Category: Wills and Probate

In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd: 1980

The words in the section ‘immediately before’ in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place at the time of the death. In this case a short stay in hospital prior to death is not sufficient to prevent the claim. ‘The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word ‘immediately’ in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.
The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this, rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word ‘immediately’ plainly confines the court to the basis of the arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended and the state of affairs under it.’

Judges:

Robert Megarry VC

Citations:

[1980] 1 Ch 444, [1980] 1 All ER 266

Statutes:

Inheritance (Provision for Family and Defendants) Act 1975 1

Jurisdiction:

England and Wales

Cited by:

Approved – Jelley v Illife CA 1981
The court referred to the case of In re Beaumont and continued: ‘In considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards . .
Cited – Gully v Dix; In re Dix deceased CA 21-Jan-2004
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm.
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 25 November 2022; Ref: scu.193411

Earl of Durham v Wharton: HL 1836

WL, brother of JL, gave property to JL charged with a legacy of pounds 5,000 to JL’s daughter, Susan, then unmarried. JL by his will later gave her pounds 10,000 on trust for life with remainder to her children and provided that the pounds 10,000 was to be additional to the gift to Susan (the pounds 5,000) provided by his brother’s will. Susan then married and JL advanced pounds 15,000 to her husband as a marriage portion. The marriage articles provided that such pounds 15,000 was to be in satisfaction of what would come to her (pounds 5,000) under WL’s will. JL then died. The question arose whether the pounds 15,000 advanced by JL to Susan’s husband, Mr Wharton, adeemed only the pounds 5,000 coming under WL’s will or also the pounds 10,000 provided for under JL’s will. The marriage articles provided that the pounds 5,000 was to be thereby adeemed, and it was argued, under the ‘expressly unius’ construction rule, that JL could not have intended the pounds 10,000 provided by his will to be adeemed. JL’s will gave the pounds 10,000 in trust for Susan for life and after her death for her children (by whatever husband) whereas under the marriage articles the money was given to her husband as a marriage portion in consideration of which her husband was to secure to her, during their joint lives, andpound;500 p.a. for pin money, a jointure of pounds 1200 p.a. and portions for the daughters and younger sons of their marriage. It was argued that the limitation under JL’s will were widely different from those applicable under the marriage settlement.
Held: As to the difference ‘. . . I apprehend that this will not prevent the application of the principle of ademption and that the authorities are all the other way’ and ‘the circumstance of the limitations being different does not at all affect the question’. The presumption against double portions applied and that the gift of pounds 10,000 by JL’s will had been adeemed.

Judges:

Lord Lyndhurs

Citations:

(1836) 3 C and Finelly 14

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 25 November 2022; Ref: scu.194491

