Category: Wills and Probate

Re Barker: Nemes v Baker: 21 Apr 1995

(Supreme Court of Victoria) Tadgell J said: ‘The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator’s intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it.’

Judges:

Tadgell J

Citations:

[1995] 2 VR 439, [1995] VicRp 64

Links:

Austlii

Jurisdiction:

Australia

Citing:

Applied – Lowthorpe-Lutwidge v Lowthorpe-Lutwidge 1935
The burden that lies on the party seeking to prevent an express clause of revocation in a will from having the effect that would follow from the plain meaning of the words used. Langton J said: ‘It is a heavy burden upon a plaintiff who comes into . .

Cited by:

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: 31 January 2022; Ref: scu.375069

Lowthorpe-Lutwidge v Lowthorpe-Lutwidge: 1935

The burden that lies on the party seeking to prevent an express clause of revocation in a will from having the effect that would follow from the plain meaning of the words used. Langton J said: ‘It is a heavy burden upon a plaintiff who comes into this Court to say: ‘I agree that the testator was in every way fit to make a will, I agree that the will which he has made is perfectly clear and unambiguous in its terms, I agree that it contains a revocatory clause in simple words: nevertheless I say that he did not really intend to revoke the earlier bequests in earlier wills.’ Quite obviously the burden must be heavy upon anybody who comes to assert a proposition of that kind.’

Judges:

Langton J

Citations:

[1935] P 151

Jurisdiction:

England and Wales

Cited by:

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 . .
Applied – Re Barker: Nemes v Baker 21-Apr-1995
(Supreme Court of Victoria) Tadgell J said: ‘The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator’s intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 January 2022; Ref: scu.375068

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 action for an account in the first probate and was appointed executor. The removed executor then disclosed the second will. The action now was to decide whether the second will had been intended to revoke the first, or required rectification.
Held: There was clear evidence that the testatrix had intended by her second will to deal with all her estate including that in London, and that she intended to revoke the first will entirely. Order accordingly.

Judges:

Wyand QC J

Citations:

[2006] EWHC 1387 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20 821

Jurisdiction:

England and Wales

Citing:

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 – Birks v Birks 21-Apr-1865
Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the . .
Cited – In the Goods of Oswald 17-Feb-1874
The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’ . .
Cited – O’Learly v Douglass 25-Jan-1878
The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ . .
Cited – Methuen v Methuen 23-Jun-1817
Sir John Nicholl said: ‘In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.’ . .
Cited – Greenough v Martin 1824
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 . .
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 – Townsend v Moore PDA 21-Dec-1904
Prima facie every testamentary document duly executed in accordance with the provisions of the Wills Act ought to be admitted to probate. But, if there are two testamentary documents of the same date and it cannot be ascertained which of them was . .
Cited – Lowthorpe-Lutwidge v Lowthorpe-Lutwidge 1935
The burden that lies on the party seeking to prevent an express clause of revocation in a will from having the effect that would follow from the plain meaning of the words used. Langton J said: ‘It is a heavy burden upon a plaintiff who comes into . .
Cited – 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 – Re Barker: Nemes v Baker 21-Apr-1995
(Supreme Court of Victoria) Tadgell J said: ‘The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator’s intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if . .

Cited by:

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

Wills and Probate

Updated: 30 January 2022; Ref: scu.242702

In the Goods of Sarah Hale: 1915

The deceased was a typist employed by the Cunard Steamship Company. Her permanent assignment was as a typist on board the Lusitania but, when not working on the ship, she worked in the company’s offices in Liverpool. She made her will while working at those offices at a time when, in the view of the judge, she was definitely engaged to going on the next voyage of the vessel. That turned out to be the fatal voyage on which the Lusitania was sunk by a torpedo fired from a German submarine.
Held: She had been ‘at sea’ for the purposes of being able to make a nuncupative will.

Judges:

Madden J

Citations:

[1915] 2 IR 362

Jurisdiction:

England and Wales

Cited by:

Cited – Ayling v Summers and Others ChD 14-Sep-2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 January 2022; Ref: scu.375764

Special Case – Kilpatrick and Others (Forrest’s Trustees): SCS 20 Dec 1884

A testator directed his trustees to realise his whole estate, heritable and moveable, on the death of the longest liver of his wife and certain other annuitants, and to divide the annual proceeds of the residue equally among his nine nephews and nieces and one grandniece, for their liferent alimentary use only; on the death of any one of these beneficiaries an equal share of the residue was to become payable to the children of such deceased equally upon their attaining majority. In the event of any of these beneficiaries dying without leaving children, or in the event of the children dying without issue before attaining majority, ‘then the share of my said estates which would have otherwise fallen to such children shall accresce and belong to the survivors of the parties before named in liferent, and to their children in fee, all in the same manner as the proper shares of these parties themselves, and which shares and profits thereof accrescing as aforesaid shall be subject to the same restrictions’ as the original shares. The testator’s widow survived the other annuitants, and five of the beneficiaries predeceased her, two of whom left issue. The widow died in 1878. Another beneficiary, a niece, died after her without leaving issue. Held that this beneficiary’s share of the residue accresced and belonged in equal shares to the beneficiaries who survived her in liferent, and their children in fee, to the exclusion of the issue of the beneficiaries who had predeceased her.

