Zoë Barton KC

Trusts, probate and estates: contentious

Zoë’s private client work often concerns high-net worth individuals and associated trust and corporate structures both onshore and offshore, including contentious probate claims. Common themes include protecting or attacking express trusts (or their trustees), breach of trust and fiduciary duty, the taking of accounts and equitable compensation.

An area of particular specialisation of Zoë’s is acting in claims relating to dead bodies, which raise interesting issues of jurisdiction and as to the appropriate manner of disposal in light of the deceased’s wishes.

Zoë regularly contributes to conferences and journals in this area and has been published in Trusts & Trustees.

Examples of Zoë’s related work include:

• Acting for trustees in respect of a claim that they acted in breach of duty by reason of ‘inadequate deliberation’ in the exercise of their powers in their distribution of a death in service lump sum.
• Advising trustees in Jersey in light of provisions regarding repayment in loan agreements as to whether monies received by them from beneficiaries were properly to be described as repayment of loans together with rolled up interest or whether repayment was waived.
• Advising both asset owners (including trust and corporate entities) and parties to marriages in respect of whether a particular asset might be said to constitute a nuptial settlement or financial resource within the meaning of the Matrimonial Causes Act 1973.
• Acting for a charity in a claim as to the validity of a contract for the sale of land governed by the Charities Act 2011.
• Advising in respect of a claim for the removal of a professional Manx trustee of employee benefit trusts for failure to consider the exercise of his powers.
• Acting in a claim concerned with the possession of a dead person by various parties, including family members and Questions as to proper extent of the limited grant, passing over and appropriate arrangements for a funeral.
• Advising in respect of the devolution of land in the Bahamas and, in particular, whether a devise of it by a will in the 1890s created a fee tail and otherwise the identity of the heir through the generations and the effect of various grants of letters of administration.
• Acting in a claim which concerned the ownership of assets categorised either as choses in action or chattels which were said to have passed on an intestacy of a Greek domiciled individual resident in this jurisdiction.
• Acting in disputes concerning rival claims between trustees of trust assets and insolvency practitioners seeking to attack such trusts to establish claims in favour of a creditor class, and vice versa.
• Advising in connection with the death of a Russian businessman who had been pursued for embezzlement by the Russian authorities as to the status of various individuals claiming to owners of shares in BVI companies and / or beneficiaries of trusts whose assets included BVI shareholdings.
• Chancery division trials for revocation of grants and obtaining grants in solemn form in the context of vitiating factors (e.g. mental incapacity, want of knowledge and approval, undue influence).
• Advising as to the validity of testamentary instruments in the context of proper execution of the whole or amendments, inter vivos revocations of a testamentary instrument, copy wills where the original is lost and related Chancery division trial.
• Advising a beneficiary in respect of the incomplete administration of an estate in Barbados where the deceased died over 30 years ago and his executor, domiciled here and suspected of maladministration, has since died.
• Advising in claims against solicitors in respect of monies held by them in client accounts and wrongfully paid away.
• Removal and substitution of personal representatives and trustees.
• Advising and appearing in disputes in respect of rights of possession to the body of the deceased.
• Acting in claims for accounts in common form and on the footing of wilful default, including against professionals such as those brought by principals against agents (such as solicitors and estate management agents) in a commercial context.
• Appeared for personal representatives appointed in substitution of a brother who had obtained a grant of letters in respect of the deceased’s estate on the basis of an intestacy in proceedings for breach of trust and of fiduciary duty against that brother and obtaining freezing injunction and Bankers Trust orders to locate estate’s assets.
• A modern decision as to the ambit of the costs protection afforded to a party requiring a will be proved in solemn form pursuant to CPR 57.7 (Re Jordan / Elliott v Simmonds [2016] EWHC 962 (Ch)).
• Trial of a claim to admit to probate in form of law the will of a millionaire whose daughter, dubbed ‘secret’ by the tabloid press, required it to be proved in solemn form but brought no counterclaim (Re Jordan / Elliott v Simmonds [2016] EWHC 732 (Ch)).
• Trial of claim by executors as to the proper construction of a mirror will and rectification of a charitable gift in a case where a professionally drafted will had contained several errors and omissions (Re Harte [2015] EWHC 2351 (Ch) [2015] WTLR 1835).
• Trials seeking determination of questions as to the extent of estate or trust assets, for example, where assets which are said to be held on trust or subject to an equity by reason of proprietary estoppel.
• Trial of an application to extend the power of advancement to the whole of a settlement pursuant to 57 of Trustee Act 1925 to permit in specie transfer of capital to the remaindermen where trust held non-income producing shares, alternatively pursuant to the Variation of Trusts Act 1958 as among one class of beneficiaries were unborn children.
• Actions concerning priority of kin, often where there are questions in respect of parental and sibling relationships and concerning presumptions in respect of marriages and birth certificates and raising questions as to the availability of scientific testing.
• Obtaining at trial an account on the footing of wilful default and substitutive performance by a trustee of a trust fund dissipated in breach of trust and fiduciary duty for the beneficiary children.
• Advising in respect of the proper application of proceeds of life assurance policies, including under the Married Women’s Property Act 1882.
• Seeking vesting orders and appointment of trustees in respect of land.
• Advising several charity residuary beneficiaries in respect of a claim concerning the sale of the deceased’s principal asset during the administration, a large estate, in particular the availability of tracing and following by the claimants to recover the £1.8m received by the charities under the will in the event of the claim succeeding.
• Trials in claims for reasonable financial provision under the 1975 Act.
• Acting in a claim by an estate in its administration and to recover possession of a property occupied by a convicted criminal son of the deceased who asserts a beneficial interest and that he has the benefit of a tenancy.
• Obtaining judgment for a firm of solicitors for their fees as a result of a particular lien over the beneficial interest of their former client’s share in the estate of a deceased on the basis that the share was obtained by the fruits of their labour in a contested probate action.