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 widow was found to have a one third interest in it. The judge took the disposable balance of the estate to be pounds 7,000, of which the Master had awarded pounds 2,000 to the plaintiff. The judge expressed ‘some surprise’ that the matter had been referred to him by the plaintiff, who did not think pounds 2,000 enough. The widow was 74, and living on an old age pension and supplementary benefit. The plaintiff was 46, in good health, and capable of full time employment, but not well off. Against this background, Oliver J questioned whether this was the sort of case in which it was the intention of Parliament that the court should interfere to upset the dispositions which the legislature had made on the deceased’s behalf and decided that it was not. He dismissed the summons.
Held: The son’s appeal failed. Applications under the 1975 Act in smaller estates should be discouraged, but that does not mean that applications cannot be made or that, when made, they will not be considered on their merits.
Goff LJ approved the description of the proper approach as described by the judge at first instance: ‘So 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’
The court discussed the view to be taken of a deceased’s statement of wishes. Goff LJ said: ‘Indeed, I think any view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective. An express reason for rejecting the applicant is a different matter and may be very relevant to the problem.’ In the case of an application by an adult son of the deceased who was fit and able to work, and in work, some ‘special circumstance, typically a moral obligation’ was required. The application ‘failed because the deceased owed him no moral or other obligation and no other special circumstance was shown’. As to a statement left with a will: ‘Indeed, I think any view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective. An express reason for rejecting the applicant is a different matter and may be very relevant to the problem.’
The court approved the statement of Oliver J at first instance: ‘It seems to me, however, that in regarding the circumstances and in applying the guide lines set out in section 3, it always has to be borne in mind that the Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards 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. This may seem almost a truism, but I mention it because some of counsel’s submissions for the plaintiff, although he did not put it so in terms, seemed to me to be leading to the conclusion that because the deceased’s intestacy and the inflation of property values had produced something of a windfall, which could reasonably have been disposed of by the deceased in favour of his son if he had thought about it, therefore the court ought to step in and divert it to where it would be most useful and appreciated.
That is not the purpose of this legislation at all. 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. This was the approach under the former legislation and it is reflected in the passage from the judgment . . in Re Ducksbury (deceased) . . In my judgment the plaintiff’s claim substantially rests on two limbs only, that is to say (a) that he is a son of the deceased with whom it might be thought that there would be a bond of natural affection and (b) that although he is in employment and capable of maintaining himself his circumstances leave him little or no margin for expenditure on anything other than the necessities of life. I have every sympathy for any plaintiff who, on relatively slender earnings, has to meet a steadily rising cost of living, but, as I have said, I cannot regard the Act as one which entitles the court to interfere with a deceased person’s dispositions simply because a qualified plaintiff feels in need of financial assistance. I cannot in this case find any circumstances which satisfy me that it is an unreasonable result of the intestacy laws that no provision is made for the plaintiff’s maintenance and in my judgment the application must fail.’
Geoffrey Lane LJ divided the preliminary stages into three and said: ‘I agree. The questions to be answered by Oliver J. were these: first of all, did the statutory provisions relating to intestacy operate in this particular case so as not to make reasonable financial provision for the plaintiff son; secondly, if they did so operate – that is to say, if there was no reasonable provision – should the court exercise in its discretion its power to order some provision to be made; and thirdly, if so, in what manner should that provision be ordered?
Since the plaintiff received nothing from the estate on his father’s death intestate, in effect the first question becomes this: Was it reasonable in all the circumstances that the plaintiff should receive no provision from his father’s estate?
The judge reserved his judgment. The result was a meticulous and painstaking examination of all the relevant facts of the case, and a conclusion that in the circumstances the contentions on behalf of the plaintiff must fail; that it was reasonable for this plaintiff to receive nothing and for the mother, who is the widow defendant, to receive whatever was left after all this litigation had been paid for.
Now whatever the rights and wrongs of this matter may be, it seems to me that this was par excellence a case in which the decision of the judge should stand as to what is reasonable and what is not reasonable, unless it is clearly shown that he has gone wrong on a point of law, or in some way has misapplied the facts of the case to the law. Particularly in the case of small estates such as this one, appeals like this to this court are strongly to be discouraged. It has been said before, in particular in the passage to which our attention has been drawn, by Fenton Atkinson LJ in Re Gregory (Deceased), Gregory v Goodenough [1970] 1 WLR 1455, 1462.’

Judges:

Goff LJ, Buckley LJ, Geoffrey Lane LJ

Citations:

[1980] Ch 461, [1979] 3 All ER 815

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Appeal from (Affirmed) – 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 . .
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 – Re Ducksbury (deceased) 1996
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 . .

Cited by:

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 . .
Cited – 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 – Re Pearce, Deceased, Pearce v Pearce CA 25-Jun-1998
The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
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 – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of pounds 50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and . .
Cited – H v Mitson and Others FD 1-Dec-2009
. .
Cited – Wright v Waters and Another ChD 6-Nov-2014
The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her . .
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 . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter?
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2022; Ref: scu.197023

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 . .’

Citations:

(1864) 33 Beav 574

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 25 November 2022; Ref: scu.194473

University Hospital Lewisham NHS Trust v Hamuth and others: ChD 23 Jan 2006

The body of the deceased had been retained by the hospital pending resolution of legal proceedings relating to his death. No grant had been yet obtained in the estate.
Held: In the absence of anybody else with authority, the hospital having charge of it, has both the duty and the right to decide on how the body should be dealt with.

