Category: Wills and Probate

Barry v Butlin: 22 Jun 1836

The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.

Citations:

[1836] UKPC 9, [1838] 2 Moo PCC 480

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Butlin v Barry 5-Sep-1837
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
See Also – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 08 May 2022; Ref: scu.463555

Re Gregory (Deceased), Gregory v Goodenough: CA 1970

Fenton Atkinson LJ sought to discourage appeals in cases involvimg small estates.

Judges:

Fenton Atkinson LJ

Citations:

[1970] 1 WLR 1455

Jurisdiction:

England and Wales

Cited by:

Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 May 2022; Ref: scu.431725

Chetwynd v Fleetwood and Others: PC 17 May 1742

In what case an heir is bound toperform his father’s covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.

Citations:

[1742] EngR 59, (1742) 1 Bro PC 300, (1742) 1 ER 580

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 07 May 2022; Ref: scu.384232

Lord Walpole v Lord Orford: 1789

The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be and is in the form of a testamentary disposition, yet, if it claims to be irrevocable, can only operate as a deed and not as a will.

Citations:

[1789] EngR 1464, (1789-1817) 1 Ves Jun Supp 393, (1789) 34 ER 842 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 07 May 2022; Ref: scu.367095

Re Pfrimmer: 1936

(Manitoba Court of Appeal) Mr Pfrimmer in his will in 1930, disposed of a house on various trusts. On his death, the question arose as to whether the carrying into effect of the testamentary trusts was prevented by two documents (one called a ‘Declaration of Trust’) that he had executed five years before he made his will. The documents related to the same house and, if they created a valid trust in respect of it, the provisions in the will could not take effect. The question was whether they did create such a trust, or whether they took effect only as a testamentary disposition.
Held: The documents showed that the land subject to them was to remain in Mr Pfrimmer’s disposition to do with what he liked and that it was not until his death that they were intended to become operative; and that they were intended to take the place of a testamentary disposition in order to avoid probate expense and succession duties ‘and not to create an irrevocable trust by a binding transfer of the properties.’ Trueman JA, giving the judgment of the court, said: ‘The law is clear that to give validity to a declaration of trust of property, it is necessary that the donor or grantor should have absolutely parted with his interest in the property, and have effectually put such interest beyond his own reach. . Whatever may be the form of an instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon the death for its vigour and effect, it is not a trust. ,br />Thus, in Malim v. Keighley, 2 Ves. Jun. 333, at p. 335, 30 E.R. 659, the Master of the Rolls said:– ‘I will lay down the rule as broad as this; wherever any person gives property, and points out the object, the property and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.”

Citations:

[1936] 2 DLR 460

Jurisdiction:

Canada

Cited by:

Cited – Chopra v Bindra CA 19-Mar-2009
The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.323754

Milne v Milne; Travis v Milne: 29 May 1851

A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; and the suit might be maintained where the relation between the executors and surviving partners was such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
A gift and devise by one of the partners in a cotton-mill of all his property, estate and effects to trustees, upon trust, to lay out and invest two-third parts thereof upon real or good personal security, or to transfer the same, and allow it to remain in the concern, of which he was one of the co-partners, in the names of his trustees, and alter, vary, change and transpose the same as they should think fit, and stand possessed of the same, upon trust, for the two sons of the testator, with certain powers of advancement out of their respectives shares: Held, to authorise the executors to continue the monies of the testator in the trade, but not to trade with the monies by becoming partners in the firm.
The surviving partners of a testator dealing with the property of the testator, with the knowledge that it belongs to his estate, are bound to inquire into the trusts on which it is held, and are liable as if they had actual notice of those trusts.
A suit by parties beneficially interested in the estate of a deceased partner cannot be maintained against, both his executors and surviving partners, in the absence of special circumstanees ; but collusion is not the only ground for such a suit ; and it may be maintained where the relation between the executors and surviving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
It is not to be presumed that the annual stock-taking by a partnership truly represents the interests of the several partners in the firm; but it may or may not do so, according to the purposes for which and the mode in which it is made up.

Judges:

Turner V-C

Citations:

[1851] EngR 524, (1851) 9 Hare 141, [1851] 68 ER 449

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.296840

Roberts v Gill and Co and Another: ChD 2007

Judges:

Morgan QC

Citations:

[2007] EWHC 3461 (Ch), [2007] All ER (D) 89

Jurisdiction:

England and Wales

Cited by:

Appeal from – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Wills and probate

Updated: 07 May 2022; Ref: scu.279798

Wintour v Clifton: 1856

The law adopts a strong presumption that a testator will have purported to dispose only of property of which he was free to dispose.

Citations:

(1856) 8 De GM and G 641

Jurisdiction:

England and Wales

Cited by:

Cited – Frear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.278399

Re Oldham; Hadwen v Myles: 1925

The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the change of circumstances. Even so, the evidence said to prove the agreement must be clear and cogent and the precise terms must be proved in order to ascertain the ambit of any restriction on disposition of the Property in question by the survivor:

Judges:

Astbury J

Citations:

[1925] Ch 75, 94 LJCh 148, 132 LT 658

Jurisdiction:

England and Wales

Citing:

Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .

Cited by:

Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.270587

Re Grandison; Grandison v Nembhard: ChD 10 Jul 1989

In a case where there is no dispute as to the executor’s entitlement to act in the estate, the right of the executor to decide on the mode of burial is likely to be accorded a high priority. The deceased’s wishes are one of the relevant factors to be taken into consideration.

Judges:

Vinelott J

Citations:

Times 10-Jul-1989, (1989) 4 BMLR 140

Jurisdiction:

England and Wales

Cited by:

Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.267634

Re Plant deceased: 1926

The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of the estate, without making a very strong case on [the] facts. The lure of ‘costs out of the estate’ is responsible for much unnecessary litigation.’

Judges:

Scrutton LJ, Lord Hanworth MR

Citations:

[1926] P 139

Jurisdiction:

England and Wales

Citing:

Endorsed – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Endorsed – Spiers v English 1907
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .

