The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred substantial estate assets abroad. The defendant said that the burden of proving that the will was a fraud was higher than the balance of probabilities.
Held: Earlier authorities on the applicable standard of proof needed to be read in the light of more recent authority (particularly in re Doherty). Accordingly ‘the civil burden of proof applies to this case, and the seriousness of the allegations made against Mr Doveton and the consequences of a possible finding against him do not alter that. They affect my task in a different way, namely that they are extremely important factors which I must take fully into account in deciding, on the balance of probabilities, whether the Treasury Solicitor has made out its case.’
The executor’s case faced many real difficulties, and the court concluded that the will could not stand. The court made orders under the 1986 Act to set aside the transactions found by the judge to have been made in an attempt to avoid creditors.

Sir Mark Herbert QC
[2008] EWHC 2812 (Ch), [2009] BPIR 352
Bailii
Insolvency Act 1986 423(1)
England and Wales
Citing:
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
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 – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 November 2021; Ref: scu.377224

[1805] EngR 245, (1805) 2 Bos and Pul 38, (1805) 127 ER 538
Commonlii
England and Wales

Wills and Probate

Updated: 11 November 2021; Ref: scu.343318

[1830] EngR 275, (1830) 3 Hag Ecc 212, (1830) 162 ER 1134
Commonlii
England and Wales

Wills and Probate

Updated: 11 November 2021; Ref: scu.321155

Royal Will: Seal to be broken for copyright query

Application by the Royal Archives for a copy of the will of the Duke of Windsor (who died in 1972) which was sealed. It was need to ascertain the ownership of the copyright in various works of the Duke’s estate.
Held: The seal was to be broken, one copy provided to the librarian of the Queen’s Archives to allow the necessary enquiry, and the will resealed.

Sir James Munby P
[2017] EWHC 2887 (Fam)
Bailii
England and Wales

Wills and Probate

Updated: 10 November 2021; Ref: scu.599579

HHJ David Cooke
[2021] EWHC 2598 (Ch)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales

Wills and Probate

Updated: 09 November 2021; Ref: scu.668323

Publication and Admission of Will

The will of the late HRH the Prince Phillip was admitted to Probate, but a copy was sealed and not to be published, nor the value of the estate. The court took the opportunity to set out the basis for this practice

[2021] EWHC 77 (Fam)
Bailii, Judiciary
England and Wales

Wills and Probate

Updated: 09 November 2021; Ref: scu.668230

Capacity to execute Will once instructions given

A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused to execute the will. The doctor said ‘This is your will. Do you wish this lady to sign it?’
Held: Sir James Hannen, President directed the jury: ‘The law applicable in this case is this. If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property: I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’ Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at the time know and recollect all that she had done with Mr Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think she was in a condition, if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-so so much,’ or do you wish to this (as the case might be), she would have been able to answer intelligently ‘Yes’ to each question? That would be another condition of mind. It would not be so strong as trhe first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from beginning to end, and think it all over again, but is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;’ it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed, you accept the view of those who were present at the time, and who have given their evidence, who say that in their judgment she was conscious.’ and ‘If Mr Ponsford [the solicitor] only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.’
Held: What is required at the date of execution is that the testator understands that he is executing a will for which he has previously given instructions. The court pronounced in favour of the will.

Sir James Hannen, President
(1883) 8 PD 171, [1883] UKLawRpPro 41
Commonlii
England and Wales
Cited by:
Applied – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Applied – Thomas v Jones 6-Mar-1928
. .
Cited – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another 1952
The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was . .
Cited – Carr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
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 . .
Approved – Pereira v Pereira; Perera v Perera PC 23-Mar-1901
The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is . .
Approved – Battan Singh v Amirchand PC 1948
(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand . .
Applied – Re Flynn ChD 1982
The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge . .
Applied – Re Flynn Deceased ChD 1982
An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack . .
Cited – Ram and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 09 November 2021; Ref: scu.186107

The will on its face was validly executed but evidence had established that one witness had not been present. The judge had found the evidence to be sufficient to rebut the strong presumption that the will had been validly executed. Permission to appeal was now sought.
Held: Permission to appeal had been correctly refused, there being no point of law raised. The appeal requested the court, without the benefit of seeing the witnesses of fact, to reach a different conclusion from that of the judge who had.

