly instructed to advise on inheritance tax and capital gains tax issues arising in trusts and estates.

He has experience of tax litigation having acted for HMRC (as junior counsel) in tax appeals in the Upper Tribunal and First-tier Tribunal, including Odey Asset Management LLP v HMRC [2021] UKFTT 31 (TC) and HFFX LLP v HMRC [2021] UKFTT 36 (TC).

Issues on which James has advised include:

• Gifts with reservation of benefit.
• Pre-owned assets tax.
• Availability of charity exemption for gifts to overseas charities.
• Availability of residence nil-rate band (including late claims).
• Deductibility of liabilities.

James is also frequently instructed to draft trust documents with a tax planning element, such as deeds of appointment and deeds of variation. He has also been instructed in relation to the variation of trusts under the Variation of Trusts Act 1958.

James has a particular interest in the ownership and occupation of trust and estate property. His experience includes:

• B v Z: Representing the claimant in a 3-day trial at Central London County Court concerning the beneficial ownership and sale of a property formerly owned by the client’s deceased parents.
• G v G: Striking out a TOLATA claim over a family home as an abuse of process in light of related family court proceedings (and representing the client successfully on appeal).
• UBS AG v Rose Capital Ventures Ltd [2018] EWHC 3137 (Ch) [2019] 2 BCLC 47: mortgage possession claim (led by Jonathan Gavaghan)
• Re C Ltd: Application for land to be vested in a residents’ management company under s 181 of the Insolvency Act 1986.
• N v J: Interim possession order against trespassers.

James is regularly instructed to advise on issues of partnership and LLP law, especially in relation to trusts and estates. He has also acted as junior counsel in high-value LLP income tax appeals in the First-tier Tribunal (Tax Chamber): Odey Asset Management LLP v HMRC [2021] UKFTT 31 (TC) and HFFX LLP v HMRC [2021] UKFTT 36 (TC). Both cases raised significant points of partnership/LLP law concerning profit allocations and the nature of a member’s interest in an LLP.

James is regularly instructed to advise on issues of charity law, often in the context of wills, trusts, tax or property issues. His experience includes:

• Advising on whether a claim by a charity for an injunction constituted “charity proceedings” under s 115 of the Charities Act 2011.
• Advising on the interpretation and effect of charitable gifts in wills.
• Advising on the inheritance tax implications of a gift to a community benefit society.
• Advising on whether a substantial lifetime transfer to a foreign charity might qualify for an exemption from IHT.

Recent highlights include:

• Providing legal research, advice and drafting to a major financial institution on specialist trust and insolvency issues
• Applying successfully for a vesting order under section 181 of the Insolvency Act 1986
• Representing clients in winding up and bankruptcy petitions
• Assisting in drafting an application notice and skeleton argument for setting aside service of a freezing order out of the jurisdiction
• Representing a solicitor’s firm at a CCMC in a claim concerning unpaid legal fees