Citations:

[1884] SLR 22 – 285

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 30 January 2022; Ref: scu.580633

Land v Land; In re Land, deceased: ChD 13 Jul 2006

The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying in her own excrement. The claimant had pleaded guilty to manslaughter. The court was asked whether he was nevertheless entitled to claim financial provision from the deceased’s estate under the 1975 Act, or was precluded from doing so by the 1982 Act.
Held: The claim had been made out of time and the court had no power to extend the statutory time limit. However. the claimant’s conduct did not disentitle him to relief under the 1975 Act and the court made an order for reasonable financial provision for the claimant out of his mother’s estate. The judge made reference to Article 1 of the First Protocol to the European Convention on Human Rights, helding that the right to inherit property under a will is a ‘possession’ within the protocol. A claimant was not to be deprived of it except in the public interest. The only way that the Forfeiture Act could be given effect in a way that is compatible with convention rights would be to construe it as conferring a discretion upon the Court to mitigate the harshness of the absolute rule where it is not in the public interest to deprive the wrongdoer of all benefit from the estate.
Alastair Norris QC said: ‘The forfeiture rule is a principle of public policy, the application of which may produce unfair consequences in some cases. It is not the statement of a principle of justice designed to produce a fair result: Dunbar’s case [1998] Ch 412, 422D-E, per Mummery LJ. There is a justifiable dissatisfaction with its indiscriminate application in every case of unlawful killing: per Phillips LJ in Dunbar’s case, at p.431G. Following Dunbar’s case however it is no longer possible to discriminate in the application of the rule, only to mitigate its effects where the ends of justice require. The rule will accordingly be applied even where the public interest does not require it (and even where its application may be contrary to the public interest) but in some circumstances its effects may be mitigated.
and: ‘The Forfeiture Act is concerned with the adjustment of property rights and confers upon an individual a right to apply to the Court within a defined period. It is a form of limitation period similar to that applying to applications for reasonable provision to be made out of the estate or for rectification of a will, but (unlike the statutes which confer those rights) the Act gives the Court no discretion to extend the time for commencement of the action.’

Judges:

HHJ Alastair Norris QC

Citations:

[2006] EWHC 2069 (Ch), [2007] 1 WLR 1009, [2006] WTLR 1447, [2007] 1 All ER 324

Links:

Bailii

Statutes:

Forfeiture Act 1982 2, Inheritance (Provision for Family and Dependants) Act 1975 2, European Convention on Human Rights 1

Jurisdiction:

England and Wales

Citing:

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 by:

Cited – Jenkins, Regina (on The Application of) v HM Coroner for Portsmouth and South and Others Admn 11-Dec-2009
The deceased had contracted gangrene, but not sought treatment, and he died of it. The claimant challenged the narrative verdict saying that it was perverse and that the only proper verdict was unlawful killing by his partner, a nurse who had . .
Cited – Mack v Lockwood and Others ChD 19-Jun-2009
The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Human Rights

Updated: 29 January 2022; Ref: scu.384056

St Clair v King and Another: ChD 12 Jan 2022

Challenge to will – earlier mutual will – undue influence – testamentary capacity – want of knowledge and approval.

Judges:

His Honour Judge Cawson QC

Sitting as a Judge of the High Court

Citations:

[2022] EWHC 40 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 29 January 2022; Ref: scu.671239

Pettigrew and Others v Edwards: ChD 12 Jan 2017

Application for an order that the claimants as trustees of the will of Veronica Ann Edwards deceased (i) have permission to continue to defend a claim brought against in an earlier claim, and to make a counterclaim in that claim, and (ii) be indemnified out of the trust fund in respect of all costs properly incurred by them in connection with the claim and counterclaim. In other words, this is a claim for a Beddoe order (see Re Beddoe [1893] 1 Ch 547) and also for a protective costs order.
Held: Refused. In substantial part the claim was to the personal benefit of the trustees, and neither a Beddoe nor a protective order was necessary.

Judges:

Master Matthews

Citations:

[2017] EWHC 8 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .
Lists of cited by and citing cases may be incomplete.

Costs, Wills and Probate

Updated: 28 January 2022; Ref: scu.573206

Shepherd v Wheeler: ChD 2000

An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in without notice applications in probate actions.

Lawrence Collins QC
[2000] WTLR 1175
Supreme Court Act 1981 116
England and Wales
Citing:
Cited – Re Leguia (No. 2) CA 1936
The court revoked a grant of letters of administration with will annexed which had been granted in favour of judgment creditors on the grounds of their non-disclosure.
Lord Wright MR: ‘But the President or probate judge has discretion either to . .

Cited by:
Cited – Ghafoor and others v Cliff and others ChD 11-Apr-2006
The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 27 January 2022; Ref: scu.241553

James and Another v Allen and others: ChD 30 Jun 1817

The testator left a bequest in trust for such ‘benevolent purposes’ as the trustees might unanimously agree upon.
Held: The word ‘benevolent’ when coupled with another was not sufficient to restrict the trusts to charitable purposes and it failed.

[1817] EWHC Ch J10
Bailii
England and Wales

Wills and Probate, Charity

Updated: 27 January 2022; Ref: scu.241581

Wordingham v Royal Exchange Trust Co Ltd and Another: ChD 6 May 1992

A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical error was due to an error in the process of recording the testator’s instructions, not in the drafting of the will.
Held: The court rectified the will under section 20(1)(a) of the 1982 Act by writing the missing clause into it. Evans-Lombe QC J said: ‘The words ‘clerical error’ used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will.’

Evans-Lombe QC J
Gazette 06-May-1992, [1992] Ch 412, [1992] 3 All ER 204
Administration of Justice Act 1982 20(1)(a)
England and Wales
Citing:
Cited – 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 – Sharp’s Patent, re, ex parte Wordsworth CA 1840
The court considered what counted as a clerical error: ‘And in every case which has occurred, it has plainly been intended to do no more than to amend mere slips or clerical errors made by the parties, or the agents of the parties, who intending to . .
Cited – Regina v Commissioner of Patents, ex parte Martin 1953
(Australia) The applicant sought registration of a patent. In his application, he accidentally described himself as the originator of the idea, whereas in fact he was the assignee.
Held: The court construed the provision of patent law: ‘The . .
Cited – Re Williams Deceased, Wiles v Madgin ChD 1985
A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that . .
Cited – 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 by:
Cited – Clarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
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 – Bimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 January 2022; Ref: scu.90607

X v A and Others: ChD 13 Oct 1999

A trustee under a will where there was a life interest had the ability to assert a lien over the estate in respect of potential liability which might be incurred because of the necessity of complying with any order for the clean-up of land forming part of the estate, even though the part of the Act which might operate was not yet in force.