Judges:

Hart J

Citations:

[2006] EWHC 1609 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .

Cited by:

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

Wills and Probate

Updated: 24 November 2022; Ref: scu.245413

Roberts v Phillips: 1855

Judges:

Lord Campbell CJ

Citations:

(1855) 4 El and Bl 450

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 24 November 2022; Ref: scu.223793

Andrews v Partington: 1791

Unless the contrary intention is expressed, where at the time of the trust, the class of beneficiaries is not identified, it will close as soon as the first member becomes entitled to take his share.

Citations:

(1791) 3 Bro CC 401

Jurisdiction:

England and Wales

Trusts, Wills and Probate

Updated: 24 November 2022; Ref: scu.222681

Layton v Martin: 1986

The deceased had written to the Plaintiff offering her ‘what emotional security I can give, plus financial security during my life, and financial security on my death.’
Held: The statement could was insufficient to establish either a constructive trust or a proprietary estoppel. Scott J said: ‘The proprietary estoppel line of cases are concerned with the question whether an owner of a property can, by insisting on his strict legal rights therein, defeat an expectation of an interest in that property, it being an expectation which he has raised by his conduct and which has been relied on by the Claimant The question does not arise otherwise than in connection with some asset in respect of which it has been represented, or is alleged to have been represented, that the Claimant is to have some interest… A representation that ‘financial security’ would be provided by the deceased to the Plaintiff . . is not a representation that she is to have some equitable or legal interest in any particular asset or assets.’

Judges:

Scott J

Citations:

[1986] 2 FLR 227

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate, Family

Updated: 24 November 2022; Ref: scu.220639

Arthur v Bokenham: 1708

Supervening insanity will not revoke a will made when the testator was of sound mind.

Citations:

[1708] 11 MOD RAP 148

Jurisdiction:

England and Wales

Cited by:

Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 November 2022; Ref: scu.219630

Day v Trig: 1715

The testator had made a testamentary gift of his freehold houses in Aldersgate Street, when he had only leasehold properties there, the word ‘freehold’ was rejected. The court stated that it would not have done this if there had also been freehold houses there, but in that case it was satisfied that it was the testator’s intention to pass some houses there.

Citations:

(1715) 1 PW 286

Jurisdiction:

England and Wales

Cited by:

Cited – Dutton and Dutton v Dutton and Brown ChD 3-Feb-2000
An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 November 2022; Ref: scu.198157

Macaulay and Farley v Premium Life Assurance Co Ltd: 29 Apr 1999

Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant.
Held: The damage claimed (liability for inheritance tax) was not suffered until the date of death. ‘The claimants are not suing in respect of a lost opportunity suffered by Mrs Macaulay in her lifetime. They are suing in respect of the IHT liability which arose on Mrs Macaulay’s death and which did not exist until she died.’ and ‘the damage relied on as a central ingredient of the cause of action is the amount of IHT payable by Mrs Macaulay’s estate. In my judgment, it is of some relevance that the IHT payable on death is imposed directly on the personal representatives as such. It is not imposed on the deceased ‘

Judges:

Park J

Citations:

Unreported, 29 April 1999

Jurisdiction:

England and Wales

Cited by:

Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Wills and Probate

Updated: 24 November 2022; Ref: scu.196071

Williams v Williams: 1882

By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her expenses from his executors. After the body had been buried at the direction of the executors, Miss Williams therefore caused it to be dug up and (because cremation was not lawful in Britain) sent it to Milan for cremation. She caused the ashes to be placed into a vase and claimed her expenses from the executors.
Held: Her claim failed. An executor having lawful possession of a corpse may have a duty to arrange its burial. There is no property in a corpse, and a person cannot effectively dispose of it in his will. Any directions given by the deceased with regard to the disposal of his body are not enforceable as a matter of law.