Cited by:

Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 07 May 2022; Ref: scu.263526

Davies v Gregory: 1873

After a contested application, the court pronounced in favour of the will.
Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the litigation, and said the reason why costs were payable out of the estate was: ‘because the conduct of [the] testator himself caused the litigation.’ and
‘That principle having once been extracted from the decisions, we should no longer slavishly confine ourselves to precisely the same state of facts in applying it, but should apply it to all cases to which it is fairly applicable. The principle being as I have stated, the question to be determined in each case is this: Is the testator, by reason of his conduct, to be considered the cause of the reasonable litigation which has occurred after his death as to the validity of his will?’
. . and ‘Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, they bona fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs.’
The costs of an unsuccessful opposition to a will must be paid out of the estate in cases where the testator, by his own conduct, and habits, and mode of life, has given the opponents of the will reasonable ground for questioning his testamentary capacity.

Judges:

Sir James Hannen

Citations:

(1873) LR 3 PandD 28

Cited by:

Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Lists of cited by and citing cases may be incomplete.

WIlls and Probate, Costs

Updated: 07 May 2022; Ref: scu.263524

Broughton v Knight: 1873

Sir J Hannen said that a testator ‘may disinherit his children, leave his property to strangers to gratify his spite, or to charities to gratify his pride’.

Judges:

Sir J Hannen

Citations:

(1873) 3 P and D 64

Jurisdiction:

England and Wales

Cited by:

Cited – Judy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.259924

Re Sinclair: 1938

Judges:

Sir Christopher Farwell

Citations:

[1938] Ch 199

Jurisdiction:

England and Wales

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Insurance, Wills and Probate

Updated: 07 May 2022; Ref: scu.251059

Re Recher’s Will Trusts: ChD 1972

The deceased gave a share of the residue, to ‘The Anti-Vivisection Society, 76 Victoria Street, London S.W.1.’ She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the ‘London and Provincial Anti-Vivisection Society’ had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as ‘The National Anti-Vivisection Society’ of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to ‘The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society).’ In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: ‘It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members’ social club. . . Such an association is bound . . to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules . . The resultant situation, on analysis, is that the . . society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure … Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the . . society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process.’

Judges:

Brightman J

Citations:

[1972] Ch 529

Jurisdiction:

England and Wales

Citing:

Approved – Neville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Cited by:

Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.245266

In re Dale dec’d: ChD 1994

The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second testator take a personal direct benefit under the other will.

Judges:

Morritt J

Citations:

[1994] Ch 31

Jurisdiction:

England and Wales

Citing:

Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 06 May 2022; Ref: scu.214596

Beresford v Royal Insurance Co Ltd: CA 1937

Major Beresford had shot himself. The court considered the applicability of the forfeiture rule in a case involving a suicide: ‘suicide when sane is by English law a felony. This has been so from very early times. The law is thus succinctly stated by Stephen in his Digest of the Criminal Law (art. 319): ‘A person who kills himself in a manner which in the case of another person would amount to murder is guilty of murder, and every person who aids and abets any person in so killing himself is an accessory before the fact, or a principal in the second degree in such murder.’ Hence, where there has been what is called a suicide pact between two persons and one survives the survivor is guilty of murder . . This being the nature of felo de se by English law, and as the plaintiff, as personal representative, stands in the shoes of the assured who has committed, as it were, murder on himself, the present claim is equivalent technically to a claim brought by a murderer or his representative or assigns on a policy effected by the murderer on the life of the murdered man. In the latter case it is, we think clear that neither the murderer nor his estate nor his assigns could take a benefit under the policy. ‘ Lord Wright discussed the ex turpi principle: ‘The principle (that the court will not allow a criminal or his representative to reap by the judgment of the court the fruits of his crime) has been applied….in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio . The maxim itself, notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition.’

Judges:

Lord Wright MR, Romer and Scott LJJ

Citations:

[1937] 2 KB 197

Jurisdiction:

England and Wales

Cited by:

Appeal from – Beresford v Royal Insurance Co Ltd HL 1938
The forfeiture rule was to be applied in a case involving suicide. An insured may not recover under a policy of insurance in respect of loss intentionally caused by his own criminal or tortious act, however clearly the wording of the policy may . .
Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – AXA General Insurance Limited v Gottlieb CA 11-Feb-2005
The defendant made a claim under an insurance policy. The insurer made an interim payment, but then asserted that the claim was fraudulent, and sought recovery of the interim payment.
Held: At common law, fraud in an insurance claim, once . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insurance

Updated: 06 May 2022; Ref: scu.199534

Hewson v Shelley: CA 1914

The commencement of a probate action does not of itself revoke the grant, and if the plaintiffs fail in the probate action, the grant will not be void ab initio.

Citations:

[1914] 2 Ch 13

Jurisdiction:

England and Wales

Cited by:

Cited – Daniel, Broke, Abiola, Broke, Abiola v Abiola, Kalu QBD 25-Jun-2003
The administration of the estate had been very contentious, with allegations of a fraudulent will. Letters of administration with no will annexed had been made in favour of one party who had recently been involved in proceedings where the will was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.199558

In the Estate of Julian Bernard Hall deceased; In re RH: CA 1914

The rule against an offender benefitting from his crime applies not just in cases involving a conviction for murder.
Held: The court rejected a suggestion that a distinction should be drawn between cases of murder and manslaughter. Lord Cozens-Hardy MR failed entirely to appreciate the supposed distinction: ‘it was a case of felony and I see no reason to draw a distinction between murder and manslaughter in a case like this’. Hamilton LJ said that the principle could only be expressed in a wide form: ‘it is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter . . the distinction seems to me either to rely unduly on legal classification or else to encourage what, I am sure, be very noxious – a sentimental speculation as to the motives and degree of moral guilt of a person who has been justly convicted and sent to prison.’