Gazette 13-Oct-1999
Environmental Protection Act 1990 Part II
England and Wales

Trusts, Wills and Probate, Environment

Updated: 27 January 2022; Ref: scu.90642

Adepoju v Akinola: ChD 7 Dec 2016

The claimant disputed whether the defendant had been lawfully married to the claimat’s deceased mother, and possible marriage having been polygaous, and without the defendant having divorced his first wife.
Held: Master Matthews set out the approach of the courts to matters of evidence and the burden of proof. Pointing out that: ‘the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to’

[2016] EWHC 3160 (Ch)
Bailii
England and Wales

Litigation Practice, Wills and Probate

Updated: 26 January 2022; Ref: scu.571991

Caudle v LD Law Ltd: QBD 29 Feb 2008

The claimant sought to take out letters of administration in the estate, and needed documents held by the defendant who claimed a lien over necessary documents for an unpaid legal services bill. The defendants had replied that until the claimant had taken out letters of administration, he had no standing to require delivery of the papers.
Held: The claimant did not yet have standing to make the demand made.

Wyn Williams J
[2008] EWHC 374 (QB), [2008] 1 WLR 1540, [2008] WTLR 587
Bailii
Non-Contentious Probate Rules 1987
England and Wales

Wills and Probate

Updated: 26 January 2022; Ref: scu.266043

Chard v Chard (otherwise Northcott), Haye, Winstanley, Lord and Norris: FD 1956

If a person has not been heard of for seven years by those who would be likely to hear from them then, if proper inquiries have been made and there is no evidence to the contrary, the person is presumed to be dead. However, the mere fact of a seven year absence is insufficient; it is the fact that the absence remains unaccounted for when one would not reasonably expect it to be if the person were alive that forms the basis of the presumption.

Sachs J
[1955] 3 WLR 954, [1956] P 259, [1955] 3 All ER 721
England and Wales
Cited by:
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 January 2022; Ref: scu.223697

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 son. On her death, the other children argued that the share to be taken by the son should be reducd by the amount of the gift.
Held: Though the gift was made without the son’s knowledged or consent, it had the appearance of being made out of the son’s share and in order to protect the grandchild, and it could be set off against the son’s portion of the residuary estate. Where the intention could be understood to anticipate a share of the portion which the child would have received under the will, that portion was to be adeemed to the extent of the gift. ‘As ademption of a gift by will by way of a later inter vivos gift is a working out of the intention of the donor there would seem . . to be no need for the donee either to know of the prospective gift by will or to be party to or to know of the inter vivos gift.’

Lindsay J
Gazette 21-Apr-1999, Times 02-Apr-1999, Gazette 28-Apr-1999
Enduring Powers of Attorney Act 1985 3(4)
Citing:
Cited – Ex Parte Pye 1811
A person acting in loco parentis is ‘in the situation of the person described as the lawful father of the child’ . .
Cited – 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 . .
Cited – Re C (A Patient) ChD 1991
It may be likely that more than one kind of provision may be described as what the donor of the power of attorney ‘might be expected to provide’. ‘I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, . .
Cited – Watson and Watson 1864
A gift in a will is not to be adeemed by small lifetime gifts – they are not generally ‘portions’ of the inheritance. A gift may be a portion where it is from parent to child: ‘The rule applies not only to parent and child …’ . .
Cited – Pankhurst v Howell 1870
If both a gift by will to a donee and a later gift inter vivos by the testator to the same donee are a ‘pure bounty’, then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will be able to take . .
Cited – In Re Pollock CA 7-Mar-1885
There exists a special consideration sufficient to deny a gift in a will the character of ‘pure bounty’ is where the gift by will has a particular purpose identified in the will itself. The language may show that the gift is intended to meet a . .
Cited – Re Ashton ChD 1897
Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
Cited – In Re Eardley 1920
The court considered whether a gift might adeem a gift in a will by ‘by a father or a person in loco parentis’ but ‘the matter must be regarded from a wider point of view’. The rule against double portions is, in effect, no more than one way of . .
Cited – Re Ware 1926
No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such. . .
Cited – In re Vaux CA 1939
The term ‘portion’ has a ‘qualitative significance’ as well as purely quantitative significance. As to the doctrine of ademption: (Sir Wilfrid Greene MR) ‘The rule against double portions rests upon two hypotheses; first of all, that under the will . .
Cited – In re George’s Will Trusts ChD 1949
If the basic ingredients of a portion are present, then the question of whether or not a gift by will is in fact a portion depends to a large extent upon the donor’s intentions. The testator, by his inter vivos gift of a portion, ‘as it were . .
Cited – In re R (Enduring Powers of Attorney) ChD 1990
The claimant had worked for the deceased for many years. The deceased gave her nephew an enduring power of attorney which was in due course registered. The nephew dismissed the claimant. The claimant said he had worked for many years at a very low . .
Cited – In re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
Cited – Pym v Lockyer 1840
It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: ‘in the case of a parent, a legacy to a child is presumed to be intended to be a portion . .’ The court queried the likelihood of an intention in a grandfather . .
Cited – Kirk v Eddowes 1844
The court discussed cases of ademption in a context where the two gifts were by instruments, to the effect that: ‘… The law raises a presumption that the second instrument was an ademption of the gift by the instrument of earlier date …’ Though . .
Cited – 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 . .
Cited – Chapman v Salt 1709
A gift in a will to a married woman was adeemed by a later gift by the testatrix of a note for the same sum to her husband. It had been objected that the note was to one and the legacy to another but evidence was received that the note was intended . .
Cited – Shudal v Jekyll 1742
Whether ademption takes place is settled by identifying the testator’s intention. Despite the need to rely upon documents, oral evidence has been ‘constantly admitted in all these cases’. . .
Cited – McLure v Evans 1861
The court must look to the testator’s intentions to decide whether there has been an ademption of a gift. . .
Cited – In Re Shields 1912
Warrington J said: ‘By ademption is meant 1 think in this context a transaction to which the donee as well as the donor is a party.’ Since the testator’s intention had not been communicated to the legatee in his lifetime there was no ademption. . .
Cited – Lord Chichester v Coventry HL 1867
Though the doctrines of ademption and of satisfaction of gifts are related, it is more difficult to establish satisfaction. Slight differences between the two gifts might be overlooked, but where there is real difference between the two gifts by way . .
Cited – In re Furness 1901
A legacy may be adeemed as a portion ‘when a parent by will gives a legacy to a child . .’ It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift. . .
Cited – Earl of Durham v Wharton HL 1836
WL, brother of JL, gave property to JL charged with a legacy of andpound;5,000 to JL’s daughter, Susan, then unmarried. JL by his will later gave her andpound;10,000 on trust for life with remainder to her children and provided that the . .
Cited – Re Kershaw’s Trusts 1868
In the particular circumstances a provision made for the benefit of the husband was for the benefit of the wife. . .
Cited – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Cited – Lowther v Bentinck 1874
An exercise can be recognised as being for the benefit of a woman when an advance is made to set up her husband in business. . .
Cited – Cooper v MacDonald 1873
A testator by will gave a share in his residuary estate to his then unmarred daughter and later, under a marriage settlement to which he was party, gave two gifts, namely andpound;1,000 to the prospective husband for his own use and benefit and . .
Cited – Hoskins v Hoskins 1706
The rule against double portions applied so that a larger gift by will would be totally adeemed by a later and smaller inter vivos gift. . .
Cited – Rosewell v Bennet 1744
Where the rule against double portions is held to apply, the effect of the later gift inter vivos, does not cause a revocation of the will, but rather brings about a position in which, to the extent of that later gift, there has been an acceleration . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 January 2022; Ref: scu.82240

