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Wills and Probate - From: 1960 To: 1969
This page lists 28 cases, and was prepared on 02 April 2018.
In the Estate of Bercovitz, deceased; Canning v Enever [1961] 1 WLR 892
1961
ChD
Phillimore J
Wills and Probate
The court considered the requirements for a valid execution of a will. Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator's signature or of attesting the will. Phillimore J discussed the strength of the presumption in favour of due execution, saying: "The force of the presumption or maxim varies with all the circumstances. Where a document is entirely regular in form it may be very strong; but where, as here, it is irregular and unusual in form, the maxim cannot apply with the same force." The question he had to decide was "'whether, in all the circumstances of this particular case, it is more probable that what was done was done as it ought to have been done to render the will valid."
1 Citers
Re Philipson-Stow [1961] AC 727
1961
HL
Lord Reid, Lord Denning
Wills and Probate, Inheritance Tax
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)
1 Citers
Re Neeld deceased, Carpenter v Inigo-Jones; CA 1962 - [1962] Ch 643
In the Estate of Bercovitz, deceased; Canning v Enever; CA 1962 - [1962] 1 WLR 321; [ 1962] 1 All ER 552
In the Estate of Knibbs, deceased. Flay v Trueman; 1962 - [1962] 1 WLR 852; [1962] 2 All ER 829
Re Levick [1963] 1 WLR 31
1963
ChD
Plowman J
Wills and Probate, Inheritance Tax
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)
1 Cites
1 Citers
Re the Estate of Robertson, deceased (1963) 107 Sol Jo 318
1963
ChD
Justice Karminski
Wills and Probate
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.
1 Citers
Re King's Will Trusts, Assheton v Boyne [1964] Ch 542
1964
ChD
Pennycuick J
Wills and Probate
An assent by personal representatives is 'the instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject-matter of the disposition to the person entitled to it', and must be in writing even if the assent is by the executors in their own favour as trustees. There had to be a divesting of title from the personal representative in that capacity and a revesting in the same person but in the different capacity of trustee.
Administration of Estates Act 1925 36 66(3)
1 Citers
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.
In re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer Research; ChD 1964 - [1964] 1 WLR 451
In re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer Research [1964] 1 WLR 451; [1964] 1 All ER 771
1964
ChD
Ungoed-Thomas J
Wills and Probate, Trusts, Evidence
Ungoed-Thomas J said: "The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it."
1 Citers
Ward v Holman [1964] 2 QB 580
1964
Gorrell Barnes J
Wills and Probate
Section 3 of the 1861 Act abrogated the common law rule that a change of domicile operated as a revocation of a testamentary disposition. The long title of the Act was "An Act to amend the law with respect to wills of personal estate made by British subjects" Held: The section was of general application.
Wills Act 1861 3
1 Citers
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
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"
1 Cites
1 Citers
[ Bailii ] - [ Bailii ]
Acosta v Longsworth and Others [1964] UKPC 52; [1965] 1 WLR 107,
3 Dec 1964
PC
Wills and Probate
(British Honduras)
[ Bailii ]
Re Hammersley [1965] Ch 481
1965
Wills and Probate
A court will not speculate as to a testator's intentions if they cannot be ascertained.
1 Citers
In re E, deceased [1966] 1 WLR 709
1966
Stamp J
Wills and Probate
Possible receipt by a family member in receipt of state support greater than the testator could sensibly provide may be an understandable reason why it was reasonable for the deceased not to make financial provision for that family member. The purpose of the 1938 Act was not to keep a person above the breadline but to provide reasonable maintenance in all the circumstances.
Inheritance (Family Provision) Act 1938
1 Citers
Re Selby's Will Trusts [1966] 1 WLR 43
1966
ChD
Buckley J
Wills and Probate
1 Cites
1 Citers
Satterthwaite, Re; CA 26-Jan-1966 - [1966] EWCA Civ 3; [1966] 1 WLR 277; [1966] 1 All ER 919
In the Estate of Fuld, decd (No 3) [1968] P 675; [1967] 3 WLR 401; [1967] 3 All ER 318
1967
ChD
Scarman J
Jurisdiction, Family, Litigation Practice, Wills and Probate
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile. Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: "First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." and
"(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . ." and
"necessary intention must be clearly and unequivocally proved. " The domicile of origin is more enduring than the domicile of choice: " . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: "There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
. . And: "when all is dark, it is dangerous for a court to claim that it can see the light."
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law - the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences - presumptions as they are sometimes called - to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and 'he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'."
1 Cites
1 Citers
Re Resch's Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited [1967] 3 All ER 915; [1968] 3 WLR 1153; [1969] 1 AC 514; [1967] UKPC 23
19 Oct 1967
PC
Hodson, Guest, Donovan, Wilerforce LL, Sir Alfred North
Charity, Wills and Probate
(New South Wales) 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".
1 Cites
1 Citers
[ 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
The court considered a complaint that a trustee had purchased trust property. Held: There is a residual discretion in the Court to uphold a transaction that technically falls within the prohibition.
1 Citers
[ Bailii ]
Aldrich v Attorney-General [1968] P 281
1968
ChD
Ormrod L
Wills and Probate
1 Cites
Re Seaford Dec'd [1968] P 53
1968
CA
Willmer LJ, Davies LJ
Family, Litigation Practice, Wills and Probate
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.
1 Citers
Re Flynn [1968] 1 WLR 103
1968
Megarry J
Wills and Probate
The court had to decide on the intentions of the deceased with regard to domicile: "In one sense there is no end to the evidence that may be adduced; for the whole of a man's life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man's mind may be as much a fact as the state of his digestion, but, as Harman LJ is reputed to have observed, "the doctors know precious little about the one and the judges know nothing about the other."" and "Acquisition and abandonment are correlatives . . When animus and factum are each no more, domicile perishes also; for there is nothing to sustain it. If a man has already departed from the country, his domicile of choice there will continue so long as he has the necessary animus."
1 Cites
1 Citers
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.
1 Citers
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 and Smith v Smith (1869) LR 1 P&D 143
1969
Wills and Probate
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.
1 Citers
Aitken's Trustees v Aitken [1969] UKHL 13; 1970 SC (HL) 28; 1970 SLT 66,
26 Nov 1969
HL
Lord Clyde
Scotland, Wills and Probate
"The first question put to us in the case is whether the third party is entitled to a one-third share in the residue of the testator's estate. The answer to that question depends primarily upon the meaning to be given to the words in the residue clause, which I have quoted, "jointly with the issue who may survive me of such of my children as may have predeceased." If "my children" means "my said children," that is, the two named children, who are the second parties, then the clause would clearly exclude the third party from participation in the residue. But I am unable so to construe the residue clause. If that had been what the testator had intended to provide, it would have been very easy to have said so. But in place of doing this he has made what he describes as a joint gift to two named children and to the issue of such of his children as may have predeceased him. The words "my children" are not confined to the named persons in the immediately preceding part of the clause. The third group, therefore, to whom this bequest was made would cover the third party, who was, in fact, the issue of a child who had, in fact, predeceased him."
[ Bailii ]
