A devisee in fee may by deed, without matter of record, disclaim the estate devised.
There is a presumption that, when a gift of property is made, the donee is presumed to accept it unless, upon learning of the gift, the recipient repudiates it

Citations:

[1819] EngR 658, (1819) 3 B and A 31, (1819) 106 ER 575

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.331861

A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected from all the circumstances of the case. Sir John Nicholl said ‘In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation . . in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator.’

Judges:

Sir John Nicholl

Citations:

[1824] EngR 70, (1824) 2 Add 239, (1824) 162 ER 281

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – 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 – Parkinson v Fawdon ChD 30-Jul-2009
The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be . .
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.327061

A testator gave one estate to James, upon trust to pay to testator’s wife andpound;18 a year for life, and after her decease he gave the estate to Thomas. The testator also gave a second estate to James, upon trust to pay testator’s wife andpound;28 a year for life, and after her decease he gave this estate absolutely to James ; and he declared, that if James should neglect or refuse to pay the annuities from either of the said estates when they became due, that his wife should have power of selling the estates, and to appropriate the money to her own use, the rents being insufficient to pay the annuities: Held, that the widow had a right to sell unless James paid the full amount of the annuities, but that he was not personally bound to pay them.

Citations:

[1840] EngR 301, (1840) 2 Beav 256, (1840) 48 ER 1178

Links:

Commonlii

Wills and Probate

Updated: 02 May 2022; Ref: scu.309727

Citations:

[1845] EngR 1144, (1845) 2 Holt Eq 422, (1845) 71 ER 930

Links:

Commonlii

Wills and Probate

Updated: 02 May 2022; Ref: scu.304286

A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court.
The right of the heir and that of a devisee to this issue, distinguished ; the former is absolute, the latter is in the discretion of the Court.
Issue devisavit vel non granted to a devisee after a decree in Ireland against the will and an order refusing a new trial ; and although subsequently an attesting witness, who had been examined in Ireland, and whose cross-examination was deposed to have been very effective in support of the heirs’ case, had died ; the devisee having appealed to the House of Lords, and not appearing to be chargeable with delay, either in the appeal or in this suit.

Citations:

[1854] EngR 853, (1854) 1 K and J 124, (1854) 69 ER 396

Links:

Commonlii

Citing:

See Also – Boyse v Rossborough 5-Dec-1853
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
See Also – Boyse v Rossborough 11-Feb-1854
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .

Cited by:

See Also – Boyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.293710

Citations:

[1857] EngR 783, (1857) 3 K and J 608, (1857) 69 ER 1252

Links:

Commonlii

Citing:

See Also – Brooke v Garrod 1857
The testator directed his trustees to offer all his real estate to his brother at the price of pounds 2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.290529

By agreemerit made in 1794, 80001. stock was transferred by O. to H, upon the terms that H should repay the money produced by the sale of it or replace the stock at the option of O, and in the mean time pay interest at the rate of 5 per cent., the loan was secured by bond, mortgage, and a deed of covenant. O. and H being dead, E. O being the legatee ancl heiress, but not the personal representative of O., and J H. being the devisee of H , J. H. applied to E O. to assist him to raise moNey, which E. O. agreed to do on having a security for the replacement of the stock. E. O. accordingly assigned the bond mortgage, and deed of covenant of 1794, to H. and P, by way of mortgage, to secure an advance to J. H., and in consideration thereof, J. H, iri 1842, by iindenture, conveyed to E. O. the premises comprised iri the original mortgage, together with other lands, by way of mortgage, with a proviso and covenant to secure the transfer to E O. of 80001 stock E O died, and by her will forgave the mortgage debt, of 1842 to J H. Held, that the mortgage and covenant of 1842 were not so connected with the illegal agreement of 1794 as to be usurious and void, and that therefore legacy duty was payable on the bequest

Citations:

[1857] EngR 577, (1857) 2 H and N 416, (1857) 157 ER 172

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.290323

Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to embrace such an extraordinary contingency. Can the language which she has employed be made to include such an intention? If it cannot, then we are not at liberty to go out of the will to bring into it something which is not to be found there. The testatrix says, I give to my husband certain property, and in case he should die in my lifetime, then to the appellant [W. W.]. She clearly intended that the appellant should not have her property if her husband survived her, for on that event it was to go to him. The appellant can only be entitled in case the husband fails to take by survivorship. If the husband survived, the appellant’s bequest never came into existence. But he cannot show that the husband did not survive, and therefore he fails altogether in establishing the foundation upon which alone his right can be built.’