In Re Pollock: CA 7 Mar 1885

There exists a special consideration sufficient to deny a gift in a will the character of ‘pure bounty’ is where the gift by will has a particular purpose identified in the will itself. The language may show that the gift is intended to meet a particular moral obligation. In such circumstances an arlier gift may adeem the gift in the will. A gift may be deemed a portion ‘where the donor is a parent or in loco parentis …’ and ‘When a testator gives a legacy to a child, or to any other person towards whom he has taken on himself parental obligations, and afterwards makes a gift or enters into a binding contract in his lifetime in favour of the same legatee, then (unless there be distinctions between the nature and conditions of the two gifts, of a kind not in this case material) there is a presumption prima facie that both gifts were made to fulfil the same natural or moral obligation of providing for the legatee; and consequently that the gift inter vivos is either wholly or in part a substitution for, or an ‘ademption’ of, the legacy.’
Otherwise Pollock v Worrall

Lord Selbome LC
(1885) 28 Ch D 552, [1885] UKLawRpCh 84

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: 24 January 2022; Ref: scu.194471

The Royal Society v Robinson and Others: ChD 17 Nov 2015

Claim to construe a Will or in the alternative to rectify it, or in the further alternative for it to be admitted to probate with certain words omitted.
Held: The court construed a reference to ‘the United Kingdom’ as including the Channel Islands and the Isle of Man despite initially observing that: ‘There is no doubt that the technical meaning of ‘United Kingdom’ would not include Jersey and the Channel Islands or the Isle of Man.’

Nugee J
[2015] EWHC 3442 (Ch)
Bailii
England and Wales
Cited by:
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 23 January 2022; Ref: scu.570007

Brown v Robertson: SCS 29 Jul 1896

The widow of a publican who had carried on business without a lease was appointed executrix, obtained a transfer of the certificate, and carried on the business for her own behoof. In an action at the instance of a trustee for the creditors on the husband’s estate it was decided that the widow was bound to account as executrix for the value of the goodwill as at the date of the husband’s death. Held (per Lord Kyllachy) that in estimating the amount of this liability the test was the amount which a trustee for the creditors of the husband would have obtained for the goodwill – considered as an introduction to the landlord, and to the licensing authority – from a purchaser who was aware that the widow would be a rival applicant for the licence.

[1896] SLR 34 – 570
Bailii
Scotland

Wills and Probate

Updated: 23 January 2022; Ref: scu.612689

Brown v Robertson: SCS 21 May 1896

There is no fiduciary relation between an executor, whether dative or nominate, and the creditors of a deceased person, and the former is not bound to administer the executry estate for behoof of the latter, but must merely account for it as at the date of the deceased’s death. Globe Insurance Co. v. Mackenzie ( 7 Bell’s App. 296), followed.
The widow of a publican having been appointed his executrix-dative, continued his business, and obtained a transfer of the licence in her own name and a renewal of the lease. No steps were taken at that time by the creditors of the deceased to vindicate their rights, and no arrangement was made by them with the executrix as to the terms upon which she was to carry on the business. Eighteen months after the creditors sequestrated the estate of the deceased, and the trustee subsequently raised an action against the executrix, concluding, inter alia, for the profits which she had made in the business, and for the enhanced value of the goodwill. Held that the executrix was bound to account only for the value of the estate, including the goodwill, as at the death of her husband.