Judges:

Lord Cozens-Hardy MR, Hamilton L

Citations:

[1914] P 1

Jurisdiction:

England and Wales

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 06 May 2022; Ref: scu.199528

Hall v Knight and Baxter: CA 1914

A man named Julian Hall kept a woman named Jeannie Baxter and had made a will in her favour. They had had many quarrels. He had promised to marry her but had not done so. On April 13, 1913, she took his revolver and, whilst he was in bed, shot him dead with four or five shots. She was acquitted of murder but convicted of manslaughter.
Held: The forfeiture rule applied to a person convicted of manslaughter.
Cozens-Hardy MR, applying Cleaver said: ‘It is said that that was a case of murder, and not manslaughter. I entirely fail to appreciate that distinction. It was a case of felony and I see no reason to draw a distinction between murder and manslaughter in a case like this.’
Hamilton LJ said: ‘The principle can only be expressed in that wide form. It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter’.

Judges:

Cozens-Hardy MR, Hamilton LJ

Citations:

[1914] P 1

Jurisdiction:

England and Wales

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.199535

Re Colling Dec’d: 1972

For the valid execution of a will, the burden is on those propounding the will to establish on the balance of probabilities that the technical requirements of the Act are strictly complied with irrespective of whether such insistence defeats the testator’s intent.

Citations:

[1972] 3 All ER 729

Jurisdiction:

England and Wales

Cited by:

Cited – Sherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.198738

In re Simpson Deceased; Schaniel and Another v Simpson and Others: ChD 1977

Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.’

Judges:

Templeman J

Citations:

(1977) NLJ 487, (1997) SJ 121 224

Jurisdiction:

England and Wales

Cited by:

Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Approved – Buckenham v Dickinson ChD 1992
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 . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 06 May 2022; Ref: scu.196960

Montefiore v Guedalla: 1859

Referring to the doctrine of ademption: (Turner LJ) ‘… the court will not impute to a parent the intention twice to discharge the same obligation of providing for his child – a rule founded, as it seems to me, on very sufficient reasons; for there can be no doubt that, in the absence of it, the affairs of families would in many cases be involved in the utmost confusion.’ and (Lord Campbell LC) ‘The doctrine of ademption has been established for the purpose of carrying in to effect the intention of fathers of families for providing for their children, and of preventing particular children from obtaining double portions, contrary to such intention.’

Judges:

Turner LJ, Lord Campbell LC

Citations:

(1859) 1 de GF and J 93

Jurisdiction:

England and Wales

Cited by:

Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.194483

Ravenscroft v Jones: 1863

A father by his will bequeathed andpound;700 to his then unmarried daughter. Later two inter vivos gifts were made; one, of andpound; 100, was plainly not a portion. The other, of andpound;400, was not given to the daughter but to her husband. The testator said to the husband that he hoped the gift would do him good.
Held: A small gift is not to be taken as a ‘portion’ of the gift intended to be made under a will. ‘With respect to the . . . andpound;400, I prefer to express no opinion as to the ground upon which, to a great extent at least, the Master of the Rolls appears to have proceeded; namely that the daughter herself was the legatee, while the payment was made to the husband of the daughter. I do not rely upon that ground nor on the other hand do I express any dissent from It.’ On the evidence the andpound;400 was intended as ‘a simple gift’ meaning, I apprehend, that it was not a portion at all but pure bounty.

Judges:

Knight Bruce LJ, Turner LJ

Citations:

(1863) 32 Beav 669

Jurisdiction:

England and Wales

Cited by:

Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.194472

In re Cleaver dec’d, Cleaver v Insley: ChD 1981

Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding. An enforceable agreement to dispose of property in pursuance of mutual wills can be established only by clear and satisfactory evidence.’
Equity does not protect the beneficiary under mutual wills merely because the wills have been made in identical or almost identical terms. There must be evidence of an agreement to create interests under mutual wills which are intended to be irrevocable after the death of the first person to die. Nourse J said: ‘It is therefore clear that there must be a definite agreement between the makers of the two wills; that that must be established by evidence; that the fact that there are mutual wills to the same effect is a relevant circumstance to be taken into account, although not enough of itself; and that the whole of the evidence must be looked at.’

Judges:

Nourse J

Citations:

[1981] 1 WLR 939, [1981] 2 All ER 1018

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .

Cited by:

Distinguished – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 06 May 2022; Ref: scu.183792

Ninian v Findlay and Others: ChD 21 Feb 2019

The claimant applied for relief from forfeiture of her rights in hr late husband’s estate. He had killed himself with the assistance of Dignitas in Switzerland and of the claimant.
Held: Relief was granted: ‘when considering an application for relief, the decision of the Crown Prosecution Service not to prosecute Mrs Ninian is a powerful factor in favour of the grant of relief. I am satisfied that the circumstances of this case provide a compelling case for the court to exercise its power to grant full relief such that Mr Ninian’s share of jointly owned property and her interest as the beneficiary of the residue of Mr Ninian’s estate, that would otherwise be forfeit, will pass to Mrs Ninian.’

Citations:

[2019] EWHC 297 (Ch)

Links:

Bailii

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 May 2022; Ref: scu.634399

In re E, deceased: 1966

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.

Judges:

Stamp J

Citations:

[1966] 1 WLR 709

Statutes:

Inheritance (Family Provision) Act 1938

Jurisdiction:

England and Wales

Cited by:

Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.581302

Conin; Re: 1977

Walton J expressed serious doubts about the extension of the rule in Strong v Bird to an administrator. The appointment of a donee by a donor to be his executor is a personal act of choice by the donor. The effect of such act is to make it impossible for a donee, as executor, to sue himself. And that is consistent with the intention on the part of the donor to make a gift to the donee. The appointment of an administrator, on the other hand, is not the act or choice of the donor but of the law. And often it is a matter of pure chance which of the many persons who are entitled to a grant of letters of administration will be appointed as the administrator. I

Judges:

Walton J

Citations:

[1977] 2 All ER 720, [1979] Ch 16

Jurisdiction:

England and Wales

Wills and Probate, Trusts

Updated: 06 May 2022; Ref: scu.556389

Massy v Rogers: 1883

Citations:

