Phoenix v Phoenix & Anor

Phoenix v Phoenix & Anor

The will, properly construed, provided for service of notice on the trustees at the address of the professional executor, and the claimant validly exercised the option by serving notice there. Interest is payable on unpaid instalments at 1% over base rate, as the will does not provide for interest on overdue instalments and the court's discretion applies.

Parties
Claimant: Philip John Phoenix; First Defendant: David Alan Phoenix; Second Defendant: Colin David Wright
Jurisdiction
England and Wales
Judgment Date
18 June 2020
Procedural Posture
Probate/trusts Dispute / Judgment After Trial
Outcome
Claim allowed; counterclaim for order for sale dismissed in substance; interest awarded on unpaid instalments.
Legal Topics
Exercise of Option Under Will, Interpretation of Testamentary Documents, Service of Notice, Interest on Unpaid Instalments
Succession Law Trusts and Estates Exercise of Option Under Will Interpretation of Testamentary Documents Service of Notice Interest on Unpaid Instalments

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Parties

Philip John Phoenix

Claimant

David Alan Phoenix

First Defendant

Colin David Wright

Second Defendant

Procedural Posture

Probate/trusts Dispute / Judgment After Trial

Legal Issues

  1. 1 Whether the claimant validly exercised the option under clause 5.3 of the will by serving notice at the address of the professional executor
  2. 2 Whether interest is payable on unpaid instalments and at what rate

Ratio Decidendi

The will, properly construed, provided for service of notice on the trustees at the address of the professional executor, and the claimant validly exercised the option by serving notice there. Interest is payable on unpaid instalments at 1% over base rate, as the will does not provide for interest on overdue instalments and the court's discretion applies.

Court Disposition

Claim allowed; counterclaim for order for sale dismissed in substance; interest awarded on unpaid instalments.

Orders

  • Declaration that the option under clause 5.3 was validly exercised by Philip John Phoenix
  • Interest on unpaid instalments to be paid at 1% over base rate for the relevant periods