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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 25 cases, and was prepared on 06 June 2013. 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 [1961] 1 WLR 892
1961
ChD
Phillimore J
Wills and Probate Casemap
1 Cites
1 Citers
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."
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
1 Citers
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.
Link[s] omitted
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
1 Cites
1 Citers
Upheld
In the Estate of Knibbs, deceased. Flay v Trueman [1962] 1 WLR 852
1962

Wrangham J
Wills and Probate Casemap


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
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] 2 QB 580
1964

Gorrell Barnes J
Wills and Probate
1 Citers
The section 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
In re Dellow's Will Trusts; 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
7 Oct 1964
PC
Viscount Radcliffe
Wills and Probate, Stamp Duty, Commonwealth Casemap

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.
Link[s] omitted
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

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".
Link[s] omitted
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
Link[s] omitted
Re Seaford Dec'd [1968] P 53
1968
CA
Willmer LJ, Davies LJ
Family, Litigation Practice, Wills and Probate Casemap
1 Citers
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.
Aldrich -v- Attorney-General [1968] P 281
1968
ChD
Ormrod L
Wills and Probate Casemap
1 Cites
Re Flynn [1968] 1 WLR 103
1968

Megarry J
Wills and Probate Casemap


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."
In the Estate of Fuld, decd (No 3); ChD 1968
Talbot -v- Talbot [1968] Ch 1
1968
ChD
Wills and Probate
1 Citers
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.

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