[1896] SLR 33 – 570
Bailii
Scotland

Wills and Probate

Updated: 23 January 2022; Ref: scu.612642

Sir John Smith, Knight v Thomas Starling Day And Henry Framlingham Day, Executors Of Sir Haylett Framlingham, Deceased: 1837

An executor, after payment of all the debts of which he had notice, invested certain parts of the residue of the testator’s personal estate remaining in his hands, in the funds in his own name, received the dividends, arid paid them over to the legatees in satisfaction of their legacies given by the will :-Held, that under these circumstances, the executor could not sustain a plea of plene acministravit to an action brought against him, 15 years after the testator’s death, for a specialty debt of the testator, of which he had had no notice. Where A, being seised in fee, leased premises to E for 61 years, and afterwards granted a lease to C of the same premises, to commence at the expiration of the 61 years :–Held, that, by the lease to C, A did not part with his reversion, so as to disentitle him to distrain for rent due from E, under his lease.

[1837] EngR 284, (1837) 2 M and W 684, (1837) 150 ER 931
Commonlii
England and Wales

Wills and Probate, Landlord and Tenant

Updated: 22 January 2022; Ref: scu.313401

Gateway Housing Association v Personal Representatives of Ali and Another: CA 22 Oct 2020

Correct procedure for terminating a periodic tenancy following the death of the tenant and before probate or letters of administration have been granted.

[2020] EWCA Civ 1339
Bailii
Law of Property (Miscellaneous Provisions) Act 1994 18
England and Wales

Housing, Land, Wills and Probate

Updated: 22 January 2022; Ref: scu.655048

Couwenbergh v Valkova: CA 27 May 2004

The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect execution. At a first trial, the claimant failed. After a much later investigation by the police, new evidence challenged the execution in front of witnesses.
Held: As a second request, the claimant had to satisfy the test in Taylor v Lawrence. The new evidence might be credible and should be admitted, but there was a real possibility that a new trial would not be effective. Nevertheless, an appeal would be allowed to go ahead. The parties were reminded of the effect on costs of a refusal to consider mediation.

Lord Justice Waller Lord Justice Ward
[2004] EWCA Civ 676
Bailii
England and Wales
Citing:
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Hip Foong Hong v H Neotia and Co PC 15-Jul-1918
An appellate Court has inherent power to set aside a judgment obtained through fraud. Lord Buckmaster described how an appellate court should deal with an allegation that an earlier judgment had been obtained by fraud: ‘Where a new trial is sought . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – Flower v Lloyd CA 11-Jun-1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Sohal v Sohal CA 30-Jul-2002
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no . .
Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited by:
See Also – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
See Also – Couwenbergh v Valkova ChD 16-Oct-2008
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 21 January 2022; Ref: scu.197941

Barnsley and Others v Noble: CA 2 Aug 2016

The court was asked as to the proper interpretation of an exoneration clause contained in a will to relieve the trustees under trusts set out in the will of personal liability in respect of certain breaches of duty by them.

Sir Terence Etherton Ch, Patten, Sales LJJ
[2016] EWCA Civ 799
Bailii
England and Wales
Citing:
See Also – Barnsley and Others v Noble CA 30-Jun-2015
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 20 January 2022; Ref: scu.567880

In re Cameron deceased: ChD 1999

The court was asked whether a gift was a ‘portion’ made in order to establish a child in life or make substantial provision for him.
Held: The presumption against double portions arises because it is assumed that a parent only intends to fulfil his or her moral obligation to give a portion to each of his or her children on a single occasion.
There remains no presumption against a mother’s provision for a child as an advancement against an interest in the will, and both parents should nowadays be taken to be in loco parentis unless the contrary is proved. A ‘portion’ for this purpose is loosely defined as ‘a gift intended to set up a child in life or to make substantial provision for him or her’. A gift may still be regarded as a ‘portion’ for the purposes of the presumption when it is part of the residue of an estate even though by the time of the testator’s death the child in question does not need the money to establish him or herself in life.
Thus where a parent leaves a substantial share of his estate in his will to his children and then gives a large inter vivos gift to one of those children, and where both those gifts have the character of a portion, it is assumed, subject to evidence establishing the contrary, that the gift is supposed to be a substitute for the bequest. Where the presumption prevails, the doctrine of ademption applies on the distribution of the estate so that the inter vivos gift is treated as counting towards the donee’s legacy or share of the estate.

Lindsay J
[1999] Ch 386, [1999] 2 All ER 924
England and Wales
Cited by:
Applied – Kloosman v Aylen and Others ChD 8-Mar-2013
The deceased had before his death sold his principle property and made substantial gifts to beneficiaries under his existing will. The parties disputed whether the gifts should be brought into the estate to set off against the gifts made in the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 January 2022; Ref: scu.471870

In re Hagger; Freeman v Arscott: ChD 1930

The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife died first, and the husband received the income for his lifetime from her estate as under the will.
Held: The property of the wife held by the surviving husband under her will and to be disposed of by his own will was subject to a trust in that behalf under which the legatees in absolute remainder took the vested interests subject to the husband’s life interest. Therefore the death of a legatee before the husband’s death did not mean that that interest lapsed. His interest had already vested. A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.
Clauson J set out the principles underlying the law’s acceptance of mutual wills: ‘To my mind Dufour v. Pereira decides that where there is a joint will such as this, on the death of the first testator the position as regards that part of the property which belongs to the survivor is that the survivor will be treated in this Court as holding the property on trust to apply it so as to carry out the effect of the joint will. As I read Lord Camden’s judgment in Dufour v. Pereira that would be so, even though the survivor did not signify his election to give effect to the will by taking benefits under it. But in any case it is clear that Lord Camden has decided that if the survivor takes a benefit conferred on him by the joint will he will be treated as a trustee in this Court, and he will not be allowed to do anything inconsistent with the provisions of the joint will.’