(1883) 11 LR Ir 409

Cited by:

Cited – Creasey and Another v Sole and Others ChD 24-May-2013
The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.510139

Re Neeld deceased, Carpenter v Inigo-Jones: CA 1962

The court considerd the interpretation of a Names and Arms clause in a will under which the testator directed that any person becoming entitled to a particular gift under the will must: ‘take upon himself and use upon all occasions the surname of Inigo-Jones only and quarter the arms of Inigo-Jones with his or her own family arms and shall within the space of one year next after the period hereinbefore prescribed apply for and endeavour to obtain a proper licence from the Crown or take such other means as may be requisite to enable him or her to take use and bear the surname of Inigo-Jones only and arms of Inigo-Jones’. If the beneficiary failed to do so or should ‘discontinue to take or use such surname and arms’ the gift should fail. It was said that the gift failed for uncertainty.
Upjohn LJ said: ‘Many must be familiar with and have experience of persons who, for good reason, have changed their names. There is no difficulty or uncertainty about it. The operation is one which necessarily takes time. Professional and business associates, tradesmen and friends, have to be informed of the change of name; that will take some time but in the end, when some time has elapsed, the person who was formerly ordinarily known as ‘X’ becomes ordinarily known as ‘Y’. He has effectively changed his name. That can be done easily within the year laid down in the clauses in the will. He must then use that name on all occasions. Of course, mistakes of forgetfulness will be made to begin with, and, with all respect to the opinion of Wilberforce J in Re Howard’s Will Trusts [1961] Ch 507, 516, I would think such lapses, even after the expiration of the year, should be treated as de minimis . .
It is important to note that the assumption of a new name in fact involves at the same time a discontinuance or disuse of the old name. When ‘X’ has assumed the name ‘Y’, he has thereby discontinued or disused the name of ‘X’. He cannot sensibly either be nameless, on the one hand, or use two surnames (apart from a pen name or something of that sort), on the other. I do not think anyone could be under any misapprehension as to what he has to do if he is told in effect that if he desires to enjoy certain estates, he is to change his name from ‘X’ to ‘Y’.’
Lord Evershed MR said as to the failure of a conditional gift that it does not follow that: ‘the language used must be of so exactly precise a character that no question can ever sensibly thereafter arise on the particular facts as they have occurred, whether, according to the terms of the instrument, a divesting has or has not taken place . . So long as the concept expressed in the will … is clear and can be precisely formulated, then it is no objection to the validity of the clause that on occasion its application may give rise to difficulty.’

Judges:

Lord Evershed MR, Upton LJJ

Citations:

[1962] Ch 643

Jurisdiction:

England and Wales

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.450445

Re Croxon: 1904

A Royal Licence to take up a coat of arms specified by the testator could not be obtained because it could not be shown that the testator was entitled to those particular arms.

Citations:

[1904] 1 Ch 252

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.450446

Cheese v Lovejoy: 1877

The court considered whether a will had been revoked in being destroyed.
Held: ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two’.

Citations:

[1877] 2 PD 251

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 May 2022; Ref: scu.424270

Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others: 1946

(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: ‘but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi- that is, that the testatrix did not intend to sign this document and that this document was never intended by her or anyone to be her will. This would appear, upon careful examination, to be a very technical basis for its rejection, and upon an exact appreciation of the true facts, to lack substance. True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister. She adopted it believing that it expressed her intentions in every respect. It does in most, and can be read as carrying out her intentions. It appoints the executor she intended to appoint in the exact terms she intended to appoint it. That in itself if it stood alone would be enough, apart from this formal objection, to entitle it to probate . . It also disposes of the residue after the life interest in the exact terms except for the Christian name. There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground. The present will seems to us to differ from such copy only in degree and not in substance. No doubt the circumstances of the recital with the wrong Christian name would call for explanation . . But the fact that the paper put before the testatrix was different from that which she thought she was signing should not, we think, prevent that part of the document which she wished and believed, and which was, in fat, included, being her testamentary act. The testatrix really did know and approve of the effective provisions contained in it.’

Judges:

Fair J

Citations:

[1946] NZLR 614

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Commonwealth

Updated: 06 May 2022; Ref: scu.428466

In re Duke, Hannah v Duke: 1880

Citations:

[1880] 16 ChD 112

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Trust Co Ltd v McDougall and Others ChD 27-Jun-2000
The deceased had created a trust with constructive trusts for his four children for life, and protective trusts for remoter issue. The last child had now died, and the initial trust period had expired. The trust provided that at this point the fund . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.408590

In the Estate of Knibbs, deceased. Flay v Trueman: 1962

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.’ and ‘A testamentary act does not have to be a document or act of any sort attended by any particular formalities. Indeed, an act may be testamentary in this sense, even though the speaker did not know that he was making a will, or that he was capable of making a will at the time when be uttered the words in issue.’

Judges:

Wrangham J

Citations:

[1962] 1 WLR 852, [1962] 2 All ER 829

Jurisdiction:

England and Wales

Citing:

Cited – Re Beech 1923
Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: ‘The contention is that if a will does not have the effect intended the testator cannot be said to have known and . .

Cited by:

Cited – Davies v Global Strategies Group Hong Kong Ltd and Another QBD 25-Sep-2009
The claimants alleged that the deceased had been shot while employed by the defendants working in Iraq. The defendants said that he had been an independent contractor for whom they did not have responsibility. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 May 2022; Ref: scu.375763

The Attorney General v Price: 26 Nov 1810

Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling within the County of B. andpound;20 by the year. This is in the nature of a charitable bequest ; and, the Will being made in 1581, was sustained; and inquiries directed as to the poor relations dwelling within the county of B.

