Wills and Probate - 1960- 1969

Wills and Probate. Includes Inheritance Provision cases. See also Inheritance Tax, Equity and Trusts Law.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 26 cases, and was prepared on 19 May 2014. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
In the Estate of Bercovitz, deceased; Canning -v- Enever; ChD 1961
Re Philipson-Stow [1961] AC 727
1961
HL
Lord Reid, Lord Denning
Wills and Probate, Inheritance Tax
1 Citers
The section excluded from liability for estate duty property "passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of which it passes, is the law neither of England nor of Scotland." Issues relating to a disposition of movables must be determined according to the law of the country of domicile of the deceased at the date of his death. The proper law "regulating" a disposition of immovable property for the purposes of section 28(2) was the lex situs.
Lord Denning confirmed that the question of interpretation depends upon the intention of the testator: "We are dealing with a will: and, whilst I would agree that the construction of a will depends on the intention of the testator, I would say that in no other respect does his intention determine the law applicable to it.
Let me take first the case where there is a disposition of movable property by will. There is no doubt that the proper law regulating the disposition of movables is the law of the domicile of the testator at the time of his death. In the leading case on this subject Lord Carnworth used the word "regulate" in this very connection. When a person dies domiciled abroad, he said, "in every case the succession to personal property will be regulated not according to the law of this country but to that of his domicile": see Enohin v Wylie. There is perhaps an exception in regard to the construction of his will: for if a question arises as to the interpretation of the will and it should appear that the testator has changed his domicile between making his will and his death, his will may fall to be construed according to the law of his domicile at the time he made it: though in all other respects it would be governed by the law of his domicile at the date of his death."
Finance Act 1949 28(2)
Williams -v- Hensman [1861] 1 John & Hem 546; [1861] 30 LJ CH 878; [1861] 5 LT 203; [1861] 7 Jur NS 771; [1861] 70 ER 862; [1861] EWHC Ch J51
10 Jun 1961

Sir William Page Wood VC
Equity, Wills and Probate Casemap

A fund of money was bequeathed on trust to be invested so as to generate an income payable to A 'the principal to go to her children at her death'. Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy may be severed. Where joint tenants indicated by their conduct that they treated their interests separately, the fact that they did not understand that their interests had been joint did not prevent such behaviour acting to sever the tenancy.
[ Bailii ]
Re Neeld deceased, Carpenter -v- Inigo-Jones; CA 1962
In the Estate of Bercovitz, deceased; Canning -v- Enever [1962] 1 WLR 321
1962
CA
Wills and Probate Casemap
1 Cites
1 Citers
Upheld
In the Estate of Knibbs, deceased. Flay v Trueman [1962] 1 WLR 852
1962

Wrangham J
Wills and Probate
1 Cites
1 Citers
Wrangham J said: "As Salter J said in Beech's case: 'I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes.' In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on.
Re the Estate of Robertson, deceased (1963) 107 Sol Jo 318
1963
ChD
Justice Karminski
Wills and Probate Casemap

The testator appointed Marsden sole executor and beneficiary, but if Marsden should die within the testator's lifetime his (M's) adopted daughter should be the sole executrix and beneficiary. M was found guilty of the murder of the testator. The adopted daughter propounded the will and claimed a declaration that M be deemed to have died within the testator's lifetime. Held: It was long recognised that a person who feloniously killed another could not take any benefit under the victim's will. The question therefore arose whether M should be deemed to have died within the testator's lifetime. He continued: "It was obvious that the testator failed to foresee the contingency that he might be murdered by [Marsden]. That, however, could hardly be said to be a contingency for which he might have been expected to provide. It did not constitute an omission from the will which the court would be justified in writing into it. The testator's words were clear and precise. The gift to [the adopted daughter] could only be effective if [Marsden] had died in the testator's lifetime. The declaration sought must therefore be refused." and the testator's estate devolved as on his intestacy.
Re Levick [1963] 1 WLR 31
1963
ChD
Plowman J
Wills and Probate, Inheritance Tax Casemap
1 Cites