Download Trusts, probate and estates: contentious CV

Civil fraud and asset recovery

A common thread in Zoë’s cases is an allegation of fraud, where being able to establish or challenge proprietary interests and set up or attack trusts structures is often of central importance and to which Zoë is able to bring her significant technical expertise in other practice areas to bear.

Her instructions involve a wide range of frauds and frequently include breaches of duty by fiduciaries, challenging antecedent transactions in insolvency, asset tracing and often concern the laws of multiple jurisdictions (including BVI, Gibraltar, states in the USA, Liberia) and raise conflict of laws issues.

Disputes also frequently involve heavily contested interim or ancillary applications, such as for freezing injunctions, proprietary injunctions, non-party disclosure or challenges to jurisdiction. Zoë has accepted invitations to speak at Thought Leaders 4 Fire and R3 Restructuring Week.

Examples of Zoë’s related work include:

• Acting for company created to be the investor-owned freeholder of a hotel in which the rooms were sold to investors in connection with the retention of a significant part of the hotel by the developer.
• Acting for claimant in commodities brokerage dispute whereby payments of commission were unpaid, obtaining 3^rd party disclosure orders in connection with apparent breach of freezing injunction and joining of Chabra defendant.
• Acting for a defendant which purchased land previously sold by a conditional contract to the claimant, which alleges that the opportunity came to the purchaser via the use of confidential information in breach of an investment management agreement. The defendant faces claims in inducing breach of contract, unlawful means conspiracy, dishonest assistance and knowing receipt.
• Acting for a betting agent domiciled in Gibraltar in claims brought by the spouse of a gambling addict who gambled monies he obtained by fraud, in which she claimed an interest, with online gambling Defending claims in unjust enrichment and accessory liability (dishonest assistance, knowing receipt) for receipt of gambled monies. Advising as to jurisdiction challenge and the true scope of tort, delict and quasi-delict under the European regime.
• Acting for a claimant company in invoicing fraud perpetuated by employees, agents and suppliers of the company for 20 odd years whereby they falsely inflated supplier invoices, with the inflated portion being shared between the supplier and agent / Unlawful means conspiracy and bribery claims were pursued and resulted in settlement at mediation.
• Acting for a guarantor alleged to be liable under a guarantee agreement in connection with a loan agreement by which a joint venture business borrowed Issues included fraudulent misrepresentation, whether the loan agreement was binding and the enforceability of a guarantee in light execution by some only of the named parties.
• Appearing on behalf of applicant in letters rogatory request in support of proceedings in Florida valued at $80m and which concerned threats to life following allegations of the maladministration of an estate in Barbados (from which no distributions were ever made, save to the executor himself fraudulently) over a period of more than 30 years.
• Acting in proceedings concerning the true ownership of various family business assets in a largely informally run family business upon the falling out of various brothers who were co-owners. Arguments concerning authenticity of documents, alleged resulting and constructive trusts, proprietary estoppel and unfair prejudice.
• Defending a fraud claim brought by the former F1 boss, Ron Dennis, in relation to a £100m odd project whereby he was to acquire land for the development of a modern country house estate by Mike Spink, the renowned developer of prestigious ‘superhomes’. Dennis sought rescission of contracts for the sale of the land and for design services arguing they were interconnected transactions.