Citations:

[1810] EngR 575, (1810) 17 Ves Jun 371, (1810) 34 ER 143

Links:

Commonlii

Cited by:

Cited – Scarisbrick’s Will Trusts, In re ChD 1950
The court considered whether a trust was charitable.
Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was . .
Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Updated: 05 May 2022; Ref: scu.335760

Watson v Mary Foxon: 13 Nov 1801

Under a limitation (after estates for life to A. and B.) of ‘all and every the said premises to all and every the younger children of 3. begotten or to be begotten, if more than one equally to be divided amongst them, and to the heirs of their respective body and bodies as tenants in common, andc. and if only one child, then to such only child and to the heirs of his or her body issuing; and for want of such issue’ (‘devise of) ‘the said premises to C. N. andc.” (with several limitations over). ” And for want of such issue,’ then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of B. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective in such devise.

Citations:

[1801] EngR 456, (1801) 2 East 36, (1801) 102 ER 281

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.345702

Egerton v Jones: 16 Mar 1830

An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my marriage articles, bearing date, ande., in case of failure of issue of my body by my said wife, I give and devise the same,’ ande. He then limited the estate to his brothers in succession, and to their respective first and other sons in tail male. The Court was of opinion that the devise was good.

Citations:

[1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051

Links:

Commonlii

Cited by:

See Also – Egerton v Jones 3-May-1830
Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .
See Also – Egerton v Jones 5-Aug-1830
An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 May 2022; Ref: scu.321367

Smith v Brooksbank: 25 Jun 1834

A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.

Citations:

[1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)

Links:

Commonlii

Cited by:

See Also – Brooksbank v Smith 24-Feb-1836
In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
See Also – Brooksbank And Another v Smith 24-Feb-1836
The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice, Equity

Updated: 05 May 2022; Ref: scu.317556

Overend v Gurney: 25 Jul 1834

The testator gave real property and a sum of stock to A for her life, and after her death to his brother absolutely: and he gave legacies, which he directed to be paid as soon as convenient after hie death, to his nephews and nieces, and the residue of his property to his brother absolutely. The brother having died, the testator, by a codicil reciting that fact, and that, thereby, the devises and bequests to his brother had lapsed, gave an annuity to his brother’s widow, and directed his trustees to pay the income of the residue of his personal estate to A. for life, and gave to her all his real estates for life, and, after her death, to his trustees in trust to sell, and the proceeds to fall into his personal estate : he then gave andpound;10,000 to each of his nieces, in addition to the legacies given to them by the will, and directed that that sum for each of them should be held by his trustees for their separate use : and he gave all the clear residue of his estate (after providing for the before-mentionedlegacies, and also those given by his will) to his nephews. Held, that the legacies given to the nieces by the codicil were not payable till after A’s death.

Citations:

[1834] EngR 941, (1834) 7 Sim 128, (1834) 58 ER 785

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.317617

Harwood v Fisher: 23 Dec 1834

Where the first husband of a woman entitled to a legacy of 600l, chargeable, in default of personalty, on the testator’s real estate, verbally agreed with the three devisees of the real estate to sell the legacy to them for 200l a piece, but received the consideration from one only of the devisees, taking interest on the 400l, due from the two others. Held, that to the extent to 400l. this was not a reduction of the legacy into possession, and that to a suit instituted by the woman and her second husband to recover what was due on the legacy, the representatives of the first husband were not necessary parties. Where facts are stated in the answer which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the Court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts.

Citations:

[1834] EngR 1176, (1834) 1 Y and C Ex 110, (1834) 160 ER 46

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.317852

Malone of Rathcaslin In The County Of Westmeath v Malone Of Coburg Place In The City Of Dublin, O’Connor, Tuite, Ardill, O’Connor, Thomas Richard Rooper, John Conroy Browne, L’Estrange, L’Estrange,: 27 Jun 1841

JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.

Citations:

[1841] EngR 890, (1841) West 637, (1841) 9 ER 627

Links:

Commonlii

Family, Wills and Probate

Updated: 05 May 2022; Ref: scu.309068

Butlin v Barry: 5 Sep 1837

(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.

Citations:

[1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215

Links:

Commonlii

Citing:

See Also – Barry v Butlin 22-Jun-1836
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

Cited by:

Appeal from – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 05 May 2022; Ref: scu.314101

Lanyon v Carne et al Executors Of Cara: 1845

A lease is made to A. for 99 years, if A. and B. or either of them shall so long live, to commence after the death of C. yielding and paying 31. for a heriot on the respective deaths of A. and B, and A. dies living C., the heriot is of the same nature with a rent, and is not payable by the executors of A.

Citations:

[1845] EngR 141, (1845) 2 Wms Saund 165, (1845) 85 ER 912

Links:

Commonlii

Wills and Probate, Landlord and Tenant

Updated: 05 May 2022; Ref: scu.303283

M’Mohon v Burchell: 5 Jun 1846

Citations:

[1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936

Links:

Commonlii

Citing:

See Also – MacMahon v Burchell 20-Apr-1843
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
See Also – M’Mohan v Burchell 30-Apr-1845
. .
See Also – M’Mahon v Burchell CA 1846
Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

Cited by:

See Also – William M’Mahon And Wife v Burchell And Another 4-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Landlord and Tenant, Equity

Updated: 05 May 2022; Ref: scu.302655

William M’Mahon And Wife v Burchell And Another: 4 Dec 1846

Citations:

[1846] EngR 1180, (1846) 2 Ph 127, (1846) 41 ER 889

Links:

Commonlii

Citing:

See Also – MacMahon v Burchell 20-Apr-1843
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
See Also – M’Mohan v Burchell 30-Apr-1845
. .
See Also – M’Mahon v Burchell CA 1846
Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
See Also – M’Mohon v Burchell 5-Jun-1846
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Landlord and Tenant

Updated: 05 May 2022; Ref: scu.303075

M’Mohan v Burchell: 30 Apr 1845

Citations:

[1845] EngR 724, (1845) 1 Holt Eq 186, (1845) 71 ER 716

Links:

Commonlii

Citing:

See Also – MacMahon v Burchell 20-Apr-1843
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .

