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Michael Ashdown

Call: 2013   

+44 (0)20 7306 0102mashdown@wilberforce.co.uk

Trusts, Tax, Probate & Estates

Michael has a busy traditional chancery practice across all aspects of trusts, probate and estates, together with related aspects of private client tax. He is often instructed as sole counsel on both contentious and advisory matters, including those with a foreign element, but is equally happy working as part of a team in  substantial disputes. He is often instructed to appear as sole counsel before the High Court, but also has substantial experience of acting as a mediation advocate, and is always pleased to achieve a negotiated settlement for clients who wish to avoid the cost, risk or publicity attendant upon litigation.

Michael was recognised by the Legal Week Private Client Global Elite 2018 as “One to Watch”.

Prior to coming to the Bar, Michael spent six years as a trusts law academic, as Fellow & Tutor in  law at Somerville College, Oxford. He has written widely on the law of trusts, and his published work includes the first book on the so-called “rule in Re Hastings-Bass” following the decision of the Supreme Court in Pitt v Holt [2013] UKSC 26: Trustee Decision Making: The Rule in Re Hastings-Bass (OUP 2015).

Michael’s trusts experience includes:

  • FSCS and others v Estera Corporate Trustees (Guernsey) Ltd. Acting for a Guernsey trustee company in relation to claims for breach of trust, breach of fiduciary duty and negligence arising from the failure of the Freedom Bay resort development in St Lucia (with John Wardell QC).
  • Acting (as sole counsel) for a minor beneficiary in two sets of contested High Court  proceedings, first pursuant to Schmidt v Rosewood Trust Ltd to obtain trust accounts and other information to explain the diminution of the trust fund, and secondly to remove and replace the  existing trustees. Then acting as mediation advocate for the same client in successfully settling breach of trust proceedings against the former trustees.
  • Acting (as sole counsel) in High Court proceedings for a beneficiary seeking to establish his entitlement to a half share in a substantial trust fund, and to value and realise that share.
  • Advising on and drafting proceedings before the BVI Commercial Court in relation to extending the powers conferred on a trustee, and authorising trustee remuneration.
  • Acting for the claimant commercial fisherman in a High Court dispute as to whether a fishing vessel and fishing licence are held on constructive or resulting trusts arising from their registration in the name of the defendant.
  • Advising on a wide variety of questions arising from the creation and administration of the trusts of a large landed estate. These included the rights of a life tenant to both valuable chattels and real property, the exclusion of beneficiaries, issues arising from earlier IHT planning and previous settlements, and possible breach of trust and removal claims against trustees.
  • Advising on the removal of a trustee and claims for breach of trust, for inspection of trust documents, and for the sale of the trust property, in the context of an acrimonious family dispute.
  • Acting for a co-owner of residential property in a dispute concerning the validity of a notice of severance and the trusts upon which the properties were held.
  • Appearing as mediation advocate in a substantial family trust dispute concerning alleged misappropriation of trust investments.
  • Appearing as mediation advocate in a family trust dispute concerning failure to invest substantial sums and misappropriation of trust assets
  • Advising the trustees of a charity for the provision of accommodation to those in need in relation to the public benefit requirement and the operation of the charity.
  • Advising a Community Benefit Society in relation to the trusts upon which it holds its funds and whether they must be returned to donors.
  • Advising on the taking of trust accounts in the context of substantial insolvency proceedings
  • Advising trustees of a will trust on the purchase of residential property overseas.
  • Advising on ensuring the validity and enforceability of a substantial gift.
  • Advising on applications to remove a trustee and under the Variation of Trusts Act 1958.

Michael’s probate and estates experience includes:

  • Advising on, drafting and successfully settling claims brought by the administrator of a deceased’s estate against both previous sets of professional personal representatives for the negligent administration of the estate, overpayments made to beneficiaries, and the assessment under the Solicitors Act 1974 of fees paid out of the estate.
  • Acting for the deceased’s son in linked claims to substitute personal representatives in respect of one estate, and to obtain a grant of probate in a second, against a background of allegations of forgery of a will.
  • Acting for executors in a dispute about the validity of a deed of variation and the scope of trustees’ powers of appointment.
  • Appearing as mediation advocate in a probate dispute concerning lack of testamentary capacity and knowledge and approval.
  • Advising executors on the construction of an Isle of Man trust, and possible claims for rectification or under the Inheritance (Provision for Family of Dependants) Act 1975 by a disappointed beneficiary.
  • Advising executors on claims for undue influence, breach of duty as an attorney, and removal as an executor against their sibling and co-executor.
  • Advising on the construction of ambiguously drafted will trusts where difficulties arose 40 years after the death of the testatrix.
  • Advising on the construction of poorly drafted and internally contradictory wills, and on possible challenges to their validity.
  • Advising on and drafting proceedings for an account and inventory.
  • Advising on and drafting proceedings for a subpoena to bring in a will and other testamentary documents.
  • Advising on and drafting proceedings in contentious probate claims concerning allegations of lack of capacity, duress and undue influence.

Michael has particular experience of acting as sole counsel for both claimants and defendants under the Inheritance (Provision for Family of Dependants) Act 1975, including acting for common law spouses and both adult and minor children, in estates ranging from the very small to those exceeding £10 million.

He has appeared in the High Court in 1975 Act claims, but also has significant experience of settling such disputes via mediation and negotiation, and often appears as a mediation advocate. He also has experience of advising on 1975 Act claims with a substantial foreign element, and where the validity of marriages, civil partnerships and divorces (whether foreign or domestic) is called into question.

Michael’s experience of claims under the Inheritance (Provision for Family of Dependants) Act 1975 includes:

  • Advising the defendant administrator on claims under the under the Inheritance (Provision for Family of Dependants) Act 1975 concerning overseas property, the validity of UK and foreign marriages and divorces by both claimant and deceased, and the recognition in England of foreign polygamous marriage.
  • Advising on the implication of a foreign de facto relationship on a claim under the Inheritance (Provision for Family of Dependants) Act 1975, and on whether persons who live apart can qualify as cohabitants.
  • Acting for the defendant executor in a High Court claim by an adult child of the deceased under the Inheritance (Provision for Family of Dependants) Act 1975, including successfully defending the claimant’s contention that the dispute had in fact been settled on terms favourable to the claimant.
  • Advising on a claim under the Inheritance (Provision for Family of Dependants) Act 1975 by a parent against the estate of their deceased child.

Michael’s private client tax experience includes:

  • Advising on the IHT consequences of property comprised in a “relevant property” settlement also being treated as a gift with reservation of benefit.
  • Advising executors on the IHT consequence of a Deed of Variation (entered into more than two years after death) in connection with the settlement of an Inheritance Act dispute.
  • Advising trustees on the CGT consequences of their trust being exported to another jurisdiction.