Mummery LJ, Morgan J
[2012] EWCA Civ 1635
Bailii
England and Wales
Citing:
Appeal from – 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

Leading Case

Updated: 02 November 2021; Ref: scu.466961

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 not intended to sign the document he had in fact signed. The 1982 Act allowed rectification only in the case of clerical error. Though the section should be interpreted generously, it was not capable of use to rectify such a mistake by amending the words of the will. The claim for rectification failed and the documentcould not be admitted to probate.

Proudman J
[2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477
Bailii
Administration of Justice Act 1982 20, Wills Act 1837
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 – Re Price ChD 2006
. .
Cited – In the Goods of Hunt 1875
Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would . .
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 – Re Meyer 1908
Two sisters made mirror codicils to their wills but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her . .
per incuriam – Re Vautier 2000
(Royal Court of Jersey) The court considered a request for the rectification of a will: ‘To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power . .
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 – Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others 1946
(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: ‘but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the . .
Cited – 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 . .
Cited – Re Brander 1952
(British Columbia Supreme Court) . .
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:
Appeal from – Marley v Rawlings and Another CA 2-Feb-2012
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
At First Instance – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
At ChD – Marley v Rawlings and Another (2) SC 18-Sep-2014
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 November 2021; Ref: scu.428428

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 was properly made was on the balance of probabilities, not on any higher standard. The wording was out of character for the maker of the will, but the chances that he had read properly only part of the will was low. Part of a will may be rejected for probate, but the circumstances in which that was proper are rare. The question was whether the contents truly represented the testator’s intentions. Where a person who wrote a will took a benefit, the court’s suspicion should be excited, but that could be displaced by evidence on the balance of probability. Proof of knowledge and approval of the execution of a will is by reference to the ordinary civil standard of balance of probability.
Chadwick LJ said: ‘The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator’s testamentary intentions.’
. . and ‘It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testator’s testamentary intentions; or, to use the traditional phrase, that the testator ‘knew and approved’ its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out’.

Lord Justice Peter Gibson, Lord Justice Chadwick, And, Lord Justice Longmore
[2002] WTLR 199, Times 22-Jan-2002, Gazette 14-Feb-2002, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087
Bailii
England and Wales
Citing:
Cited – Fulton v Andrew HL 1875
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 . .
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Appeal from – 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 . .
See Also – Fuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Leave application – Fuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
Cited – Hart v Dabbs ChD 6-Jul-2000
An executor under the will was a legatee and the sole residuary legatee. He was involved in the preparation of the will and organised the process of its execution. There was no professional assistance or involvement of any kind in the will-making . .

Cited by:
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
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, . .
See also – Fuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Full Appeal – Fuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
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 – Parker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
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 – 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 . .
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

Leading Case

Updated: 02 November 2021; Ref: scu.166982

Test for Reasonable Provision for Widow

Buckley J said: ‘it is not for me to try to effect the sort of testamentary dispositions which I think that a testator should have made or would have made had his mind not been affected, as I think it was, by his matrimonial disputes with his first wife. It is not for me to say what he ought to have done if he had been generously disposed towards the plaintiff. I have to consider what it is reasonable in the circumstances of this case to order that she should receive, having first of all satisfied myself that the testator had failed to make reasonable provision for her. He has in fact made no provision for her, and for the reasons that I have indicated I think that he was under a moral obligation to make some provision for her. I am, therefore, satisfied that he has failed to make a reasonable provision for her.’