Cited by:

See Also – M’Mahon v Burchell CA 1846
Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
See Also – M’Mohon v Burchell 5-Jun-1846
. .
See Also – William M’Mahon And Wife v Burchell And Another 4-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Landlord and Tenant

Updated: 05 May 2022; Ref: scu.303866

Bentley v Oldfield: 8 Nov 1854

Devise of ‘my property in houses, andc., at G.’ held (independently of Wills Act) to pass the fee.
A testator gave his real and personal estate to trustees, for the maintenance of his children until they attained twenty-one. As thay arrived at that age respectively, he directed it to be divided as follows: A legacy of 2100 to his son, and his property at G. (freehold), between his daughters.
Held: on a deficiency of personal estate, that the legacy was not charged on the real estate.
Observation on the doctrine of Roberts v Walker, 1 Russ and Myl 752.
A testator, in the first instance (as was held) devised freeholds to his three daughters equally, in fee, and he further willed the several shares to his three daughters as before mentioned, to have the interest for their use during their natural lives, and afterwards devised equally amongst their children, and, for want of children, to go to their husbands, if living.
Held: that the daughters took an estate for life, and in defauIt of children, their husbands, if living, took the fee.

Citations:

[1854] EngR 859, (1854) 19 Beav 225, (1854) 52 ER 335

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.293716

Kane v Reynolds: 25 Nov 1854

The solicitor for the affairs of the Treasury, as nominee of the Crown, having taken out letters of administration of the goods of an intestate on the assumption that he had died without next of kin, was held not entitled to the costs of a suit instituted by a person rightfully claiming as next of kin.

Citations:

[1854] EngR 953, (1854) 4 De G M and G 565, (1854) 43 ER 628

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.293810

Egerton v Lord Brownlow: 20 Aug 1851

John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.

Citations:

[1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180

Links:

Commonlii

Cited by:

Appeal from – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 05 May 2022; Ref: scu.297105

Knox v Wells: 22 Dec 1864

ER A testator devised Blackacre to trustees upou trust out of the rents and profits to pay an annuity to J and A, his wife, jointly, and a similar annuity to the survivor, and upon trust to accumulate the residue for the benefit of the children of J and divide the same among such children when the youngest attained 30, ‘and if any of such children should die under 0 leaving issue such issue were to take their parent’s share. Held, that all the children who survived, took vested interests.

Citations:

[1864] EngR 882, (1864) 2 H and M 674, (1864) 71 ER 626

Links:

Commonlii

Wills and Probate

Updated: 05 May 2022; Ref: scu.282596

Re Heys: 1914

Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will nonetheless be admitted to probate.

Citations:

[1914] P 192

Cited by:

Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Lists of cited by and citing cases may be incomplete.

Wills and probate

Updated: 05 May 2022; Ref: scu.270805

Russell’s Executor v Balden: 1989

Citations:

1989 SLT 177

Jurisdiction:

Scotland

Cited by:

Cited – Guild v Inland Revenue Commissioners HL 6-May-1992
The will left land for a sports centre to a local authority which no longer existed. If the gift was charitable, the gift would be applied cy pres, but if not it would fail and pass to the family and be subect to Inheritance Tax.
Held: A gift . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 May 2022; Ref: scu.273190

Re Wynn (deceased): 1952

A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public policy, and: ‘anything which attempts to deprive the parties of their right to bring an action is unlawful as an attempt to oust the jurisdiction of the court’.

Judges:

Danckwerts J

Citations:

[1952] Ch 271

Cited by:

Cited – Aribisala v St James Homes (Grosvenor Dock) Ltd ChD 12-Jun-2007
The parties had agreed in a contract for the sale and purchase of land to exclude the application of section 49(2). The buyer had failed to comply with a notice to complete.
Held: The parties cannot contract out of section 49(2). The . .
Cited – Creasey and Another v Sole and Others ChD 24-May-2013
The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm. . .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 May 2022; Ref: scu.267650

Waterer v Waterer: 1873

Citations:

[1873] LR 15 Eq 402

Jurisdiction:

England and Wales

Cited by:

Cited – Robinson v Reeve ChD 14-Jun-2002
The parties were brother and sister, owning and renting properties. The issue was whether they were in partnership, and to what extent properties in one name were held in trust for the two.
Held: A partnership was not to be inferred solely . .
Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate

Updated: 05 May 2022; Ref: scu.181806

Gibbons and Another v Nelsons (A Firm) and Another: ChD 21 Apr 2000

The claimant was potentially interested in a fund as a beneficiary if her sister had exercised a power of appointment in her favour. She claimed that one firm of solicitors, who drafted a Will in 1986 for her sister, were negligent because that Will had the effect of exercising the power in favour of various charities, and that a second firm who drafted a Will in 1994, were similarly negligent in that the Will was in similar terms but with different charities nominated in not spotting and dealing with the point.
Held: For a solicitor who drafts a will to be liable to a disappointed beneficiary who might have taken an interest under the will, where he was unaware of the particular individual, he must be shown at least to have been aware both of the benefit intended to be created, and of the class of beneficiaries to which it would apply. Once a solicitor accepted instructions, it was his responsibility to show that his responsibility did not extend to the aspect of the will under which the claim arises. That burden was discharged in this case.

Judges:

Blackburne J

Citations:

Times 21-Apr-2000, Gazette 11-May-2000, [2000] PNLR 734

Jurisdiction:

England and Wales

Cited by:

Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 05 May 2022; Ref: scu.80808

Antonius, Second Son of The Said Count Leslie v The Said James Leslie, Et Alii: HL 29 Apr 1742

Tailzie. – Clause.- Found that a clause providing ‘that in case any heir of entail should succeed to a certain other estate, he and the heirs male of his body so succeeding, should be obliged to denude in favour of the next heir;’ and that the estate in that event should be redeemable ‘from the said heirs male who shall succeed to both the said estates, and his heir male foresaid,’-has not the effect of excluding all the heirs male of the body of the person so succeeding (so as to make room for the next branch,) but only his eldest son, or heir apparent; and the succession opens to the second son.

