Proof required for mutual wills claim The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her will in a way which did not … Continue reading Ottaway v Norman: ChD 1971
The court retried an action disputing the validity of the will, new evidence having emerged post trial. The doubtful signature was explained by witnesses who said that he had been assisted. Held: The matter might have been handled better, but the testator knew the contents of his will, and signed it. Judges: Vos J Citations: … Continue reading Barrett v Bem and Others: ChD 19 May 2011
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence Judges: Saffmann HHJ Citations: [2017] EW Misc 12 (CC) Links: Bailii Statutes: Wills Act 1837 9 Jurisdiction: England and Wales Citing: Cited – Banks v Goodfellow QBD 6-Jul-1870 Test for Capacity to Execute WillThe testator … Continue reading Ram and Another v Chauhan and Another: Misc 19 Jul 2017
Citations: [1837] EngR 525, (1837) Donn Eq 194, (1837) 47 ER 316 (A) Links: Commonlii Jurisdiction: England and Wales Contract, Wills and Probate Updated: 22 October 2022; Ref: scu.313642
A witness to the execution of a will can acknowledge his own signature in the later presence of the second witness. Citations: Gazette 27-Mar-1996, Times 18-Mar-1996 Statutes: Wills Act 1837 9 Jurisdiction: England and Wales Wills and Probate Updated: 06 September 2022; Ref: scu.79569
The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One witness had now deposed that she had only added her signature after the … Continue reading Lim v Thompson: ChD 14 Oct 2009
The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence. Held: such letters were not admissible unless connected in evidence witb some act done by the testator. Citations: [1837] EngR … Continue reading Wright v Doe Dem Sandford Tatham: KBD 13 Jun 1837
The deceased had made a will providing for her daughter and charities. She became ill, and lost capacity, and then her daughter died. Her son applied for a statutory will. This was ordered and prepared, but she died before the court could confirm that it could be sealed. The son applied for an order allowing … Continue reading In Re Hughes Deceased: ChD 8 Jan 1999
T died in 1858, and by his will devised his estates on strict successive trusts, directing beneficiaries to take the surname and arms of Dick. Should a beneficiary fail to comply within three months, the bequest should fail for that person and pass to the next as if that person was deceased. After one tenant … Continue reading In Re Quinton Dick (orse Quintin Dick), Concurry (Lord) v Fenton: 1926
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which would have bound that parent? (2) If so, what is the effect of … Continue reading Naylor and Another v Barlow and Others: ChD 19 Jun 2019
A gift over had failed to take effect despite non-compliance with a condition subsequent requiring a village hall to be completed within a certain period of time because assets had not been saleable due to war conditions, making it impossible to build the hall. Unless he has said so ‘in words plain beyond peradventure’, a … Continue reading In Re Jones; Williams v Rowlands: ChD 1947
Where a will imposed an impossible condition on a gift in the will, then the condition is deemed to be spent, and the gift to be unconditional. Judges: HHJ Colyer QC Citations: Times 31-Oct-1995, Gazette 18-Oct-1995 Jurisdiction: England and Wales Cited by: Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019 ‘two interesting … Continue reading Watson v The National Children’s Home and Others: ChD 9 Oct 1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife. Held: The wills were in identical terms, but nevertheless, fell short of having full and explicit status as mutual … Continue reading Goodchild v Goodchild: ChD 13 Dec 1995
The testator, a divorcee had already made a will leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund. He died in 1963. His former wife survived him and claimed under the will. … Continue reading In Re Sinclair, deceased: CA 1985
Residuary legatees filed a bill against the executor and the surviving partner of the testator for an account of partnership transactions. Held: In the absence of a charge of fraud or collusion, there were no special circumstances justifying the legatees’ claim. Judges: Lord Langdale MR Citations: [1837] EngR 840, (1837) 2 Keen 534, (1837) 48 … Continue reading Davies v Davies: CA 12 Jun 1837
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. Judges: Lord Loughborough LC, Lord Camden L.C Citations: (1797) 3 Ves Jun 402, [1797] EngR 489, (1797) 3 Ves Jun 402, (1797) 30 ER 1076 Links: Commonlii Jurisdiction: England and Wales Citing: See Also – Lord … Continue reading Lord Walpole v Lord Orford: HL 1797
The testatrix had signed her name by the attestation clause before it was witnessed. Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her intention to give effect to the will, satisfied the UK law’s attestation requirements. The court is to … Continue reading Weatherhill v Pearce: ChD 7 Nov 1994