Judges:

Kay J

Citations:

[1882] 20 ChD 659

Jurisdiction:

England and Wales

Cited by:

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 – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
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

Updated: 24 November 2022; Ref: scu.195011

Nightingale v Goulbourn: 1847

A testamentary gift to the Chancellor of the Exchequer was expressly impressed with a trust for Great Britain.

Citations:

(1848) 2 Ph 594, (1847) 5 Hare 484

Jurisdiction:

England and Wales

Cited by:

Cited – Sir Graham Stanley Latimer and others – Trustees for the Crown Forestry Rental Trust v The Commissioner of Inland Revenue PC 25-Feb-2004
PC (New Zealand) The Crown created a charitable trust for certain Maori people. Upon exhaustion of the purpose, the fund was to revert to the Crown. The trustees appealed a finding of liability to income tax.
Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Updated: 24 November 2022; Ref: scu.194637

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 care has to be taken not to offend the parole evidence rule where the gifts involve the construction of written instruments, such evidence has been admitted.

Judges:

Sir James Wigram VC

Citations:

(1844) 3 Hare 509

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 24 November 2022; Ref: scu.194484

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 to satisfy the legacy.

Citations:

(1709) 2 Vern p 646

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 24 November 2022; Ref: scu.194490

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’.

Citations:

(1742) 2 Atk 516

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 24 November 2022; Ref: scu.194487

Weir v Grace: HL 28 Nov 1899

Opinion (by the Lord Chancellor and Lord Robertson) that where a will is made in favour of a law-agent by a client, but is prepared and carried through by an independent law-agent, then in the absence of collusion between the two law-agents the onus of proving that the will was obtained by undue influence on the part of the agent benefited by it rests, as in the ordinary case, upon the persons challenging the will.
Evidence upon which held ( aff. the judgment of Second Division) that even assuming the onus in such a case to lie upon the law-agent, he had proved sufficiently that the making of the will in his favour was the free and deliberate act of his client.

Judges:

Lord Chancellor (Halsbury), and Lords Macnaghten, Brampton, and Robertson

Citations:

[1899] UKHL 626, 37 SLR 626

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions, Wills and Probate

Updated: 24 November 2022; Ref: scu.631846

Barron v Woodhead and Another: ChD 25 Jun 2008

The claimant sought provision under the 1975 Act from the estate of his deceased wife.

Judges:

Behrens J

Citations:

[2008] WTLR 1675, [2008] Fam Law 844, [2008] EWHC 810 (Ch), [2009] 1 FLR 747, [2009] 2 FCR 631

Links:

Bailii

Statutes:

Inheritance (Provision For Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 23 November 2022; Ref: scu.346875

McLure v Evans: 1861

The court must look to the testator’s intentions to decide whether there has been an ademption of a gift.

Citations:

(1861) 30 LJNS Ch 295, (1861) 29 Beav 42

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 23 November 2022; Ref: scu.194488

Glen and Others v Steuart: HL 27 Apr 1874

A testatrix left to trustees her whole property, consisting principally of heritage, with directions to sell and dispose of it, and after payment of legacies to pay over the residue ‘to my heir-at-law, whom failing, to my next of kin.’ These instructions were carried out, and in a competition between cousins of the testatrix claiming as her next of kin, and a cousin’s child claiming as her heir-at-law, Held (aff. judgment of Court of Session) that the testatrix did not by ‘heir-at-law’ mean her heirs in mobilibus, but her heir in heritage – her intention being to give the residue to the person who would have succeeded to it had a sale not been necessary.

Judges:

Lord Chancellor Cairns, Lords Chelmsford and Selborne

Citations:

[1874] UKHL 496, 11 SLR 496

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 22 November 2022; Ref: scu.650214

Coutts and Company v Banks and Others: ChD 21 Nov 2002

Directions whether to take proceedings in relation to a particular chattel. If the chattel was an asset of the estate, it is given by the will to the First Defendant, so that the benefit of its recovery would go to her, whereas residue is given in equal shares to the other Defendants. The case involves a consideration of the incidence of costs in relation to an asset which is the subject of a specific legacy and of the duties of an executor as regards such an asset.