Citations:

[1742] UKHL 1 – Paton – 324

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 04 May 2022; Ref: scu.556481

Morrow v Morrow: 1995

While it may be uncommon, the fact that a claimant stands to inherit whatever may fall into the actual death estate does not preclude an order being made under sections 10 and 2 in her favour.

Judges:

Campbell J

Citations:

[1995] NIJB 46

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 10 13

Cited by:

Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Cited – K v K FD 21-Apr-2015
F and M had been involved in protracted and bitter litigation on their divorce. They had come each to seek the committal of the other for alleged perjury and otherwise, but those applications were not being pursued.
Held: The father’s . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate, Northern Ireland

Updated: 04 May 2022; Ref: scu.545895

In re Jane Davies: 1891

An action brought by a residuary legatee against an executor for the administration of the testator’s estate is an action for a legacy.
An executor, qua executor, is not an express trustee.

Citations:

[1891] 3 Ch 119

Cited by:

Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 May 2022; Ref: scu.537361

In re Hawksley’s Settlement; Black v Tidy: 1934

A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
Held: Neither feature was sufficient to effect a complete revocation of the earlier will. What was conclusive in that regard was that the second will was wholly inconsistent with the first. An implied revocation was found because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.

Judges:

Luxmoore J

Citations:

[1934] Ch 384

Jurisdiction:

England and Wales

Cited by:

Approved – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(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 . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 May 2022; Ref: scu.536793

Re Raine: 1929

Intermediate income is not payable on a contingent pecuniary legacy unless there is an express testamentary provision to the contrary. The interest falls into residue until the legacy vests.

Citations:

[1929] 1 Ch 716

Trusts, Wills and Probate

Updated: 04 May 2022; Ref: scu.533630

Vacciana v Herod: 2005

Judges:

Blackburne J

Citations:

[2005] EWHC 711 (Ch)

Cited by:

Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 May 2022; Ref: scu.519361

In re Hooper’s Settlement, Phillips v Lake: CA 1943

A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof intestate and without having married’. It was argued that this meant the persons at the death of the settlor who were entitled under the statutes in force at the same time.
Held: The argument failed. Under section 50(2) of the 1925 Act 1925, it meant the persons at the death of the settlor (in 1941) who were entitled under the statutes in force immediately before the commencement of the 1925 Act.

Citations:

[1943] Ch 116

Statutes:

Administration of Estates Act 1925 50(2)

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 04 May 2022; Ref: scu.519434

Re Allen (dec’d): CA 1953

The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in sufficiently certain terms.
Evershed MR identified the test of certainty for a condition subsequent and said that in the case of a condition precedent or qualification, no general or academic test is called for: ‘It has long been established that the courts (which are inclined against the divesting of gifts or estates already vested) will hold a condition subsequent void if its terms are such that (apart from mere difficulties of construction of the language or of the ascertainment of the facts) it cannot be clearly known in advance or from the beginning what are the circumstances the happening of which will cause the divesting or determination of the gift or estate.’
. . And ‘All that the claiming devisee has to do is at the relevant date to establish, if he can, that he satisfies the condition or qualification whatever be the appropriate test. If the formula is such as to involve questions of degree (as, prima facie, is implicit in any requirement of ‘adherence’ or ‘attachment’ to a particular faith or creed), the uncertainty of the test contemplated may well invalidate the formula as a condition subsequent but will not, in my judgment, necessarily do so in the case of a condition precedent; for if the claimant be able to satisfy any, or at least any reasonable test, is he disentitled to the benefit of the gift?’
A condition precedent that the devisee should at some relevant date be a tall man would be valid. Even though tallness is a matter of degree, a claimant who is six feet six inches tall could fairly be said to have satisfied the testator’s requirement judged by any reasonable standard. He contrasted that example with a condition requiring the devisee to be ‘a pure blooded Englishman’, words which would be incapable of any reasonably clear meaning or sensible definition at all.
In the circumstances before the Court: ‘it would not be right to say that the appellant could not seek to establish as a matter of fact that Reginald Seymour Allen was, at whatever may be held to be the relevant date, an adherent to the doctrine of the Church’, noting that the onus would be on the appellant to prove compliance with the condition. His Lordship found it unnecessary to attempt a full exposition of the meaning of the clause in the will, in the absence of the appellant’s evidence.
Birkett LJ expressed similar views as to principle and reached the same conclusion.
Romer LJ, dissented but applied what a similar principle, finding that an inquiry whether any particular individual was or was not an adherent to the doctrine of the Church of England (but not an inquiry as to whether a particular individual was or was not a member of the Church) would be doomed to failure from the start, on the ground that it would not be possible to answer that question in regard to anyone at all.

Judges:

Evershed LJ MR, Birkett LJ

Citations:

[1953] Ch 810, [1953] 1 All ER 308

Cited by:

Applied – Re Selby’s Will Trusts ChD 1966
. .
Applied – Re Tarnpolsk ChD 1958
It was impossible to give sufficient meaning to the phrase ‘a person of the Jewish race’, and the condition failed for conceptual uncertainty, even in a condition precedent. . .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 May 2022; Ref: scu.510145

Gregson v Taylor: ChD 1917

Hill J said: ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’

Judges:

Hill J

Citations:

[1917] P 256

Jurisdiction:

England and Wales

Cited by:

Approved – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 May 2022; Ref: scu.450212

In re Dennis (Deceased): 1981

The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of the applicant’s debts was not for his maintenance, because there was nothing to suggest that payment of those debts would do anything to help his future maintenance. Browne-Wilkinson J said: ‘the court is reluctant to make further provision for someone for whom large sums of money have been provided and which have been dissipated by him.’ It should ask whether there is ‘a case fit to go to trial’.
Browne-Wilkinson J said:’The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry (deceased) . . [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in In re Christie (deceased) . . [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment the word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.’

