Emma Holland

Stewarts Law

Emma assists beneficiaries, trustees, and other fiduciaries with trust disputes both onshore and in numerous offshore jurisdictions. Emma also specialises in probate disputes, and disputes overseen by the Court of Protection. Emma has been recognised as a Next Generation Lawyer (Legal 500 2018) and as a Top 35 Under 35 private client practitioner (eprivateclient 2016). Notable examples of work include advising (often alongside foreign law counsel): - discretionary beneficiaries of Bermudian trusts holding a construction business on family corporate governance, applications for approval of restructuring proposals and contentious tax. A Public Trustee v Cooper hearing took place in 2017 (Re X,Y,Z Trusts [2017] Sc (Bda) III Civ). - a beneficiary opposed to a trustee's proposal to sell a key trust asset, involving a jurisdiction challenge in Jersey (Representation of G Trustees Limited [2017] JRC 162A) and a trustee removal application in Bermuda (In the Matter of the E Trust [2017] SC (Bda) 103 Civ). - beneficiaries regarding the removal of a protector (In the matter of the K Trust, Guernsey Judgment 31/2015). - trustees in defending allegations of breach of trust through material non-disclosure (AB Jnr & Or v MB & Ors [2013] (1) CILR 1). - on jurisdiction relating to a succession dispute focusing on the friction between English testamentary freedom and Italian forced heirship rules (Durham v Lambton & Ors [2013] EWhC 3566 (Ch)). - on a contested health and welfare, and property and affairs, deputyship application, including the Local Authority's application relating to deprivation of liberty.

Practice Area

Private Client

Panels

Contributing Author
Q&A Panel

Qualified Year

2010

Membership

The Association of Contentious Trust and Probate Specialist
AIJA (International Association of Young Lawyers)

Education

Emma graduated from Exeter University having studied Law with European study in Italy.

2 Contributions by Emma Holland

PRACTICE NOTES

Challenging inter vivos dispositions affecting estates: capacity, undue influence, deathbed gifts, joint assets/resulting trusts, unconscionable bargains, attorneys/deputies, and PR obligations in England and Wales

The nature of disputes as to lifetime dispositions Where an estate proves to be less than expected, personal representatives (PRs) and beneficiaries frequently raise questions and concerns about transactions the deceased undertook while alive. These may encompass outright gifts, asset disposals apparently at an undervalue, loans on favourable terms, sole assets placed into joint names, and deathbed gifts. If an attorney or deputy managed the deceased’s affairs, enquiries may need to focus on their conduct as well. There are several grounds on which a lifetime disposition can be contested. Allegations may include: the deceased lacked capacity (including potential abuse by an attorney or deputy) the deceased was subjected to undue influence, and the criteria for a valid deathbed gift (donatio mortis causa) were not satisfied The test for capacity to make lifetime gifts and the burden of proof The common law test for mental capacity to make a lifetime gift is found in Re Beaney, and is characterised as an ability to understand rather than actual understanding: ‘…the question in...

Private Client

Q&As

Court of Protection: LPA attorney loan with 2% compound interest

It is not clear whether the donor holds a lasting power of attorney (LPA) for property and affairs (P&A), for health and welfare (H&W), or both. As attorneys have determined that the donor’s home should be sold (necessitating a P&A LPA) and that the donor should move into a care home (necessitating a H&W LPA), we proceed on the basis that both LPAs exist and have been registered. We also proceed on the basis that there is more than one attorney. Where authority to act is several rather than joint, the lending attorney may opt out of any decision in which they have a conflict of interests. It is further assumed that: the donor had adequate capacity to enter into the loan the LPAs do not include specific instructions or preferences about when the donor’s home is to be sold and/or when they are to enter a care home (if present, the attorneys should take them into account) the attorney who advanced the loan wishes to remain an attorney (disclaimer is not considered)...