Judges:

Mr Justice Lloyd

Citations:

[2002] EWHC 2460 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 22 November 2022; Ref: scu.463545

Spendlove Daughter of Charles Spendlove, And Mary His Wife, Who Was Sister of John Lambert Deceased v John Aldrich And Mary His Wife, Henry Capps, Samuel Hartly, Samuel Wade And John Wade: 1790

If a man makes two persons his executors and residuary legatees and dies, and then one of the executors becomes a bankrupt, a legatee under the wilt is intitled to recover front the other out of any part of the testator’s estate in his hands what remains due of his legacy, notwithstanding he had received interest upon it from the bankrupt for several years after it became payable, if the bankrupt would not during that time pay the principal, particularly if he were an infant during that time.

Citations:

[1790] EngR 1186, (1790) 2 Ld Raym 1320, (1790) 92 ER 362

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 22 November 2022; Ref: scu.364239

Parks v Clout: CA 10 Jun 2003

The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic prospect of success.
Held: There was no evidence to support the claim which was at best speculative. The appeal was denied.

Judges:

Thorpe LJ, Jacob J

Citations:

[2003] EWCA Civ 893

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Atkinson v Morris CA 1897
The plaintiff was able to prove that the testator had said she had destroyed one copy of a will she had made in duplicate.
Held: Though that evidence would have had the effect of revocation, it was hearsay and inadmissible and her intentions . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 November 2022; Ref: scu.185522

Aeroflot v Berezovsky: ChD 17 Dec 2013

The deceased met his death in 2013, but no application had been made for probate. The claimant wanted to pursue a claim against the estate, and receivers were appointed by the court. The deceased’s daughter then sought letters of administration de colligenda bona.

Judges:

Morgan J

Citations:

[2013] EWHC 4348 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 20 November 2022; Ref: scu.520878

Stewart v Maclaren and Another: HL 18 Jun 1920

A testatrix left a will and three codicils. The third codicil, which was notarially executed, repeated the provisions of the second codicil with the exception of one, and expressly confirmed the testament and first, but not the second, codicil. The provision omitted to be repeated was the appointment as trustee of a law agent, the son of the notary. Trusteeship carried a legacy of pounds 500. The subscription to the second codicil was very illegible.
Held (aff. judgment of the First Division) that the second codicil was not revoked.

Judges:

Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Shaw

Citations:

[1920] UKHL 531, 57 SLR 531

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 20 November 2022; Ref: scu.631536

Pedley v Dodds: 1866

If all the words of a description are true and correctly describe a thing certain the court will not presume that there is any error so as to extend the meaning of the words to something not properly comprehended in the express words. In 1802 the testator purchased the estate called Arkley Hall Farm in the parish of Ridge in the county of H. In 1813 and 1815 he acquired adjoining land in the parishes of Shirley and Barnet in the same County which was thrown into the farm and occupied therewith and the whole thenceforth called a farm. By his will in 1870 he devised all his estate consisting of the farm in the parish of Ridge in the county to trustees. Held the land in the parishes of Shirley and Barnet did not pass by this specific devise but instead passed under the residuary devise.
Lord Bacon applied the maxim falsa demonstratio non nocet, so that erroneous descriptions of property in documents should not be permitted to defeat the intentions of the parties.

Judges:

Lord Bacon

Citations:

(1866) 2 Eq 819, (1866) 14 LT 823, (1866) 14 WR 884 . . 803, (1866) 12 Jur NS 759

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Dover Magistrates’ Court ex parte Norman Lionel Webb CA 15-Jul-1999
. .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 19 November 2022; Ref: scu.258738

Re Pearce, Deceased, Pearce v Pearce: CA 25 Jun 1998

The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a moral obligation on a father arising out of the very substantial amount of work carried out by the son coupled with the promises that were made to him by the father.
Held: Whilst working, he had been told ‘This will be yours, now you’ve got to work for it’ The claimant had worked for the farm and contributed, and there remained some moral obligation in his favour, and that obligation had been created for consideration. The judge had capitalised the claimant’s request for maintenance from the estate. The appeal against the judge’s award was denied.
Nourse LJ said: ‘In my judgment [the judge] was entitled to conclude that there was such an obligation. Moreover, the promises having been that the plaintiff would inherit the farm, the obligation was one which would not arise until the deceased’s death. I do not say that it was cast in stone. No doubt it could, for example, have been discharged if the plaintiff had acted inappropriately in the meantime. But there was no evidence and no finding to that effect.’