Judges:

Browne-Wilkinson J

Citations:

[1981] 2 All ER 140

Statutes:

Inheritance (Provision for Family and Dependents) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

Cited by:

Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Cited – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.431728

Cameron v Treasury Solicitor: 1996

The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between them for the next 19 years, although they had remained in touch.
Held: The fact that she was in necessitous circumstances did not create any obligation on the deceased to provide for her from his estate. There was no other claimant and that his small estate passed as bona vacantia to the Crown did not alter the fact that their personal and financial relationship was long in the past. That the devolution of the estate to the Crown could not enhance the applicant’s claim and was a neutral factor, not relevant to the criteria to be taken into account under section 3 of the 1975 Act.

Citations:

[1996] 2 FLR 716

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3

Jurisdiction:

England and Wales

Cited by:

Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Cited – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.431726

In the Goods of Hunt: 1875

Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it.’

Judges:

Sir J Hannen

Citations:

(1875) LR 3 PandD 250

Statutes:

Wills Act 1837

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.428464

Re Meyer: 1908

Two sisters made mirror codicils to their wills but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She meant to sign a totally different document. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were cross-codicils by two sisters. But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document.’

Judges:

Sir Gorell Barnes P

Citations:

[1908] P 353, [1908] UKLawRpPro 23, (1908) 99 LT 881

Links:

Statutes:

Wills Act 1837

Jurisdiction:

England and Wales

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.428465

Re Brander: 1952

(British Columbia Supreme Court)

Citations:

[1952] 6 WWR (NS) 702

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 02 May 2022; Ref: scu.428467

Collins v Elstone: 1893

An insurance agent, asked to prepare a will relating only to an insurance policy, by mistake included a clause revoking prior wills. He believed, in good faith, and assured the testatrix, that this had effect only in relation to the insurance money.
Held: It had general effect and contrary to the testatrix’s intentions and instructions, revoked her prior will entirely. The mistake had been not as to the words used but as to the legal effect.

Citations:

[1893] P 1

Wills and Probate

Updated: 02 May 2022; Ref: scu.424267

Sugden v St. Leonards: 1876

Where a will cannot be found after the testator’s death, but was last known to have been in his possession, it will be presumed to have been destroyed by the testator with the intention to revoke it.

Citations:

[1876] 1 PD 154

Wills and Probate

Updated: 02 May 2022; Ref: scu.424276

Gill v Gill: 1909

The court was asked whether the deceased’s will had been revoked when destroyed by his wife.
Held: A failure by the testator to stop her destroying his will did not amount to ‘direction’ that it should be destroyed, and nor could his subsequent ratification of the wife’s act amount to a direction to revoke it, since the intentention to revoke the will must exist at the same time as the act of revocation.

Citations:

[1909] P 157

Wills and Probate

Updated: 02 May 2022; Ref: scu.424272

In the Estate of Wayland: 1951

Where a testator makes will in different jurisdictions, if each will deals only with property in a different country, the later will does not revoke the earlier one even if it does contain a revocatory clause.

Citations:

[1951] 2 All ER 1041

Cited by:

Criticised – Aldrich v Attorney-General ChD 1968
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.424268

Bull v Palmer: 1685

In indebitatus in detinet only on insimul computasset to the executot. Polyxphen praied costs on nonsuit, being as his own debt, which was opposed, because it appears all was as executor, and the suit in that right, as upon escape in executors time, 2 Cr. 361, Barrel. But by Wild this is a matter in the plaintiffs own cognizance, and the accompt is the ground of this actiion, and need not be said as executor, nor shew testament in declaration, but only in the accompt, and therefore costs are to be paid. Twisden None paied costs at common-law, before 23 H. 8, cap. 15, and this is only between parties, which is intended in his proper right, not as executor, and whereever the executor must make his title as executor, though the debt accrew in his time, as here he shall not pay costs ; contra in trover on conversion in his own time, there he need not be named executor ; but here the accompt cannot be alledged to the plaintiff generally, but must say as executor; and 1 Cr. 29, arid Hutt. 78, Peacock and Townly, is doubtfully reported, but must be ruled on that difference, which Rainsford Ch. J. agreed ; and the profert literas testamentarias is not necessary, but aided by verdict : so by Jones Justice, The defendant shall pay no costs, for this money recovered shall be assets, and the account is as executor as on a collateral promise, and per Curiam contra Wild no costs.

Citations:

[1685] EngR 522, (1685) 3 Keb 643, (1685) 84 ER 928 (B)

Links:

Commonlii

Costs, wills and Probate

Updated: 02 May 2022; Ref: scu.397297

Dolman v Smith: 1716

A. directed his debts and legacies to be paid out of the rents of his real estate. and that his executor should receive the rents until his nephew comes to the age of 25 years, and to pay the surplus of the rents to his nephew at 25, and devises the residue of his personal estate to his nephew. The nephew dies an infant ; the surplus of the personal estate not being given to a stranger, but to the same person to whom the lands were given, cannot be taken to be exempt from the debts.

Citations:

[1716] EngR 14, (1716) Prec Ch 456, (1716) 24 ER 204

Links:

Commonlii

Wills and Probate

Updated: 02 May 2022; Ref: scu.390677

Sibthorp v Moxton: 10 Nov 1747

A woman by will forgives a bond-debt to her son-in-law, and desires her executor to deliver up the bond to be cancelled ; this held not to be lapsed by his dying before the testatrix.

Citations:

[1747] EngR 193, (1747) 1 Ves Sen 49, (1747) 27 ER 883 (B)

Links:

Commonlii

Cited by:

Cited – The Commissioner of Stamp Duties v Bone and Others PC 5-Apr-1976
(Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.380209

Attorney-General v The Painter-Stainers Company: 31 Oct 1788

On further directions – Where an intention appears in a testator to give the whole of a fund to a charity, the objects whereof are not sufficient to exhaust the whole, the Court will apply the residue as nearly to the testator’s designation as it can. But such defects will not be supplied without some such intention appearing to guide the Court, which cannot go so far as to dispose of a fund merely on seeing a general intention in the testator to die testate as to the whole

Citations:

[1788] EngR 210, (1788) 2 Cox 51, (1788) 30 ER 24 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Charity

Updated: 02 May 2022; Ref: scu.368510