A witness to the will was to claim a benefit under it. The will had later been confirmed and altered in a codicil. Held: Section 15 did not apply so as to avoid the gift to the beneficiary, since the will, and the gift, had been confirmed by the later codicil which was not so … Continue reading Re Trotter: 1899
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Nourse J said: ‘The principle of all these cases is that a court of equity will not permit a person to whom property is … Continue reading In re Cleaver dec’d, Cleaver v Insley: ChD 1981
(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: ‘but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi- that is, that … Continue reading Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others: 1946
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the … Continue reading Butlin v Barry: 5 Sep 1837
Two sisters made mirror codicils to their wills but each then executed that of the other sister. Held: The dispositions contained in them were invalid. Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She … Continue reading Re Meyer: 1908
(British Columbia Supreme Court) Citations: [1952] 6 WWR (NS) 702 Cited by: Cited – Marley v Rawlings and Another ChD 3-Feb-2011 A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought. Held: The will did not comply with the 1837 Act … Continue reading Re Brander: 1952
The testatrix, a nun, left her property to whoever was abbess of the convent at the date of her death. The nun who witnessed the will was later that abbess. The gift was challenged under the Act. Held: The act took effect where the gift was taken beneficially. The gift remained effective here because the … Continue reading Re Ray’s Will Trusts, Public Trustee v Barry: 1936
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical error was due to an error in the process of recording the testator’s instructions, not in … Continue reading Wordingham v Royal Exchange Trust Co Ltd and Another: ChD 6 May 1992
An executor, after payment of all the debts of which he had notice, invested certain parts of the residue of the testator’s personal estate remaining in his hands, in the funds in his own name, received the dividends, arid paid them over to the legatees in satisfaction of their legacies given by the will :-Held, … Continue reading Sir John Smith, Knight v Thomas Starling Day And Henry Framlingham Day, Executors Of Sir Haylett Framlingham, Deceased: 1837
(Court of session Inner House Second Division) Section 27 of the English Wills Act 1837, which provides that ‘a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall … Continue reading Bray and Others v Peterkin (Bruce’s Trustee) and Others: SCS 19 Jul 1906
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only key to a steel … Continue reading Sen v Headley: CA 28 Feb 1991
There had been donationes mortis causa of the money standing in four accounts, by the delivery of a Post Office Savings Bank book and three other bank books of various descriptions. Lord Evershed MR stated: ‘the courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged … Continue reading Birch v Treasury Solicitor: CA 1950
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the pecuniary legacy given by cl 7(iv). The error … Continue reading In re Morris Deceased: ChD 1970
The claimants sought to challenge a will admitted to probate, saying that the will had been revoked by the testator later entering into a civil partnership. Held: The effect of the provisions inserted into the 1937 Act was to parallel similar provisions relating to the revocation of wills on a marriage. Accordingly the will as … Continue reading Court and Others v Despallieres: ChD 17 Dec 2009
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience … Continue reading Birmingham v Renfrew: 11 Jun 1937
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want everything to go to Auntie Anne.’ and later ‘What I … Continue reading Ayling v Summers and Others: ChD 14 Sep 2009
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now private. She appealed an order declaring the continued public rights. Held: The applicant … Continue reading Rowland v The Environment Agency: CA 19 Dec 2003
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
References: (1937) 57 CLR 666, [1937] HCA 52 Links: Austlii Coram: Dixon J, Latham CJ Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a … Continue reading Birmingham v Renfrew; 11 Jun 1937
1267 – 1278 – 1285 – 1297 – 1361 – 1449 – 1491 – 1533 – 1677 – 1688 – 1689 – 1700 – 1706 – 1710 – 1730 – 1737 – 1738 – 1751 – 1774 – 1792 – 1793 – 1804 – 1814 – 1819 – 1824 – 1828 – 1831 – 1832 … Continue reading Acts
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended. Held: The will of the deceased was properly executed and attested in compliance with statute and is valid. The court considered the presumption of due execution of a will: ‘where … Continue reading Wilson v Lassman: ChD 7 Mar 2017
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties disputed whether the will have been validly executed, and … Continue reading Marley v Rawlings and Another: SC 22 Jan 2014