Buckley J
[1966] 1 WLR 1226, [1966] 2 All ER 374
England and Wales
Cited by:
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.431724

The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: The question was whether the court was able to rely on the witness’ memory: ‘The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.’ After referring to Croft -v- Croft Lord Penzance said: ‘Here we have only the evidence of one witness, and we find the signature of the other attached to a full attestation clause. Taking all the circumstances into consideration, I come to the conclusion that the will was well executed, and that I ought not to rely upon a recollection of the witness, seeing that, if he did not himself, in the first instance, affirm the execution of the will, he stood by and assented to his fellow witness making such affirmation.’

Lord Penzance
(1869) LR 1 PD 678
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 . .
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. . .
Cited – Wilson v Lassman ChD 7-Mar-2017
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.223797

[1835] EngR 937, (1835) 4 Ad and E 76, (1835) 111 ER 716
Commonlii
England and Wales

Wills and Probate

Updated: 02 November 2021; Ref: scu.316445

The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, but not expressly mutual. They had each however talked of ‘the Will’ and certain provisions woild make sense only if they were mutual.
Held: Whilst the court must approach the evidence in such cases with caution, ‘there was an agreement between the sisters at the time they made their 1991 wills that each would leave her estate to the other and that the survivor would leave what remained of their conjoined estates to the beneficiaries and in the shares stipulated in clause 5 of the wills. They made mutual promises to each other and it was either an explicit or implicit part of those promises that the will of the survivor would not be altered so as to change those gifts. The way in which the shares of the beneficiaries were calculated and divided equally between the friends and relatives of the respective sisters indicates this (though it is not enough on its own). It is clear that each sister was conscious that the assets of the survivor would derive in part from the family of the first to die, in particular the estate of her deceased husband, and ought, in fairness, to be shared equally with that sister’s family.’
Gaunt J said: ‘I take the law on mutual wills to be as follows:
(i) Mutual wills are wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such wills and not revoke them without the consent of the other.
(ii) For the doctrine to apply there has to be what amounts to a contract between the two testators that both wills will be irrevocable and remain unaltered. A common intention, expectation or desire is not enough.
(iii) The mere execution of mirror or reciprocal wills does not imply any agreement either as to revocation or non-revocation.
(iv) For the doctrine to apply it is not necessary that the second testator should have obtained a personal financial benefit under the will of the first testator (albeit that in the present case Ethel had, of course, done so).
(v) It is perfectly possible for there to have been an agreement preventing revocability as to part of the residuary estate only, in which case the doctrine only applies to that part.
(vi) The agreement may be incorporated in the will or proved by extraneous evidence. It may be oral or in writing.
(vii) The agreement must be established by clear and satisfactory evidence on the balance of probabilities.
(viii) The agreement is enforced in equity by the imposition of a constructive trust on the property which is the subject matter of the agreement. The beneficiaries under the will that was not to be revoked may apply to the Court for an order that the estate is held on trust to give effect to the provisions of the old will.
(ix) The action relates only to the disposative part of the will. The new will is fully effective to deal with non-disposative matters, such as the appointment of Executors. Accordingly where the doctrine applies the Executors appointed under the final will hold the assets of the estate on trust to give effect to the earlier will.’

Jonathan Gaunt QC DHCJ
[2010] EWHC 2154 (Ch), [2010] WTLR 1489, 13 ITELR 455
Bailii
England and Wales
Citing:
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
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 – 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 – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .

Cited by:
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 November 2021; Ref: scu.423812

The claimant disputed her mother’s will which left everything to her brother, challenging its execution. She said that the second witness had not been present when the will was signed.
Held: The will stood. Where a will appeared to be properly executed, the strongest evidence was required to counter the presumption in law of due execution. No sufficient evidence had been brought here.