• Acting in a successful jurisdiction challenge for a BVI domiciled client where the claimant sought the return of a multimillion-pound asset which had been sold by a receiver and subsequently sold on to the BVI Successfully demonstrated that the Court had wrongly permitted service out of the jurisdiction without the claimant satisfying the requisite test as regards the underlying merits of the claim.
• Advising in connection with the death of a Russian businessman who had been pursued for embezzlement by the Russian authorities as to the true ownership of BVI company shareholdings and possible challenges that might be made to that ownership.
• Acting for the liquidators of a company which had operated an unlawful collective investment scheme and been made subject to public interest winding-up. Advising as to viable causes of action including as against professionals who received investors’ monies for the fraudulent scheme on the basis of a Quincecare duty and establishing possible assets including by challenging the release of charges by the company for no money.
• Claim for non-party disclosure against a bank in connection with account documentation and instructions (as distinct from account statements) and in particular, ultimate beneficial ownership declarations, to assist in claim where the true ownership of various companies was in issue.
• Acting in a factually and legally complex multi-party dispute between members of a Greek shipping family as to the ownership of Liberian corporations, the validity of the actions of those corporations (including fraudulent changes to issued bearer shares, articles and directors), question of vires as to contracts entered into by the corporations and disguised distributions of capital.
• Instructed in a jurisdiction challenge in respect of a claim against a Swiss domiciled defendant and issues as to effective service.
• Acting in a claim regarding an alleged transaction to defraud creditors by the grant of an overriding lease, in particular as to whether the price was the fair market value.
• Advising as the best use of proceedings in multiple jurisdictions (including in the USA where there claims included a RICO element) in attempts to ultimately obtain judgments against individuals with assets in this jurisdiction understood to be connected with the claims in fraud overseas.
• Acting in claims often in the context of insolvency, including as to possible 423 claims, typically in connection with property assets and / or assets alleged to be held in trust.
• Acting in a claim concerning the enforcement by a lender of security over land in Dubai raising issues as to conflict of laws and the application of Golden Victory to the assessment of damages, assertions as to which ranged between nominal and $2billion.
• Acting for a claimant in the recovery of an asset he had transferred to a blackmailer who had threatened to reveal their homosexual relationship to the claimant’s family and prominent members of his religious community; importantly, anonymity was maintained for the claimant, his name not appearing even on the face of proceedings.
• Claims concerning the enforceability of charges and personal guarantees, including successfully resisting summary judgment on the basis of prima facie evidence of fraud affecting another agreement entered into at a similar time by the same parties, which required the further investigation of the court (a rare application of Miles v Bull).
• Acting for an investment vehicle in dispute with a US Court appointed receiver in respect of the control of investment fund monies paid into Court in England against the backdrop of allegations of fraud and an investigation by the US Commodity Futures Trading Commission.

Download Civil fraud and asset recovery CV

Professional liability

Zoë draws on her considerable expertise in general commercial transactions, trusts and property issues to effectively handle complex and sophisticated professional negligence disputes. She has the benefit of acting regularly for both claimants and defendants and also acts in insurance coverage disputes.

Whether she acts for disappointed beneficiaries in a claim arising out of the drafting of a will, a lender concerning fraudulent property transactions, Zoë can act in both in the underlying dispute and the related claims against negligent professionals such as solicitors and valuers.