Challenge to grant of probate for home made will. Claim that not executed properly – contention that it was not signed by Mrs Whelen in the presence of 2 witnesses (s 9(1)(c)) and that the two witnesses who attested the will (Mr Hallam and Mrs Tomalin) did so at the request of and in the … Continue reading Royal National Institute for Deaf People and Others v Turner: ChD 18 Nov 2015
The testator had become infirm and unable to sign his name. He had made a stamp which reproduced his signature. He used it to execute his will. The will was challenged. Held: The will had been validly executed. The requirement of the Act could be fulfilled by somebody else executing a document on the direction … Continue reading Jenkins v Gaisford, Re Jenkins (deceased)’s goods: ChD 1863
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his children. The judge had held the will invalidly executed. Held: The appeal succeeded. … Continue reading Sherrington v Sherrington: CA 22 Mar 2005
The claimant disputed her mother’s will which left everything to her brother, challenging its execution. She said that the second witness had not been present when the will was signed. Held: The will stood. Where a will appeared to be properly executed, the strongest evidence was required to counter the presumption in law of due … Continue reading Kentfield v Wright: ChD 1 Jul 2010
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of the document signed by her late husband, and now appealed against rejection of her … Continue reading Marley v Rawlings and Another: CA 2 Feb 2012
A remainderman who fails to enforce a forfeiture of a preceding life estate obtains a fresh right to possession when the life estate terminates on the death of the life tenant. Judges: Sir George Jessel MR Citations: (1874) LR 18 Eq 290, 30 LT 485 Jurisdiction: England and Wales Cited by: Cited – Naylor and … Continue reading Astley v Earl of Essex: CA 1874
The court considered a suggested disapplication of section 33, and pointed out that there was no requirement that a contrary intention should be expressed in particular terms or that there should be any reference to the section. Nor was it necessary to demonstrate that a conscious decision had been taken to exclude the effect of … Continue reading Hives v Machin: ChD 2017
VL requested a declaration that she was entitled to the entire estate of her father m after his death. The will said that if A (M’s wife) died within a month of M, the estate was to be held on trust for any child aged 21 or more surviving the M by a month. R, … Continue reading Ling v Ling: ChD 2002
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to shares of one tenth and one twentieth, when it … Continue reading Clarke v Brothwood and others; In re Clarke: ChD 16 Nov 2006
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. Held: The case law establishes that the proposition that the propounder of … Continue reading Barry v Butlin: PC 8 Dec 1838
Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted. Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as … Continue reading Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others: ChD 26 Feb 2002
Citations: [2006] EWHC 2561 (Ch) Statutes: Administration of Justice Act 1982 20 Jurisdiction: England and Wales Cited by: Cited – Marley v Rawlings and Another ChD 3-Feb-2011 A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought. Held: The will did … Continue reading Re Price: ChD 2006
(Royal Court of Jersey) The court considered a request for the rectification of a will: ‘To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power in the court to rectify by altering or adding to … Continue reading Re Vautier: 2000
The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness ‘shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary’. He pointed to the statutory requirement of attestation in addition to subscription and gave as the … Continue reading Hudson v Parker: 1844
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation. This was a cause originally instituted … Continue reading Barry v Butlin: 22 Jun 1836
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his instructions, it was upheld, applying Parker v Felgate. The appellant, challenging … Continue reading Perrins v Holland and Others; In re Perrins, deceased: CA 21 Jul 2010
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate. Held: The solicitors (or their insurers) who had made the error should bear the costs of such an action. However, the contingency … Continue reading Marley v Rawlings and Another (2): SC 18 Sep 2014
Child’s Wish for post-mortem cryonic Preservation JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents were divorced, and they differed as … Continue reading Re JS (Disposal of Body): FD 10 Nov 2016
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought. Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had not intended to sign the document he had in fact signed. … Continue reading Marley v Rawlings and Another: ChD 3 Feb 2011