The proper law "regulating" the disposition of movable property for the purposes of section 28(2) was the law of the testator's domicile at the time of his death. Plowman J said that the term "regulate" was concerned with the material or essential validity of a will, rather than with its interpretation: "In the case of immovables it is lex situs (as the House of Lords held) and in the case of movables it is, in my judgment, the lex domicilii, from which the validity of the disposition stems. As Mr Foster conceded, if the law of South Africa had forbidden the disposition with which I am concerned, it could not have taken effect."
Finance Act 1949 28(2)
Re Jolley [1964] P 262; [1964] 1 All ER 596
1964
CA
Wills and Probate, Litigation Practice
If a will has already been proved in common form, any person challenging the will must commence a probate action for the revocation of the previous grant.
Ward -v- Holman; 1964
In re Dellow's Will Trusts; Lloyd's Bank -v- Institute of Cancer Research; ChD 1964
In re Dellow's Will Trusts; Lloyd's Bank -v- Institute of Cancer Research; ChD 1964
Re King's Will Trusts, Assheton -v- Boyne; ChD 1964
Commissioner of Stamp Duties (Queensland) -v- Livingston [1965] AC 694; [1964] UKPC 2; [1964] UKPC 45
7 Oct 1964
PC
Viscount Radcliffe
Wills and Probate, Stamp Duty, Commonwealth Casemap
1 Cites
1 Citers
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New South Wales, but the husband's estate was not yet fully administered. No clear residue had yet been ascertained and no final balance attributable to the shares of residue had been determined. The question was whether the deceased widow's share in her husband's real and personal estate in Queensland, a share that had devolved on her death on those entitled under her intestacy, was subject to Queensland succession duty. Did she die owning a beneficial interest in any real or personal property in Queensland? Held: No Queensland succession duty was payable.
The estate of a deceased which devolves on personal representatives comes to them "virtute officii . . in full ownership, without distinction between legal and equitable interests" but they hold the estate "for the purpose of carrying out the functions and duties of administration, not for [their] own benefit".
A beneficiary under an estate has no interest in the property to be administered, but only a right to require the estate to be duly administered, and to receive an appropriate proportion of the nett estate.
Viscount Radcliffe said: "their Lordships regard it as clearly established that Mrs. Coulson was not entitled to any beneficial interest in any property in Queensland at the date of her death. What she was entitled to in respect of her rights under her deceased husband's will was a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate"
[ Bailii ] - [ Bailii ]
Re Hammersley; 1965
Re Selby's Will Trusts; ChD 1966
In the Estate of Fuld, decd (No 3); ChD 1967
Re Resch's Will Trusts; Vera Caroline Le Cras-v- Perpetual Trustee Company Limited [1967] UKPC 1; [1967] 3 All ER 915; [1968] 3 WLR 1153; [1969] 1 AC 514
19 Oct 1967
PC
Hodson, Guest, Donovan, Wilerforce LL, Sir Alfred North
Commonwealth, Wills and Probate, Charity Casemap
1 Cites
1 Citers
The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: "The principles which ought to be applied on such a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. "In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation" and "in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator": Greenough v Martin (1824) 2 Add 239 at 243".
[ Bailii ]
Holder -v- Holder; In re Frank Holder dec [1967] EWCA Civ 2; [1968] Ch 353; [1968] 1 All ER 665; [1968] 2 WLR 237
8 Dec 1967
CA
Harman LJ, Danckwerts LJ, Sachs LJ
Wills and Probate, Trusts Casemap
1 Citers
[ Bailii ]
Aldrich -v- Attorney-General [1968] P 281
1968
ChD
Ormrod L
Wills and Probate

Re Flynn; 1968
Re Seaford Dec'd [1968] P 53
1968
CA
Willmer LJ, Davies LJ
Family, Litigation Practice, Wills and Probate Casemap

A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made. Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband's death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.
In the Estate of Fuld, dec'd (No 3); ChD 1968
Talbot -v- Talbot [1968] Ch 1
1968
ChD
Wills and Probate

A testamentary option was given relating to two farms which provided for the price to be the "reasonable valuation" of the farms. Held: This option was enforceable and the court ordered an enquiry as to what was a reasonable price for the farms.
In Re Sabatini [1969] 114 SJ 35
1969

Wills and Probate
The test for capacity to revoke a will is the same as the test for making one.
Smith & Smith -v- Smith (1869) LR 1 P&D 143
1969

Wills and Probate Casemap
1 Citers
The witnesses did not see the attestation clause on a will and although they saw the testatrix write something on the document, they did not see what was being written. Held: Witnesses to the execution of a will need not know that the document which they see the testator sign is a will. The court was prepared to infer that the testatrix was signing the will, the presumption that everything was duly done being a strong one in the absence of evidence clearly rebutting the presumption.