Vos J
[2010] EWHC 1607 (Ch)
Bailii
Wills Act 1837 9(c)
England and Wales
Citing:
Applied – 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 by:
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: 01 November 2021; Ref: scu.420223

The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant’s maintenance has not been made.’ and as to applications by adult children: ‘I ought not to approach this application with any pre-conceived notion that there is some especially heavy burden on a male applicant of full age beyond that which must, as a practical matter, necessarily exist when a person who applies to be maintained by somebody else is already capable of adequately maintaining himself.’ and
and ‘It is not the purpose of the Act to provide legacies or awards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position. . . It cannot be enough to say ‘here is a son of the deceased: he is in necessitous circumstances: there is property of the deceased which could be made available to assist him but which is not available if the deceased’s dispositions stand; therefore those dispositions do not make reasonable provision for the applicant’ There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made.’
The court considered what was meant by ‘maintenance’: ‘There have been a number of cases under the Inheritance (Family Provision) Act 1938 previously in force, and also some cases from sister jurisdictions, which have dealt with the meaning of ‘maintenance.’ In particular, in this country there is In re E., decd. [1966] 1 W.L.R 709 in which Stamp J. said that the purpose was not to keep a person above the breadline but to provide reasonable maintenance in all the circumstances. If I may say so with respect, ‘breadline’ there would be more accurately described as ‘subsistence level.’ Then there was Millward v. Shenton [1972] 1 W.L.R. 711 in this court. I think I need only refer to one of the overseas reports, In re Duranceau [1952] 3 D.L.R. 714, 720, where, in somewhat poetic language, the court said that the question is: ‘Is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?’
What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.’

Oliver J
[1979] 2 All ER 408, [1981] Ch 461
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Disapproved – Re Christie (deceased) 1979
In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
Mr Vivian Price QC said: ‘ ‘although reasonable financial provision means provision for the . .

Cited by:
Appeal from (Affirmed) – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
Explained – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
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 – Re Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
Cited – Phizackerley v Revenue and Customs SCIT 14-Feb-2007
The deceased husband had been the sole wage earner. On retirement he bought a house which was placed in his and his wife’s name. They then severed the joint tenancy and created wills trusts each leaving their share in trust for the survivor. After . .
Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
Cited – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Cited – In re Dennis (Deceased) 1981
The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.197022

The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson). Certainly in this case, the persons primarily entitled to such a grant did not secure delivery of the body and had to apply for a grant. Technically, therefore, this case is about who should be granted letters of administration of the estate for this particular purpose.’
‘I accept entirely that the courts should be slow to entertain proceedings such as these. Modern methods of refrigeration may make them possible but they are certainly unseemly. They delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves.’

Hale J
[1999] 2 FLR 844, [1999] EWHC B9 (Fam), [1999] 53 BMLR 176, [1999] Fam Law 692
Bailii
England and Wales
Citing:
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .

Cited by:
Cited – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.562616

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 LJ said that where the will had a full and valid attestation clause and represented the deceased’s wishes, there has to be cogent and clear evidence, ie testimony which constitutes ‘the strongest evidence’, before one can justify the conclusion that the judge reached, this was not a case where the judge simply had to carry out the normal exercise of deciding whether certain witnesses were to be believed or not. It was a case where he had to decide whether, in light of the evidence taken as a whole, he could reasonably conclude that there was ‘the strongest evidence’, that the Will has not been legally executed. The judge had been wrong to reject the evidence of the beneficiary as of no assistance. The execution witnesses accepted that it was their handwriting on the will. Professor Channon intended to make a Will in the very terms in which he executed the Will.
What constitutes the ‘strongest evidence’ in any particular case will depend on totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. ‘

Arden LJ, Neuberger LJ, Mummery LJ
[2006] WTLR 425, [2005] EWCA Civ 1808
Bailii
England and Wales
Citing:
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 – Wright v Sanderson 1884
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 . .
Cited – Wright v Rogers 1869
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .

Cited by:
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 . .
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. . .
Cited – Wilson v Lassman ChD 7-Mar-2017
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.239227

Testing for Mutual Wills

The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The claim was established. ‘in my judgment this evidence would establish two agreements between Mr and Mrs Clark. The first iss an agreement at some time before the execution of the will, and the second is one just afterwards. Each was to the effect that the wills they were to make, or had just made, were irrevocable. Their daughters were to benefit from the gift of the house.’
Paul Matthews HHJ said: ‘In order to succeed in a claim that a will falls within the equitable doctrine of mutual wills, and is accordingly binding on the estate of the testator despite a subsequent change in that will, the claimant must prove, on the balance of probabilities, that the testator made a legally binding agreement with the other testator that both would make their wills in a particular form (not necessarily the same) and that they would not revoke them or (depending on the terms of the agreement) change them without notice to the other or others sufficient to enable that other or others to change their own wills as well, that they made their wills in that particular form and that they did not revoke them (or change them without such notice), and the first of the testators to die did so, not having revoked (or changed) his or her own will.’

Paul Matthews HHJ
[2017] EWHC 2088 (Ch)
Bailii
England and Wales
Citing:
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
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 – Lewis v Cotton 18-Dec-2000
(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked . .
Cited – Lord Walpole v Lord Orford 1789
The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Bosch v Perpetual Trustee Co 22-Feb-1938
(New South Wales) If a Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, by leaving the child in straitened financial circumstances, the Court must ensure that . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Fea v Roberts 2006
Expenditure on matters such as home improvements ‘could not be regarded as a dissipation or true ‘change of position”. . .
Cited – Gestmin SGPS Sa v Credit Suisse (UK) Ltd and Another ComC 15-Nov-2013
The claimant sought damages alleging negligence by the defendants in advice given on an investment in an initial public offering of shares.
Leggatt J considered the reliability of the memories of witnesses: ‘An obvious difficulty which affects . .
Cited – Blue v Ashley (Judgment) ComC 26-Jul-2017
The parties disputed the existence of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house.
Held: The claim failed: ‘no . .
Cited – Olins v Walters ChD 19-Dec-2007
A claim was made for the proof of a will and of a codicil as a mutual will.
Norris J said of one witness: ‘I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Re Oldham; Hadwen v Myles 1925
The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the . .
Cited – Paul v Constance CA 8-Jul-1976
. .
Cited – Fry v Densham-Smith CA 10-Dec-2010
The parties disputed whether wills made were mutual.
Held: The Court upheld the finding of the judge at first instance that there was an oral agreement between two testators (Denny and Laura, each with a son from a previous marriage, Martin . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 31 October 2021; Ref: scu.593128

The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a general power of appointment to the said Diana Mary Rawstron and the said Rose Pearce jointly’. The executors said that this was not an absolute gift but was subject to a secret trust. The defendant said that it was a half secret trust which failed, so that the residue fell into intestacy.
Held: A secret trust was one where both the terms and very existence of te trust was hidde. A half secret trust was where the terms only were hidden, but not the fact of the trust. The gift in clause 6 was expressed as a simple gift of residue, and clause 6 contained no mention of a trust. The new will change dthe relevant wordings, and it was unrealistic to suggest that Lucian Freud did not have an appreciation of secret trusts.
In the light of (a) the natural and ordinary meaning of the words used in clause 6 of the Will, (b) the overall purpose of the Will, (c) the other provisions of the Will, (d) the material factual matrix when the Will was made and (e) common sense, and the Claimants’ interpretation of clause 6 of the Will was to be preferred to that suggested by the Defendant. The claim therefore succeeded.