Judges:

Lord Chelmsford

Citations:

[1860] EngR 525, (1860) 8 HLC 183, (1860) 11 ER 397, (1860) 8 HL Cas 183

Links:

Commonlii

Cited by:

Cited – Drummond’s Judicial Factor v LA SCS 9-May-1944
There is no presumption as to survivorship in a common calamity . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.285364

Letters of Admiriistration with Will annexed -Grant de bonis non – Residuary Legatee – Next of Kin

Citations:

[1859] EngR 400 (B), (1859) 1 Sw and Tr 290

Links:

Commonlii

Wills and Probate

Updated: 02 May 2022; Ref: scu.287752

An executor, under a bona fide belief that on the true construction of the will they were entitled thereto, sold out stock, retained one-third and paid two-thirds to the co-executors. It having been declared in the suit that the next of kin were entitled to this fund, and that the executor was bound to restore it : Held, that he was only liable to pay interest on the one-third retained by himself.

Citations:

[1862] EngR 779, (1862) 31 Beav 349, (1862) 54 ER 1173

Links:

Commonlii

Citing:

See Also – Saltmarsh v Barrett CA 27-Apr-1861
A testator gave legacies of nineteen guineas to each of his executors, and he bequesthed his residue to the m ‘absolutely’, charged with certain legacies. He also charged them to deduct their costs, charges and expenses out of any part of his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.286945

A testator in 1541, devised all the freehold property ‘I am seised or etititled in feesimple’ in strict settlement. He afterwards devised all the copyholds ‘I am or at the time of my death shall be possessed of’ upon trusts corresponding with those of his freeholds, The testator died in 1861. Held, that freeholds acquirecl after the date of the will passed by the devise.

Citations:

[1861] EngR 228, (1861) 30 Beav 300, (1861) 54 ER 904

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 02 May 2022; Ref: scu.283989

Property was, by will, limited to the Defendant, on condition of his settling some Scotch estates within a limited time on trusts, the validity and effect of which were doubtful. The Defendant settled the estates within the time, in general terms, on the persons on whose behalf the condition was imposed. Held, that this was a sufficient compliance with the condition.

Citations:

[1865] EngR 292, (1865) 34 Beav 338, (1865) 55 ER 665

Links:

Commonlii

Wills and Probate

Updated: 02 May 2022; Ref: scu.281204

The court has no inherent jurisdiction to remove a personal representative in that capacity.

Citations:

[1898] 2 Ch 352

Cited by:

Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 May 2022; Ref: scu.267734

An executor owes no duty to inform a legatee of the terms of his legacy.

Citations:

[1904] Ch 656

Jurisdiction:

England and Wales

Cited by:

Cited – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA 8-Feb-2008
The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 May 2022; Ref: scu.264289

The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in solemn form. One member of the family had acknowledged service of the action and had indicated that he wanted to be satisfied that the will had been properly executed but did not intend to put forward any positive case.
Held: The action was dismissed, but the court denied permission to the defendant to discontinue the counterclaim as against the family member, because a serious issue had been raised as to the validity of the will. The defendant executor was required to continue to seek an order for a grant of probate in solemn form.

Citations:

Lawtel 09-May-2005, [2005] All ER (D) 96

Cited by:

See Also – Briscoe v Green ChD 13-Jul-2006
. .
Cited – Wylde v Culver ChD 12-Apr-2006
The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 May 2022; Ref: scu.253195

Section 3 of the 1861 Act abrogated the common law rule that a change of domicile operated as a revocation of a testamentary disposition. The long title of the Act was ‘An Act to amend the law with respect to wills of personal estate made by British subjects’
Held: The section was of general application.

Judges:

Gorrell Barnes J

Citations:

[1964] 2 QB 580

Statutes:

Wills Act 1861 3

Cited by:

Cited – L, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 May 2022; Ref: scu.249365

An example of a gift which is made under a special consideration is where the gift satisfies a particular moral duty identified in the will.