Judges:

Nourse LJ

Citations:

[1998] EWCA Civ 1097

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

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 . .
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

Cited by:

Cited – Wright v Waters and Another ChD 6-Nov-2014
The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 November 2022; Ref: scu.144576

M P Galt (Alexander’s Factor) v Miller (Finlay’s Trustee) and Others: HL 25 Feb 1875

A took the title to heritable subjects which he had purchased in the names of certain persons, who, by deed of declaration of trust, declared that they held the subjects in trust inter alia for the payment of the free yearly proceeds to A during his life, for his liferent use allenarly, and after his death to his wife, if she survived him, her liferent to be restrictable to such extent and in such manner as might be fixed by A; and after the determination of the foresaid liferents, in trust for A’s children, in such shares and proportions as might be fixed by A, and failing such apportionment, share and share alike; declaring that the fee of the shares should be payable after the determination of the said liferents, and after the whole children who should have survived A and his wife, and who should be alive, had attained majority, or at such other times after the determination of the said liferents as should be fixed by A. A died, survived by his wife, and without fixing the shares of the children. Held (reversing the judgment of the Second Division of the Court of Session) that the children’s shares of the estate vested before the death of the widow. Cause remitted to the Second Division to review generally the interlocutors complained of.

Citations:

[1875] UKHL 630, 12 SLR 630

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 November 2022; Ref: scu.650099

In the Goods of Newland, deceased: 1952

The judge upheld the nuncupative will of an apprentice in the merchant navy while on shore leave (which was, at longest, from 4 July to 1 August 1944) from the troopship on which he was employed.

Citations:

[1952] P 71

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: 19 November 2022; Ref: scu.375765

Archibald T F Fraser of Abertarff v Lord Lovat Et E Contra: HL 23 Feb 1875

Circumstances in which held (aff. judgment of Court of Session) that an executor was entitled to relief against an entailed estate for various accounts paid by him as executor.

Judges:

Lord Chancellor Cairns, Lords Hatherley and Selborne

Citations:

[1875] UKHL 399, 12 SLR 399

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 17 November 2022; Ref: scu.650098

Ramlort Ltd v Michael James Meston Reid: CA 8 Jul 2004

The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the declaration of trust was ineffective as a transaction at an undervalue. The company appealed an order which returned to it the payments it had made, but that the balance was held for the insolvent estate. They said that at the time the payments were made, they were for full value.
Held: To have a transaction at an undervalue by an ‘individual’ within the sections, the value in money or money’s worth, from the debtor’s point of view, of the consideration for which he enters into the transaction must be ‘significantly less’ than the value in money or money’s worth, again from the debtor’s point of view, of the ‘consideration provided’ by the debtor. The value in money or money’s worth of the totality of whatever it is that the debtor is parting with under the transaction. There is no absolute need to ascribe exact values before making that judgment. There had been a transaction at an undervalue, and the order was correct.

Judges:

Lord Justice Jonathan Parker Lord Justice Judge Lord Justice Waller

Citations:

[2004] EWCA Civ 800, [2004] BPIR 985, [2005] 1 BCLC 331

Links:

Bailii

Statutes:

Insolvency Act 1986 339

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 2003
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Chohan v Saggar and Another CA 27-Dec-1993
The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that . .
Cited – Agricultural Mortgage Corporation Plc v Woodward and Another CA 30-May-1994
A tenancy granted by an insolvent farmer to his wife was set aside because of additional benefits which were granted. The tenancy was held to have been granted at an undervalue, even though the court was unable precisely to measure the value of the . .
Cited – Walker v WA Personnel Ltd 2002
The assets of group of companies were sold, and it then went into insolvent liquidation. The liquidator claimed that the sale was at an undervalue, and appliied to continue an interlocutory injunction.
Held: There was a triable issue as to . .