Richard Spearman QC
[2014] EWHC 2577 (Ch)
Bailii
Administration of Justice Act 1982 21
England and Wales
Citing:
Cited – Saltmarsh v Barrett HL 13-Jul-1861
A testator after directing payment of his debts, funeral and testamentary expenses and legacies, bequeathed some legacies to charities, and gave to three persons legacies of nineteen guineas each, and appointed them executors. He then bequeathed . .
Cited – Royal Society for The Prevention of Cruelty To Animals v Sharp and Others CA 21-Dec-2010
The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Williams v Arkle HL 1875
The testator had a sister, a wife, and two illegitimate children. His appointed George Arkle (‘GA’), if GA should survive him, his executor and trustee, but if GA should die in his lifetime he appointed Benjamin Arkle (‘BA’). He then gave ‘the . .
Cited – In re Rees CA 1950
The testator appointed a friend and his solicitor as executors and trustees of his will. He devised and bequeathed the whole of his property ‘(subject to payment of my funeral and testamentary expenses and debts) unto my trustees absolutely they . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 31 October 2021; Ref: scu.535481

The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the Act are rare because the judge has wide powers to decide on the reasonableness of the provision. In this case the judge had correctly applied the decision in In re Coventry to interpret what was meant by maintenance. There was no real prospect of an appeal succeeding.
What is reasonable maintenance varies with the particular parties and their station in life.

Mummry LJ, Munby J
[2008] EWCA Civ 1002
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Cited – Re Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
Cited – In Re Duranceau 1952
What amounts to reasonable maintenance for a spouse must be assessed in the context of the applicant’s ‘station in life’. . .
Cited – Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased) FD 2004
The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
Held: Munby J made an award under the Act to an adult child of the deceased, part of which . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 31 October 2021; Ref: scu.277853

[2000] EWCA Civ 3038, [2001] WTLR 593
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales

Updated: 27 October 2021; Ref: scu.346811

[1865] EngR 770 (B), (1865) 35 Beav 36
Commonlii
England and Wales

Updated: 27 October 2021; Ref: scu.281682

Will established on secondary evidence, the original being in the colonies.
[1738] EngR 1032, (1738) 4 Beav 143, (1738) 49 ER 293 (A)
Commonlii
England and Wales

Updated: 26 October 2021; Ref: scu.386425

A, by will, devises to B 400 pounds, which was the sum lent, in full satisfaction of all the monies which he owed E, and subjects his real estate to the payment of his debts. The debt which A owed B amounted, by reason of interest, to 800 pounds, but was barred by the Statute of Limitations : Court will suppose the testator mistaken in his computation, and the whole debt shall be paid.
[1690] EngR 1, (1690) Prec Ch 9, (1690) 24 ER 5
Commonlii
England and Wales