Citations:

(1885) 28 ChD 552

Jurisdiction:

England and Wales

Cited by:

Cited – Barraclough v Mell and others ChD 1-Dec-2005
Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: the tustee exemption clause was effective to protect the executor as such. She had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.236343

The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J discussed the strength of the presumption in favour of due execution, saying: ‘The force of the presumption or maxim varies with all the circumstances. Where a document is entirely regular in form it may be very strong; but where, as here, it is irregular and unusual in form, the maxim cannot apply with the same force.’ The question he had to decide was ”whether, in all the circumstances of this particular case, it is more probable that what was done was done as it ought to have been done to render the will valid.’

Judges:

Phillimore J

Citations:

[1961] 1 WLR 892

Cited by:

Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Appeal from – In the Estate of Bercovitz, deceased; Canning v Enever CA 1962
Upheld – The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. . .
Cited – Re Beadle 1974
Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed . .
Cited – Lim v Thompson ChD 14-Oct-2009
The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.223794

The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P., did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose.
Held: The appeal was dismissed: ‘I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.’

Judges:

Earl of Selborne LC

Citations:

(1884) 9 PD 149

Cited by:

Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
Cited – Ahluwalia v Singh and Others ChD 6-Sep-2011
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.223796

The court considerd the requirements for the proper execution of a will: ‘The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting to the fact that he saw the testator sign it; that is, he must put his name as witness’.

Judges:

Lord Penzance

Citations:

(1871) LR 2 PandD 300

Jurisdiction:

England and Wales

Cited by:

Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.223792

Upheld – The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will.

Citations:

[1962] 1 WLR 321, [ 1962] 1 All ER 552

Jurisdiction:

England and Wales

Citing:

Appeal from – In the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .

Cited by:

Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.223795

A mistress of the deceased could make a claim under the 1975 Act.

Citations:

[1979] 1 WLR 1353

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 30 April 2022; Ref: scu.220644

It is for the person making application for provision from an estate to establish that the deceased was domiciled in England and Wales.

Citations:

[1941] Ch 192, [1941] 1 All ER 236

Wills and Probate

Updated: 30 April 2022; Ref: scu.220634

The deceased owned an apartment subject to a mortgage. He left it in his will to his fiancee. There was a dispute as to whether the property was left subject to the mortgage. He had taken out an endowment policy to repay the mortgage on his death.
Held: The Act provided that the property should be taken subject to the charge unless the deceased indicated some contrary intention. The fact that the will did not say anything was not conclusive. He had taken out an endowment insurance policy to repay the charge on his death. This deliberate arrangement of his affairs was sufficient ‘contrary or other intention’ to mean that the property was to be taken free of the charge.

Judges:

Kosmin QC

Citations:

Times 24-Nov-2004

Statutes:

Administration of Estates Act 1925 35

Jurisdiction:

England and Wales

Wills and Probate

Updated: 30 April 2022; Ref: scu.219701

Supreme Court of South Australia – The mere eccentricity of a testator is not sufficient to avoid the will.

Judges:

White J

Citations:

[1989] 51 SASR 337, [1989] SASC 1747, 153 LSJS 146

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.219631

The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything and everybody. He had stopped going around his garden and just sat in the kitchen all the time, often with his head in his hands.
Held: The testator did not have testamentary capacity: ‘Now of course what Simpson does not say, although counsel tries to submit that it does is that a failure to observe the golden rule will invalidate the will; it says nothing of the kind, but it points very starkly to the problems that professionals face when they are drawing wills and they do not take these precautions or precautions as near to them as the practicalities require.’
When taking instructions for a will, and where the instructions were in fact given by someone other than the testator and the testator was merely being asked to agree to someone else’s proposition, the use of open rather than closed questions was an essential minimum of good practice.

Judges:

His Honour Judge Cooke

Citations:

[1997] CLY 4733, [2000] WTLR 1083

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .
Approved – Kenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .

Cited by:

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 – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
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 . .
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 – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.219633

The testatrix left the residue of her estate absolutely to her husband ‘whom failing should he predecease me or should we die simultaneously or be held to have died simultaneously to any child or children born or to be born to me and the said Andrew Hunter, equally between them if more than one: ‘with a substitutionary gift in favour of the issue of any child who predeceased her’. The will continued: ‘In the event of the said Andrew Hunter predeceasing me or of our simultaneous death as aforesaid and there being no surviving child (or issue) born to me and the said Andrew Hunter so as to succeed to my estate, in that event only I leave the whole residue of my estate absolutely to my sister [and stepson] equally . .’ The testatrix was murdered by her husband, Andrew Hunter. There were no children of the marriage. The testatrix’ sister argued in favour of an intestacy.
Held: The Court decided in favour of an intestacy. There was clear authority that the forfeiture rule in Scotland is based at least partly upon considerations of public policy: ‘We agree with counsel for the heirs on intestacy that such a rule of public policy should be carried no further than is necessary to achieve its object. In our opinion whilst considerations of public policy lead to the right of Andrew Hunter being forfeited, there is no consideration of public policy which would support the deceased’s estate being then distributed as if Andrew Hunter had died.’ The gift over in favour of the testatrix’ sister and stepson only came into play in the event of Andrew Hunter’s having predeceased her, and that there was no justification for seeking to extend it to a situation where Andrew Hunter had not predeceased her but had in fact survived her.

Judges:

Lord Ross LJC

Citations:

(1992) SLT 1141

Jurisdiction:

Scotland

Cited by:

Cited – In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others CA 17-Apr-1997
The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.211377

The claimants sought partial rescision of agreements of compromise of disputes within the etsate on the basis that agreement had been obtained by fraud.
Held: Recission of part only of an agreement was not possible.

Citations:

[2002] 1 LL Rep 271

Citing:

See also – Molestina and others v Ponton and others ComC 21-Nov-2002
The parties challenged agreements compromising claims on the estate of the deceased, saying they had been obtained by misrepresentations.
Held: The claimants did not establish that the representations claimed had in fact been made. . .

Cited by:

See also – Molestina and others v Ponton and others ComC 21-Nov-2002
The parties challenged agreements compromising claims on the estate of the deceased, saying they had been obtained by misrepresentations.
Held: The claimants did not establish that the representations claimed had in fact been made. . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.200645

The intention of a purported witness to the execution of a will is immaterial if the will is in proper form.

Judges:

Langton J

Citations:

[1934] 1 All ER 359, (1934) 150 LT 417

Cited by:

Doubted – 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. . .
Disapproved – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 April 2022; Ref: scu.198737

For the purpose of proving the correct attestation of a will it is sufficient that the will bears the signature of the testator, that two persons are asked to sign (and do sign) as witnesses and the testator’s signature is so placed that the witnesses could see it, whether or not they in fact did so.

Citations:

(1888) 13 PD 102

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: 30 April 2022; Ref: scu.198740

The House was required to interpret a will where a benefit was to pass only if someone was to die ‘and not have children.’
Held: ‘It is ‘the universal rule’, that in construing statutes, as well as in construing all other written instruments ‘the grammatical and ordinary sense of the word is ‘to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity ad inconsistency, but no further’.

Judges:

Lord Wensleydale

Citations:

[1857] EngR 335, (1857) 6 HLC 61, (1857) 10 ER 1216, [1857] 6 HL Cas 61

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Vacher and Sons Ltd v London Society of Compositors HL 18-Nov-1912
Lord Moulton said that the danger of departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’.
Lord Haldane LC after stating that . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 April 2022; Ref: scu.189957

The testatrix, a nun, left her property to whoever was abbess of the convent at the date of her death. The nun who witnessed the will was later that abbess. The gift was challenged under the Act.
Held: The act took effect where the gift was taken beneficially. The gift remained effective here because the gift was taken as trustee for the convent, and also that at the time the will was made the person who would eventually take, could not be ascertained.

