James Egan

Probate & Will Disputes

James has extensive experience in advising, drafting, and representing parties in claims related to the validity of Wills and revocation of Grants, and claims brought against the estates of deceased persons. He is regularly instructed by both the personal representatives, beneficiaries and other interested third parties who may have an interest in the assets of the estate both in pre-action stages, in mediations and at all stages of litigation. His experience in this area includes:

• Advising on and drafting proceedings for potential claimants on testamentary challenges (including lack of capacity, want of knowledge and approval, undue influence and fraudulent calumny);
• Advising on and applying by way of originating summons to remove final caveats;
• Advising on and drafting section 116 Senior Courts Act 1981 passing-over proceedings;
• Advising on and representing beneficiaries in construction/rectification claims;
• Advising on and removing and defending personal representatives in removal claims (both onshore and offshore).
• Advising on and drafting proceedings to compel trustees to transfer assets to absolute beneficiaries;
• Applying for an account and inventory of estates;
• Advising on, drafting and recovering possession of the Deceased’s property;
• Advising on potential claims for an account of lifetime transfers allegedly procured through undue influence and/or non-compliance with the Code of Practice for LPAs;
• Advising on survivorship to joint bank accounts;
• Applying to rectify the register of members and appointing directors after the sole director/shareholder of a ‘Model A’ Articles of Association company has died;
• Advising on, drafting proceedings for and obtaining Cobden-Ramsay v Sutton Orders (including analogous orders for more other intimated but un-issued claims against estates);
• Advising on, drafting proceedings for and obtaining orders approving the final accounts where disputes have been raised by beneficiaries;

James is also instructed to advise in relation to offshore jurisdictions, including most recently in a trustee removal application in the Isle of Man.

Family Provision Claims

James has extensive experience in advising, drafting, and representing parties in claims brought pursuant to the Inheritance (Provision for Family & Dependents) Act 1975, whether brought as a freestanding claim or intimated as an initial ‘defence’ to a claim for possession brought by the personal representatives against the occupier of a property falling within the Deceased’s estate. James is regularly asked to advise and represent personal representatives, beneficiaries and applicants both at pre-action, mediations and at all stages of the litigation.

Prior to joining Ten Old Square, James enjoyed pupillage at a leading ‘Band 1’ divorce chambers which gave him a specialist understanding of the mechanics and principles applied in the divorce context and this places him in an unrivalled position to be able to advise upon the application of the ‘divorce fiction’ under section 3(2) in spousal/civil partnership 1975 Act claims.

That said, James enjoys dealing with all ‘categories’ of 1975 Act claimant having advised, settled 1975 Act claims and represented spouses, former spouses, ‘deemed’ spousal claimants under section 14, cohabitants, dependents and children of the Deceased. James’s experience in this area covers estates of all values, from more modest estates through to those valued in the several millions of pounds.

James has particular experience in dealing with claims where jointly owned assets have passed outside the Deceased’s estate by survivorship and seeking orders that the severable share be treated as part of the net estate under section 9. Similarly, advising upon whether nominated pensions benefits are capable of falling within the Deceased’s estate under section 8.

James’s practical and commercial approach to 1975 Act cases often means he is asked to review settlement offers and prepare draft offers/counteroffers, as well as (once agreement has been reached) preparing or reviewing Deeds of Settlement and/or Deeds of Variation.

As many 1975 Act claims involve beneficiaries who may be children and/or protected parties, James is familiar with drafting and obtaining approval applications under CPR 21.10 for compromises which affect any children or protected parties.

James is also willing to consider acting on a Conditional Fee Agreement (‘CFA’) in these contexts.

Trusts

James enjoys dealing with all aspects of trusts disputes, whether those trusts are trusts of land, will trusts, other express trusts (including Discretionary Trusts), and/or implied trusts such as constructive and resulting trusts. His recent experience includes:

• Advising and drafting TOLATA claims by both beneficiaries and trustees, including claims for occupational rent and/or enhanced beneficial interests under section 37 of the Matrimonial Proceedings and Property Act 1970;
• Advising on and drafting proceedings to secure the removal, replacement and/or substitution of trustees;
• Representing mortgagees-in-possession seeking to pay surplus proceeds of sale into Court pursuant to section 63 of the Trustee Act 1925;
• Advising on the operation of Discounted Discretionary Gift trusts in wills;
• Advising on equitable tracing and personal remedies for the recovery of misapplied trust monies;
• Advising on non-charitable purpose trusts;
• Advising on the applicable perpetuity period;
• Advising on entitlement to ‘trust assets’ where the trust was void ab initio or otherwise failed.