Clauson J
[1930] 2 Ch 190, [1930] 99 LJ Ch 492, [1930] 143 LT 610
England and Wales
Citing:
Explained – 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 – 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 – 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, Family

Updated: 20 January 2022; Ref: scu.183796

Nestle v National Westminster Bank: CA 6 May 1992

The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though there was not much for the bank to be proud of in its administration of the trusts.

Dillon, Staughton, Leggatt LJJ
[1992] EWCA Civ 12, [1993] 1 WLR 1260, [1994] 1 All ER 118
Bailii
Aministration of Justice Act 1985 50
England and Wales
Citing:
Cited – In re Sharp 1845
(Year?) Cotton LJ discussed a power to invest ‘upon the debentures or securities of any railway or other public company’ and said:- ‘It is true that he refers to railway companies, but he also adds, ‘or any other public company’; and I think it . .
Cited – Robinson v Robinson CA 1851
The trustee defendants had been directed by their testator to realise his investments and invest the proceeds in one or other of two forms of investment; but the trustees had delayed the realisation of the testator’s investments. When they actually . .
Cited – Speight v Gaunt HL 26-Nov-1883
A trustee is required to use the same degree of prudence and diligence as a person of ordinary prudence would have done if he had been conducting his own affairs. . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – In re Whiteley 1886
Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: ‘The principle applicable to cases of this description was stated . . to be that a trustee ought to conduct the business of the trust in the same manner . .
Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Financial Services, Negligence

Updated: 19 January 2022; Ref: scu.262624

Re D: CoP 1 Jul 2016

Appeal against an order allowing an applicant for an order authorising her to execute a statutory will to be released from the obligation to serve the papers on someone who is currently entitled to a half share of the estate on intestacy and will be disinherited if the proposed statutory will is executed.

Lush SJ
[2016] EWCOP 35
Bailii

Wills and Probate

Updated: 18 January 2022; Ref: scu.566561

Pengelly v Pengelly: ChD 2008

Where a word or words have been mistakenly omitted from a will there may well be greater potential for characterising the error as one of a clerical nature. This reflects a natural, almost intuitive, reaction that it is easier to find a clerical error where something has simply been left out.

Hodge QC HHJ
[2008] Ch 375
Administration of Justice Act 1982 20(1)(a)
England and Wales
Cited by:
Cited – Bimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 15 January 2022; Ref: scu.552764

Cowderoy v Cranfield: ChD 24 Jun 2011

The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation’

Morgan J
[2011] EWHC 1616 (Ch)
Bailii
England and Wales
Cited by:
Principal judgment – Cowderoy v Cranfield ChD 13-Oct-2011
. .
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 15 January 2022; Ref: scu.441216

Gandhi v Patel and others: ChD 31 Jul 2001

Park J
[2001] EWHC Ch 473, [2002] 1 FLR 603
Bailii
England and Wales
Cited by:
Cited – Hudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .

Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 15 January 2022; Ref: scu.263739

Bray and Others v Peterkin (Bruce’s Trustee) and Others: SCS 19 Jul 1906

(Court of session Inner House Second Division) Section 27 of the English Wills Act 1837, which provides that ‘a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have a power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will,’ held to be a correct expression of the law of Scotland. Lord Brougham’s dictum as to the law of Scotland in Cameron v. Mackie, August 29, 1833, 7 W. and S. p. 106, at p. 141, on which the above section is founded, approved.
Opinion per Lord Low that the presumption in favour of the exercise of the power can be rebutted only by evidence of intention amounting practically to a declaration that the power is not exercised.
A testator conveyed his whole means and estate, heritable and moveable (except the estate of X to be settled in the fourteenth place), to trustees for various purposes, including fourth, division of furniture among A, B, C, grandnieces of wife failing exercise by wife of power of appointment conferred on her; eighth, liferent of whole income to wife; twelfth, on death of wife if she survived him, payment of residue of moveable estate as appointed by her, or, failing appointment, equally among grandnieces A, B, C; fourteenth, as regarded estate of X, on death of wife sale of estate and payment of proceeds as she might appoint, or, failing appointment, division among certain relatives of wife from whom A, B, C, otherwise provided for, were excluded. By her will the wife, after expressly exercising the power of appointment as to furniture, provided, ‘as regards the remainder of my means and estate I provide’ that the residue be divided between her grandnieces A and B (C had died) in the proportion of two-thirds to A and one-third to B. By subsequent codicil she expressly exercised the power of appointment over the residue of her husband’s moveable estate in favour of A and B.
Held (dub. Lord Stormonth Darling) that the power of appointment conferred on the wife by purpose fourteen as regarded the proceeds of the sale of X, had been validly exercised by her will in favour of A and B.

Lord Dundas, Ordinary
[1906] SLR 43 – 746
Bailii
Scotland

Wills and Probate

Updated: 13 January 2022; Ref: scu.610383

Wood and Another v Smith and Another: CA 6 May 1992

A home made will signed only at the top of the page but where there was a clear indication of testamentary intention is a valid will.

Gazette 06-May-1992
Wills Act 1937
England and Wales
Cited by:
Cited – Weatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 January 2022; Ref: scu.90582

Slattery and Others v Jagger and Others: ChD 10 Nov 2015

The court read the words ‘to my wife’ into a specific devise of a property from which they had accidentally been omitted by a process of construction.

Hodge QC HHJ
[2015] EWHC 3976 (Ch)
Bailii
England and Wales
Cited by:
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 January 2022; Ref: scu.561579

Gartside v Sheffield Young and Ellis: 1983

(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills.’

