swarb.co.uk - law index
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Wills and Probate - From: 1992 To: 1992
This page lists 8 cases, and was prepared on 02 April 2018.
Buckenham v Dickinson [1997] CLY 4733; [2000] WTLR 1083
1992
ChD
His Honour Judge Cooke
Wills and Probate
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples' homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything and everybody. He had stopped going around his garden and just sat in the kitchen all the time, often with his head in his hands. Held: The testator did not have testamentary capacity: "Now of course what Simpson does not say, although counsel tries to submit that it does is that a failure to observe the golden rule will invalidate the will; it says nothing of the kind, but it points very starkly to the problems that professionals face when they are drawing wills and they do not take these precautions or precautions as near to them as the practicalities require."
When taking instructions for a will, and where the instructions were in fact given by someone other than the testator and the testator was merely being asked to agree to someone else's proposition, the use of open rather than closed questions was an essential minimum of good practice.
1 Cites
1 Citers
Hunter's Executors, Petitioners (1992) SLT 1141
1992
IHCS
Lord Ross LJC
Wills and Probate
The testatrix left the residue of her estate absolutely to her husband "whom failing should he predecease me or should we die simultaneously or be held to have died simultaneously to any child or children born or to be born to me and the said Andrew Hunter, equally between them if more than one: "with a substitutionary gift in favour of the issue of any child who predeceased her". The will continued: "In the event of the said Andrew Hunter predeceasing me or of our simultaneous death as aforesaid and there being no surviving child (or issue) born to me and the said Andrew Hunter so as to succeed to my estate, in that event only I leave the whole residue of my estate absolutely to my sister [and stepson] equally . ." The testatrix was murdered by her husband, Andrew Hunter. There were no children of the marriage. The testatrix' sister argued in favour of an intestacy. Held: The Court decided in favour of an intestacy. There was clear authority that the forfeiture rule in Scotland is based at least partly upon considerations of public policy: "We agree with counsel for the heirs on intestacy that such a rule of public policy should be carried no further than is necessary to achieve its object. In our opinion whilst considerations of public policy lead to the right of Andrew Hunter being forfeited, there is no consideration of public policy which would support the deceased's estate being then distributed as if Andrew Hunter had died." The gift over in favour of the testatrix' sister and stepson only came into play in the event of Andrew Hunter's having predeceased her, and that there was no justification for seeking to extend it to a situation where Andrew Hunter had not predeceased her but had in fact survived her.
1 Citers
Regina v Gwynedd County Council ex parte B and Another [1992] 3 All ER 317
1992
Children, Wills and Probate
The ambit of the 1980 act does not extend to regulating events arising after a child's death.
Child Care Act 1980
1 Cites
1 Citers
Jessop v Jessop [1992] 1 FLR 591
2 Jan 1992
CA
Nourse LJ, McCowan LJ, Sir John Megaw
Family, Wills and Probate
The court considered the provision to be made under the 1975 Act for a surviving spouse: "In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ and Waite J which appears to give great prominence to the requirements of s 3(2) in a case of this kind. On the other side, Mr. Harrap referred us to a further passage in the judgment of Oliver LJ in Re Besterman deceased at p 469, which suggests that no greater prominence is required to be given to that consideration than to any of the others to which the court must have regard. It seems that Re Besterman deceased was not referred to in Moody v. Stevenson. In my view it is unnecessary for us to enter upon any possible conflict between those two decisions and I do not propose to do so."
Inheritance (Provision for Family and Dependants) Act 1975 3(2)
1 Cites
1 Citers
Nestle v National Westminster Bank [1992] EWCA Civ 12; [1993] 1 WLR 1260; [1994] 1 All ER 118
6 May 1992
CA
Dillon, Staughton, Leggatt LJJ
Wills and Probate, Financial Services, Negligence
The claimant said that the defendant bank as trustee of her late father's estate had been negligent in its investment of trust assets. Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though there was not much for the bank to be proud of in its administration of the trusts.
Aministration of Justice Act 1985 50
1 Cites
[ Bailii ]
Wordingham v Royal Exchange Trust Co Ltd and Another Gazette, 06 May 1992; [1992] Ch 412; [1992] 3 All ER 204
6 May 1992
ChD
Evans-Lombe QC J
Wills and Probate
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 the drafting of the will. Held: The court rectified the will under section 20(1)(a) of the 1982 Act by writing the missing clause into it. Evans-Lombe QC J said: "The words 'clerical error' used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will."
Administration of Justice Act 1982 20(1)(a)
1 Cites
1 Citers
Wood and Another v Smith and Another Gazette, 06 May 1992
6 May 1992
CA
Wills and Probate
A home made will signed only at the top of the page but where there was a clear indication of testamentary intention is a valid will.
Wills Act 1937
1 Citers
Muir v Lloyds Bank Plc; ChD 17-Jun-1992 - Gazette, 17 June 1992; Gazette, 22 July 1992