Examples of Zoë’s related work include:

• Advising a group of potential claimants against a licensed conveyancer in connection with a compromise between insurer and insured of an insurance coverage dispute shortly prior to the statutory transfer of rights in them pursuant to the Third Parties (Rights Against Insurers) Act 2010.
• Acting for two prominent housebuilders in connection with the drafting of option agreements over a very large site in Oxfordshire and subsequent advice.
• Advising a firm of solicitors in respect of service of a lease break notice by incoming landlord prior to registration of its interest at HM Land Registry.
• Acting for a charity in connection with putative claims against solicitors and surveyors in relation to their advice as to the sale of land by a charity, which sale was later alleged to be void.
• Acting for purchasers of land who claimed that they were not appropriately advised as a proposed substantial redevelopment neighbouring the home they Issues as to scope of duty and extent of advice.
• Acting for liquidators appointed in respect of a number of companies conducting fraudulent collective investment schemes in which investors’ monies were held by solicitors and then paid out of their client accounts in breach of Solicitors’ Account Rules and to make payments to 3rd parties apparently unconnected with the investment vehicles.
• Acting for solicitors in a claim alleging that the firm was tainted by undue influence or fraud over a client by her partner that vitiated their retainer and various allegations of breach of Solicitors’ Code of Successfully struck out the claim and upheld on appeal.
• Acting for a developer in connection with solicitor’s advice as to the extent of a right of way.
• Advising a firm of solicitors where a positive covenant in respect of clawback payments was not properly protected before the client entered into a contract for sale such that the burden of the clawback payments will not pass and remain hers alone.
• Acting for a claimant in a claim against a firm of solicitors on behalf of the estate of the deceased where the firm failed to advise severance of the joint tenancy of a property, such that there were insufficient assets for the nil-rate band trust in the will the firm drafted.
• Acting for a firm of solicitors in defending a claim arising out of the alleged failure to advise against sale of a property in the context where the sale exposed the proceeds to be diminished by care home fees.
• Acting for a firm of solicitors in defending a claim arising out of the purchase of a multimillion-pound property in the context of poor quality works by the developer who refurbished and converted it and the purchasers’ claim against the surveyor who reported.
• Acting for a purchaser of a property in respect of a solicitor’s failure to advise in respect of multiple dwellings relief in SDLT.
• Successful strike-out and summary judgment application dismissing the claimant’s claim against solicitors instructed in the administration of an estate, which the executrix had thought insolvent, concerning date of knowledge for limitation and the effect of a vesting order in respect of a beneficial interest in a property in the proper administration of an estate.
• Acting in numerous claims concerning ineffective property notices.
• Acting in claim against solicitors for failure to advise one of three lay clients, two business partners and the spouse of one of them, where there were numerous conflicts of interests between them.
• Advising as to possible negligence of a solicitor in respect of a failure to advise properly concerning her duties as executrix.
• Advising an insured in respect of allegations of recklessly condoning a fraudulent act (namely reverse frauds and imposter frauds) in conveyancing transactions in the context of withdrawal of cover by the insurer.

Download Professional liability CV

Domestic arbitration

Zoë is a member of the Chartered Institute of Arbitrators, giving her a particular insight into the process. She is predictably well-placed to assist in arbitrations and other forms of ADR. This includes acting in expert determinations as an expert in her relevant fields and as which she accepts instructions. Zoë has found that both expert determinations and arbitrations can be particularly well-suited to property-related disputes concerning questions of construction or where there are ongoing commercial relationships between the parties that need to be maintained. She also has experience of advising in respect of the enforceability of arbitration awards, the Courts’ supportive role in arbitrations and the Arbitration Act 1996 generally.

Zoë has been instructed to assist clients in dozens of mediations and (perhaps unusually for a member of her profession) has been described as useful to the process by a mediator on more than one occasion. This is doubtless because she appreciates when the resolution of disputes other than at trial is an important client objective (whether because her client wishes to obtain something that the Court is not capable of awarding or to salvage a commercial or personal relationship) and adapts her style to best pursue those aims: deploying the forensic, advocacy and drafting skills which can benefit a mediation, whilst able to refrain from dominating the process, keeping it client-centred.

Download Domestic arbitration CV