Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  









Wills and Probate - From: 1960 To: 1969

This page lists 26 cases, and was prepared on 13 November 2014.


 
 In the Estate of Bercovitz, deceased; Canning -v- Enever; ChD 1961 - [1961] 1 WLR 892
 
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


 
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
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.
1 Citers

[ Bailii ]

 
 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 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 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 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 - [1964] 2 QB 580

 
 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; ChD 1964 - [1964] 1 WLR 451; [1964] 1 All ER 771

 
 Re King's Will Trusts, Assheton -v- Boyne; ChD 1964 - [1964] Ch 542

 
 Commissioner of Stamp Duties (Queensland) -v- Livingston; PC 7-Oct-1964 - [1965] AC 694; [1964] UKPC 2; [1964] UKPC 45

 
 Re Hammersley; 1965 - [1965] Ch 481

 
 Re Selby's Will Trusts; ChD 1966 - [1966] 1 WLR 43

 
 In the Estate of Fuld, decd (No 3); ChD 1967 - [1968] P 675; [1967] 3 WLR 401; [1967] 3 All ER 318
 
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
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

1 Citers

[ Bailii ]
 
Aldrich -v- Attorney-General [1968] P 281
1968
ChD
Ormrod L
Wills and Probate

1 Cites



 
 Re Flynn; 1968 - [1968] 1 WLR 103
 
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



 
 In the Estate of Fuld, dec'd (No 3); ChD 1968 - [1968] 1 P 675
 
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 & 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


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.