Cooke J
[1983] NZLR 37
England and Wales
Citing:
Applied – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Cited by:
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Distinguished – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Commonwealth, Wills and Probate

Updated: 12 January 2022; Ref: scu.195673

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 ostensibly have been properly executed according to the facts known to them. In this case such a duty was assumed additionally by the solicitor checking it. The solicitor was liable.

Mann, The Honourable Mr Justice Mann
[2004] EWHC 151 (Ch), Times 27-Feb-2004, Gazette 04-Mar-2004
Bailii
England and Wales
Citing:
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Cited – Hemmens v Wilson Browne (A Firm) ChD 30-Jun-1993
A solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the . .
Cited – 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 . .
Cited – Carr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
Cited – Gray v Richards Butler (A Firm) ChD 24-Jun-1996
Solicitors were not entitled to payment of their costs in the administration of the estate after the will had been challenged. . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence

Updated: 12 January 2022; Ref: scu.193396

Ross v Caunters (a firm): ChD 1979

The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party for whom he is acting but generally owes no duty to the opposite party.
Sir Robert Megarry VC held: ‘It also seems to me that there is ample authority for saying that a successful plaintiff cannot obtain, in the guise of damages, any costs which, on a party and party taxation of costs, are disallowed by the taxing master. It is not enough for the plaintiff to claim that such costs were incurred by him as a result of the defendants’ negligence. I think that this is sufficiently established by Cockburn v Edwards (1881) 18 Ch. D. 449. I am saying nothing about damages which fall outside the particular form in which they are claimed in this case, namely, the legal expenses of investigating the plaintiff’s claim up to the date of the issue of the writ. It seems to me that both on authority and on principle those legal expenses can be recovered by the plaintiff only as costs, and not in the form of damages. In so far as the plaintiff can persuade the taxing master that the items incurred should be allowed as costs on a party and party taxation, then the plaintiff can recover them; but so far as they are not allowed by the taxing master, then I think that they cannot be recovered in the shape of damages.
Accordingly, on the inquiry as to damages which counsel agree should be ordered, no head of damage for the legal expenses of investigating the plaintiff’s claim up to the date of the issue of the writ will be allowable as damages’.

Sir Robert Megarry V-C
[1980] Ch 297, 123 Sol Jo 605, [1979] 3 All ER 580, [1979] 3 WLR 605
England and Wales
Citing:
Cited – Cockburn v Edwards CA 2-Aug-1881
A solicitor advanced money to his client on a second mortgage, in which was inserted a power of sale exerciseable at any time without the usual proviso requiring that notice should be given, or some interest should be three months in arrear; and it . .

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 . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Worby, Worby and Worby v Rosser CA 28-May-1999
Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
Applied – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
Approved – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Distinguished – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Damages

Updated: 12 January 2022; Ref: scu.185876

Walker v Geo H Medlicott and Son (a Firm): CA 19 Nov 1998

The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will should first establish whether rectification of the will was available, and only after failure then seek to claim under professional negligence. The solicitors had failed to carry out the testator’s express instructions, and a claim by a disappointed beneficiary might stand. However the claimant here also could seek rectification of the will. The recovery of damages against a negligent solicitor had the effect of enabling the beneficiaries under the Will to retain ‘adventitious benefits’, and accordingly fairness required that the beneficiaries share the cost of putting things right by means of rectification proceedings.

Simon Brown LJ, Mummery LJ, Sir Christopher Slade
Times 25-Nov-1998, [1998] EWCA Civ 1806, [1999] 1 All ER, [1999] 1 WLR 727, [1999] PNLR 531
Bailii
Administration of Justice Act 1970 20
England and Wales
Citing:
Distinguished – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Distinguished – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Distinguished – Carr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
Cited – 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 – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Cited – Mersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
Cited – Pilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
Cited – Wintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .

Cited by:
Cited – Powell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Damages, Costs

Updated: 12 January 2022; Ref: scu.90250

Mrs Pringle and Robert Andrews and Mark Pringle v John Pringle of Crichton: HL 29 Jan 1767

Deathbed – Faculty to Burden – Testament.- A party disponed his whole estate to his heir-at-law, under a reserved power or faculty to burden at any time during his life, with provisions to younger children. By a codicil bearing no date, but executed ten months before his death, he altered this disposition so as to diminish the fund for the heir; and granted also an heritable bond of provision for andpound;1000, in terms of his reserved power to burden, nine days before his death: Held that these deeds were reducible on the head of deathbed; but reversed in the House of Lords.

[1767] UKHL 2 – Paton – 130
Bailii
Scotland

Wills and Probate

Updated: 11 January 2022; Ref: scu.560698

Charles Cajetan Count Leslie, Leopoldus Count Leslie, Eldest Son, Anthony Leslie, Second Son, and Charles Count Leslie, Third Son, of The Said Count Charles Cajetan Leslie v Peter Leslie Grant, and His Curator, Ad Litem: HL 2 Feb 1763

Alien – Proof.-
A person, a natural born subject of England, had issue born abroad before the 7 Anne (Naturalization act), out of the ligeance of the King. This son had issue, Count Anthony Leslie, also born out of the ligeance of the King; Question of law submitted to the whole judges of England: Whether Anthony was capable of inheriting land estates in Scotland? Held unanimously, on full consideration of the statutes, that Anthony Count Leslie, was to be deemed an alien, and not capable to inherit such estate-That the statutes extended only to the children of a natural born subject of the first degree, and not to the grandchildren, and Anthony’s father not being a natural born subject of England, but an alien born abroad, before the passing of the 7 Anne, he could take no benefit.-Proof rejected in consequence of diet not being regularly intimated in terms of commission issued.