Updated: 23 October 2021; Ref: scu.393231

A testator after directing payment of his debts, funeral and testamentary expenses and legacies, bequeathed some legacies to charities, and gave to three persons legacies of nineteen guineas each, and appointed them executors. He then bequeathed ‘the whole of his estate and effects whatsoever and wheresoever absolutely’ to the same three persons by name, their executors and administrators ‘charged nevertheless, and he thereby charged ‘certain parts thereof with certain payments, which did not nearly exhaust the estate; and he declared that all costs, charges and expenses which his executors or any of them should incur might be retained by them out of any monies which might come to their hands from any part of his estate. The testator died in 1837.
Held, by the Lord Justice Turner, affirming the decision of the Master of the Rolls, dissentiente the Lord Justice Knight Bruce, that the executors took the residue, not beneficially but as trustees, arid that it belonged to the next of kin.
Per the Lord Justice Turner, whether the statute 11 Geo. 4 and 1 WiIl. 4, c. 40, did not prevent the exacutors from taking beneficially, quaere.
Knight Bruce LJ dissenting held that ‘The executors . . seem to me to have been made residuary legatees for their own benefit absolutely’ although being ‘far from confident as to the accuracy of this conclusion, which indeed . . is probably erroneous’.
Turner LJ said: ‘The question therefore is, whether, upon the true construction of this will, the testator intended to give the residue to these three persons, not only absolutely but beneficially also. That the words of gift which the testator has used would be sufficient to pass the residue to these three persons, both absolutely, as the testator has expressed it, and beneficially, cannot be doubted; and, no doubt, we are bound to collect the testator’s intention from the words which he has used; but then it is from the words of the whole will, and not of the particular clauses only, that the intention must be collected. This has been the view which has been taken in all the cases.
Now it is to be observed that the gift to these three persons is of the whole of the testator’s estate and effects; but the testator had before directed his debts, legacies and funeral and testamentary expenses to be paid, and had before given several legacies to charities, and equal legacies of small amount to the executors. He must have intended, therefore, that these payments should be made out of what was given to these three persons, and that to this extent at least they should take as executors or trustees; and if it be clear that they were, as to part of the gift, to take in either of those characters, I cannot see my way to hold that, as to the rest of the gift, they could be intended to take beneficially. The gift to these persons, too, is in joint-tenancy, which is indicative of trust; and the long annuities, so far at least as they are charged, are treated as remaining vested in them as executors. It may be observed, too, that the power to vary securities is not in terms expressed to be, and I doubt whether it was meant to be, confined to the period of the subsistence of the charges. Again, there are here equal legacies to these three persons who are appointed to be the executors, and these legacies must be payable out of the estate which is said to be given to these three persons beneficially, so that the testator, according to the Appellant’s contention, was at the same time giving to these three persons part and the whole of the same estate. It was said that these legacies may well have been given for the purpose of putting the executors to that extent upon the same footing as the other legatees; but that argument has been urged in many cases in which the question has been whether executors to whom there was no express gift were trustees of the residue for the next of kin, and it has not succeeded. I do not see my way to hold that much if any greater weight is due to the argument in cases in which there is a gift to the persons who are the executors, when the question is what is the nature and character of that gift. There is, besides all this, the indemnity clause, which extends to the whole estate; and it is surely difficult to suppose that the testator could intend to provide for the indemnity of the executors out of funds which he intended them to take beneficially. Looking to all these considerations, I have come, though certainly not without doubt, to the same conclusion as the Master of the Rolls, that this testator did not intend that these executors should take the residue beneficially, and the appeal, therefore, must be dismissed . . ‘
[1861] EngR 816, (1861) 3 De G F and J 279, (1861) 45 ER 885
Commonlii
England and Wales
Citing:
Appeal from – 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 . .

Cited by:
Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD 30-Jul-2014
The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.284577

[1853] EngR 270, (1853) 1 Drew 401, (1853) 61 ER 505
Commonlii
England and Wales

Updated: 22 October 2021; Ref: scu.294256

whether a bequest of three-tenths of the residue of the testator’s estate is void from uncertainty.
[1954] ScotCS CSIH – 4
Bailii
Scotland

Updated: 20 October 2021; Ref: scu.279433

The testator bequeathed several legacies, and, among others, to SW, 14,000 pounds and to the latter gentleman’s family 6000 pounds. SW. had six children, all living at the date of the testamentary instrument, and at the death of the testator, and no other issue. Held, that such six children were, as joint tenants, exclusively entitled to the legacy of 6000 pounds.
[1843] EngR 1210, (1843) 3 Hare 65, (1843) 67 ER 298
Commonlii
England and Wales

Updated: 16 October 2021; Ref: scu.306904

[1866] EngR 114, (1866) 35 Beav 587, (1866) 55 ER 1024
Commonlii
England and Wales