Citations:

[1936] Ch 520

Statutes:

Wills Act 1837 15

Wills and Probate

Updated: 29 April 2022; Ref: scu.182732

The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions including whether the deceased knew and approved of the residuary clause giving the residue to the propounders. The jury answered that question in the negative.
Held: It was open to the jury so to decide, having regard to the circumstances, which included instructions to the draftsman of the will which left open to question whether the executors were to be given the residue as trustees for certain children. Once doubt is cast on the involvement of a witness to the execution of a will, it is for the person proposing the will to satisfy ‘the onus of shewing the righteousness of the transaction’. Lord Hatherley said that: ‘When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, . . those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator’.
By ‘reading’ or ‘reading over’ there must be more than a mere literal, physical act of reading. The testator must be conscious of the terms of the will. The court is not required to make some moral judgment nor is it given some licence to refuse probate to a document of which it disapproves.
Lord Hatherley said that: ‘When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, . . those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator’.

Judges:

Lord Hatherly

Citations:

(1875) LR 7 HL 448

Cited by:

Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
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: 29 April 2022; Ref: scu.182181

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 was required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applied. Applying those principles, the story behind the proposed will was not credible, and ‘I have without hesitation concluded that in the light of all the evidence Naseem did not sign the Will and that her signature on that document is a forgery.’
Barling J addressed the law: ‘Mr Charles Machin of counsel, who appeared for the Defendant, accepted that 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. He also accepted that cogent proof is required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applies …’

Judges:

Barling J

Citations:

[2013] EWHC 4079 (Ch), [2014] WTLR 387

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’ . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Fuller v Strum ChD 20-Dec-2000
Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .
Cited – Vacciana v Herod 2005
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 April 2022; Ref: scu.519347

A testatrix bequeathed the residue of her moveable estate to R M, and other two persons ‘equally, share and share alike, and failing all or any of them by their predeceasing me, to their several and respective executors and representatives whomsoever, whom I do hereby appoint to be my residuary legatees.’ R M predeceased the testatrix leaving a will by which he nominated executors and directed them to invest the residue of his estate for the liferent use of his brother, and thereafter to divide the fee among certain charities.
On the testatrix’s death her executors paid inventory and legacy-duty on R M’s share of residue, on the footing that it was a direct bequest from her to his executors, but the Crown claimed the same duties from R M’s executors, on the ground that the third of the residue had been disposed of by his will.
Held ( aff. the judgment of the First Division) that the one-third share of residue was not chargeable with a second duty as a legacy under R M’s will, in respect that he was not empowered by the will of the testatrix to dispose of her estate.

Judges:

Lord Chancellor (Lord Herschell), and Lords Watson, Ashbourne, and Morris

Citations:

[1894] UKHL 627, 31 SLR 627

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 27 April 2022; Ref: scu.634085

A testator by his trust-disposition and settlement directed his trustees to pay to Mrs S., out of funds invested in his business, a legacy of pounds 4000, with interest at the rate of 5 per cent. if she allowed the money to remain in the business.
In an indenture of settlement made three years previously in contemplation of the marriage of Mrs S., the testator had bound his executors, within six months after his death, to pay to the trustees named in the indenture a sum of pounds 4000, with interest at the rate of 4 per cent. from the date of his death, in trust for behoof of Mrs S., and her husband if he survived her, in liferent, and the children of the marriage in fee. Failing children, the sum was to revert to the granter’s estate. By the indenture Mrs S. conveyed her acquirenda to the trustees upon the same trusts, except that if there should be no son of the marriage who should attain majority, or daughter who should attain that age or marry, the trustees were to hold the capital of such acquirenda for such purposes as Mrs S. should by will direct, or failing such direction, for her representatives in intestacy.
Held ( aff. judgment of the Second Division) that the legacy was not in satisfaction of the marriage-contract provision, and that the trustees were entitled to payment of both.
Opinion by Lord Watson and Lord Shand, that it was not competent to lead evidence to show that the testator used the term ‘legacy’ in his will in a sense other than its ordinary sense.

Judges:

Lord Chancellor (Halsbury), Lord Watson, Lord Herschell, Lord Macnaghten, Lord Morris, and Lord Shand

Citations:

[1896] UKHL 511, 33 SLR 511

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 April 2022; Ref: scu.634011

Appeal from striking out of claim as an abuse of process as ‘warehousing’

Judges:

HHJ David Cooke

Citations:

[2019] EWHC 274 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 April 2022; Ref: scu.633421

Citations:

[2018] EWHC 2476 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 April 2022; Ref: scu.633184