(1763) 2 Paton 68, [1763] UKHL 2 – Paton – 68
Bailii
Scotland

Administrative, Wills and Probate

Updated: 11 January 2022; Ref: scu.560592

Winkler and Another v Shamoon and Others: ChD 15 Feb 2016

The claimants sought a declaration as against the residuary beneficiaries (wife and daughter) under the will, saying that the claimants had a beneficial interest in company shares within the estate. The defendants fild acknowledgments of service but asserting expressly that they did not submit to the jurisdiction of the court. The claimants said that the acknowledgment was enough to provide jurisdiction.
Held: The declaration was granted. Acknowledgment in the form used was not to be taken as the defendant having entered. It would undermine the purpose of the of Regulation to read national procedural rules so as to compel a defendant to enter an appearance. Whether a defendant had in fact entered an appearance depended on whether there had in fact been a submission to the jurisdiction according to the local law. Also the claim was outside Regulation (EC) 44/2001 because its main subject matter was ‘succession’ within article 1(2)(a) of the Regulation.

Henry Carr J
[2016] EWHC 217 (Ch), [2016] WLR(D) 101
Bailii, WLRD
Civil Procedure Rules 11(2), Regulation (EC) 44/2001 1(2)(a) 24
England and Wales
Citing:
Cited – Elefanten Schuh Gmbh v Pierre Jacqmain ECJ 24-Jun-1981
ECJ 1. Article 18 of the convention of 27 September 1968 on Jurisdiction and the enforcement of judgments in civil and commercial matters applies even where the parties have by agreement designated a court which . .
Cited – Harada Limited (T/A Chequepoint) v Turner CA 2-Dec-2003
Applications for leave to appeal. The claimant had alleged unfair dismissal. The respondent denied jurisdiction. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Wills and Probate, European

Updated: 10 January 2022; Ref: scu.560278

Pendock Barry Barry, Esq v James Butlin, Esq: PC 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 tlie second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence
has been given on the assignation.

[1836] UKPC 9
Bailii, Commonlii

Wills and Probate

Updated: 09 January 2022; Ref: scu.557901

Houston and Others (Turnbull’s Trustees) v Lord Advocate: HL 29 Jan 1918

A testatrix by her trust-disposition and settlement directed her trustees to apply the residue of her estate to ‘such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood as they in their discretion shall think proper.’
Held that the bequest could not be read as being to benevolent or charitable purposes of a public character, but must be read as being to three classes of purposes, one of which was ‘public purposes’; and that so read the bequest was void from uncertainty, the addition of a locality not diminishing the vagueness of the purpose.
Authorities referred to.
In construing a will the punctuation of the original deed may be taken into account.
In a multiplepoinding brought by testamentary trustees the Court of Session held that the residuary bequest in the trust-disposition was void from uncertainty, found the Crown as ultimus haeres entitled to the residue, and allowed the trustees expenses out of the trust funds. The trustees having appealed to the House of Lords, their Lordships when dismissing the appeal refused the trustees their expenses in the appeal out of the trust funds, but of consent did not find expenses due by them.

Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1918] UKHL 208, 55 SLR 208
Bailii
Scotland

Wills and Probate

Updated: 08 January 2022; Ref: scu.631465

Jones v Longley and Others: ChD 20 Nov 2015

The court had made an order removing one executor, though with no criticism. It now considered its order for costs, all parties seeking costs in their favour.
Held: The two personal representatives could not be expected to continue to work together, and at least one must go. Master Matthews said: ‘there are not two sets of rules, one for lawyers and one for laymen. If you embark on litigation without a lawyer, you cannot expect to be judged by rules different from those which apply to litigants legally represented.’

Master Matthews
[2015] EWHC 3362 (Ch)
Bailii
Senior Courts Act 1981 51, Civil Procedure Rules 44.2(1)
England and Wales

Wills and Probate, Costs

Updated: 08 January 2022; Ref: scu.556755

A v B: SCS 10 Jul 1534

Ane bastard deceissand, and leivand behind him bairnis Iauchfullie gottin of his bodie, beand of les age and pupillis, without ony tutor testamentar, left be thair father to thame, in his testament or latter will, the King may give to thame ane tutor, because thay cannot have ony agnat or kinnisman of the fatheris side.

[1534] Mor 16219
Bailii

Scotland, Wills and Probate, Family

Updated: 08 January 2022; Ref: scu.556666

Mattingley v Bugeja: ChD 14 Dec 2021

Case about an alleged ‘secret trust’ of real property, situated in England, under a will. The question is whether the devisee under the will, the defendant, holds the deceased’s interest in the property on trust so as to give the claimant, the deceased’s daughter, a 37.5% interest in the property (or, more accurately, in the deceased’s 71% beneficial interest in it). The daughter asserts this case. The defendant, her aunt, denies it.

HH Judge Davis-White QC,
(Sitting as a Judge of the High Court)
[2021] EWHC 3353 (Ch)
Bailii
England and Wales

Trusts, Wills and Probate

Updated: 08 January 2022; Ref: scu.670673

Henderson v Wilcox and Others: ChD 3 Dec 2015

The claimant had been convicted of the manslaughter of his mother, and sentenced to be detained for treatment in a mental health hospital. It was thought unlikely he would ever be fit to be released. He would otherwise have inherited under her will. He now sought disapplication of the rule under the 1982 Act.
Held: As to interests under discretionary trusts executed by te deceased in her lifetime, the forfeiture rule did not apply.

David Cooke HHJ
[2015] EWHC 3469 (Ch)
Bailii
Mental Health Act 1983 37, Forfeiture Act 1982 2 3, Forfeiture Act 1986 1(1)
England and Wales

Wills and Probate

Updated: 07 January 2022; Ref: scu.556455