Updated: 16 October 2021; Ref: scu.280825

The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court now considered a request for permission to appeal the award of costs.
Held: The court had already exercised its discretion on this issue. The costs had totalled nearly andpound;300,000, of which most was spent on preparations for the Inheritance claim. The substantive judgment itself was not being challenged. The judge had erred in his approach and not appreciated the significance of a concession made by the appellants, and incorrectly identified the winners of the action, and the order was adjusted accordingly.
Peter Gibson LJ discussed the issue of the validity of the attestation of the will: Wright v. Sanderson (1884) 9 PD 149 … demonstrates . . the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case 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. This court dismissed an appeal to it, the Earl of Selborne LC observing (9 PD at p161), ‘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.’
To similar effect was Lord Penzance in Wright v. Rogers (1869) LR 1 PD 678 at p682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p682 that the question was whether the court was able to rely on the witness’s memory. He continued:
‘The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.
It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has ‘the strongest evidence’, in Lord Penzance’s words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.’
Waller LJ VP, Rix LJ, Moore-Bick LJ
[2006] EWCA Civ 1784
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
See Also – 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. . .
See Also – Daliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
. .
See Also – 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 – Cie Noga d’Importation et d’Exportation SA v Australia and New Zealand Banking Group Ltd 2002
Where one party appeals a judgment on its merits, the respondent is then entitled to seek to support it, even without needing further permission, on further grounds. . .

Cited by:
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
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. . .
Cited – Wilson v Lassman ChD 7-Mar-2017
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.247626

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. The evidence of the widow was not credible, and the grant of probate was revoked.
The Hon Mr Justice Lightman
[2004] EWHC 1613 (Ch)
Bailii
England and Wales
Citing:
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 . .
Doubted – In the Estate of Benjamin, deceased 1934
The intention of a purported witness to the execution of a will is immaterial if the will is in proper form. . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – Re Colling Dec’d 1972
For the valid execution of a will, the burden is on those propounding the will to establish on the balance of probabilities that the technical requirements of the Act are strictly complied with irrespective of whether such insistence defeats the . .
Cited – Daintrey v Butcher 1888
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 . .

Cited by:
Appeal from – 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 . .
See Also – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.198711

The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was not read over or summarised to him before he executed it and Devlin J was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the ‘Last wish’ and had executed the will in the understanding that it gave effect to its provisions.
The court considered the necessary mental capacity of a testator when executing a will: ‘If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely upon the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions.’
Devlin J
[1952] Times LR 925
England and Wales
Citing:
Cited – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited – Pereira v Pereira; Perera v Perera PC 23-Mar-1901
The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is . .

Cited by:
Approved – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.196962

The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval. An application to strike out a challenge to a codicil on the grounds that the claim disclosed no cause of action. The court considered the effect of delay on a challenge to the validity of a will, and the effect of the alleged inability of the testator to read the will.
Held: Any invalidity arose from the lack of testamentary capacity, and not from any want of knowledge and approval. The challenge failed.
Slade J described the position in law: ‘The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.’
Slade J
[1982] 1 WLR 310
England and Wales
Citing:
Applied – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.421023

Lord Merrivale, President
Unreported, 06 March 1928
England and Wales
Citing:
Applied – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.196961

[1791] EngR 1527, (1791) 3 Bro CC 393, (1791) 29 ER 605
Commonlii
England and Wales

Updated: 13 October 2021; Ref: scu.363042

Directions where estate possibly subject to claims for historic sex abuse.
[2020] EWHC 1869 (Ch)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.653020

Judgment on the trial of a claim brought by the claimant against her sister and brother in law in relation to their mother’s will and related affairs of her estate. In part it is a probate claim, for an order revoking the grant of probate made to the first defendant in respect of a will said to have been made by their mother at a time when she was subject to undue influence from the first defendant and/or neither knew nor approved of the contents. In part it is a derivative claim on behalf of the estate, seeking (i) in particular an order setting aside an assignment of a one half share of the beneficial interest in the house in which their mother lived to the defendants, said to have been procured by undue influence of the defendants, but also (ii) accounts in relation to rents received by the first defendant in respecting of the letting of the mother’s house, and (iii) other relief.
HHJ Paul Matthews
[2020] EWHC 2151 (Ch)
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.653022

[1681] EngR 161, (1681) Al 8, (1681) 82 ER 886 (B)
Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.402165