Cited by:

Full Hearing – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Wills and Probate, Trusts

Updated: 14 November 2022; Ref: scu.198603

Boudh v Boudh and Another: CA 22 Mar 2007

Judges:

Jacob LJ

Citations:

[2007] EWCA Civ 302

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Wills and Probate

Updated: 12 November 2022; Ref: scu.251388

Rittson-Thomas and Others v Oxfordshire County Council: ChD 9 Mar 2018

Citations:

[2018] EWHC 455 (Ch)

Links:

Bailii

Statutes:

School Sites Act 1841

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rittson-Thomas and Others v Oxfordshire County Council CA 21-Feb-2019
. .
At ChD – Rittson-Thomas and Others v Oxfordshire County Council SC 23-Apr-2021
If land has been donated under the 1841 Act, and the school later moves to a new site, can the original site be sold to help pay for the costs of the new school? . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 November 2022; Ref: scu.605845

Re Erskine 1948 Trust: ChD 29 Mar 2012

The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last beneficary’s death, all impediments to inheritance by adopted children had been removed by statute.
Held: The assorted Adoption Acts were limited so as to exclude any effect on the situation. But for the Human Rights issue, the clause would be interpreted on the basis of the law as at the date of the settlement, and: ‘the ECtHR has an emphatic aversion to discrimination against illegitimate and adopted children. But in the context of the present case this aversion is not easy to apply directly. In the first place the Convention became part of English law only in 2000. The question of retrospectivity therefore arises : how does the Convention affect the construction of a definition enacted almost 75 years before the Convention became part of English law? Second, even if the Convention affects the construction of a statute, to what extent does it affect the construction of a private-law disposition which incorporates a statutory definition? ‘ Though the ECHR had recognised such a right as legitimate in individual cases, those case concerned provisions by statute, not those by individuals.
By 1948 the legal framework for adoption had been established by the 1926 Act, and section 5 expressly enacted that adoption had no effect to confer inheritance rights on adopted children unless a contrary intention appears. That was the state of English law when the settlement came to be made in 1948. Seeing that there was no express contrary provision in that settlement, it follows that the use of the defined phrase ‘statutory next of kin’ did not include adopted children.

Judges:

Mr Mark Herbert QC

Citations:

[2012] EWHC 732 (Ch), [2012] 3 All ER 532, [2012] 3 FCR 114, [2012] WTLR 953, [2013] Ch 135, [2012] Fam Law 809, 14 ITELR 890, [2012] WLR(D) 104, [2012] 3 WLR 913, [2012] 2 FLR 725

Links:

Bailii

Statutes:

Adoption of Children Act 1926 5, Adoption Act 1950, Adoption Act 1976, Administration of Estates Act 1925 46(1)(v) 50(1), Interpretation Act 1978 20(2), European Convention on Human Rights, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – In re Hooper’s Settlement, Phillips v Lake CA 1943
A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof . .
Cited – In re Gansloser’s Will Trusts CA 1952
A 1929 will created a trust in favour of the testator’s widow’s ‘relatives’.
Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the . .
Cited – Falkiner and Another v The Commissioner of Stamp Duties PC 7-Nov-1972
New South Wales – The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of ‘the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration . .
Cited – In re Bourke’s Will Trusts ChD 1980
The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs . .
Cited – Pla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .
Cited – Brauer v Germany ECHR 28-Jan-2010
Just satisfaction – friendly settlement . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Brauer v Germany ECHR 28-May-2009
The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .
Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
Cited – In re Ellenborough, Towry Law v Burne ChD 1903
The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .

Cited by:

Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family, Human Rights

Updated: 09 November 2022; Ref: scu.466372

Re Ofner; Samuel v Ofner: 1909

Amongst other legacies to various nieces and a nephew, the testator gave a legacy ‘to my grandnephew Robert Ofner’ of andpound;100 and to another ‘grandnephew Curt Ofner’ of andpound;100. However he had no such grandnephew or other relative of the name of ‘Robert’ Ofner, but he had four grandnephews, Alfred Ofner and Curt Ofner, who was correctly so described in the will, Richard Ofner, a brother of Alfred Ofner, and Botho Ofner. It was proposed to put in evidence a memo randum in the testator’s handwriting that had been given by him to his solicitors as instructions for his will, in which the following words occurred: ‘to my grandnephew Dr. Alfred Ofner andpound;200 to his brother Robert Ofner andpound;100’. Held the document was admissible, not as evidence of intention, but to explain what the testator meant by ‘my grandnephew Robert Ofner.’

Citations:

[1909] 1 Ch 60

Jurisdiction:

England and Wales

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: 09 November 2022; Ref: scu.374777

Cancer Research Campaign v Ernest Brown: 1998

An executor does not usually owe a duty to advise a beneficiary in connection with the affairs of the beneficiary. Tax avoidance is not an idea that runs naturally or should be attributed to ordinary people or to legal executives in a small firm of high street solicitors.

Citations:

[1997] STC 1425, [1998] PNLR 592

Jurisdiction:

England and Wales

Cited by:

Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence

Updated: 09 November 2022; Ref: scu.371289

Gowmans Solicitors v Lightowler: CA 7 Oct 1997

The applicant’s mother had died leaving him a life interest under her will. He had moved into property which had been hers, but without permission. In 1986 he had been ordered to leave. The judge had asked the solicitors administering the estate not to evict the applicant whilst his wife was nearby in a mental hospital. Now, some eleven years later he sought to appeal the order.
Held: The order had been correctly made, and the delay very considerable. The appeal failed.

Citations:

[1997] EWCA Civ 2430

Jurisdiction:

England and Wales

Wills and Probate

Updated: 09 November 2022; Ref: scu.142828

Corbett v Bond Pearce (a Firm): CA 8 Aug 1997

The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate of over andpound;150,000.

Citations:

[1997] EWCA Civ 531, [2001] Lloyd’s Rep PN 501, [2001] 3 All ER 769, [2001] PNLR 31, [2001] WTLR 419

Links:

Bailii

Jurisdiction:

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 – 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 . .
See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .

Cited by:

See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 09 November 2022; Ref: scu.142691

In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others: CA 17 Apr 1997

The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply the forfeiture rule.
Held: Disentitlement under a will because of murder leaves the will to be read as it had been worded; no re-interpretation should be undertaken. A declaration was made in favour of an intestacy.

Judges:

Lord Justice Nourse Lord Justice Henry Sir Patrick Russell

Citations:

Times 29-Apr-1997, [1997] EWCA Civ 1427

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Hunter’s Executors, Petitioners IHCS 1992
The testatrix left the residue of her estate absolutely to her husband ‘whom failing should he predecease me or should we die simultaneously or be held to have died simultaneously to any child or children born or to be born to me and the said Andrew . .
Cited – Re the Estate of Robertson, deceased ChD 1963
The testator appointed Marsden sole executor and beneficiary, but if Marsden should die within the testator’s lifetime his (M’s) adopted daughter should be the sole executrix and beneficiary. M was found guilty of the murder of the testator. The . .
Cited – In Re Sinclair, deceased CA 1985
The testator, a divorcee had already made a will leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund. He died in 1963. His former . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 November 2022; Ref: scu.141823

Musa and Others v Holliday and Others: CA 15 Oct 2012

Judges:

Sir Nicholas Wall P FD, Lloyd, Sullivan JJ

Citations:

[2012] EWCA Civ 1268

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

See Also – Holliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 05 November 2022; Ref: scu.464848

Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited: CA 13 Feb 1997

Executors may sue for a dependency claim despite a full and final settlement having been made by the deceased.

Citations:

Times 25-Feb-1997, [1997] EWCA Civ 1008

Jurisdiction:

England and Wales

Citing:

Appeal from – Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited 10-Mar-1995
The plaintiff claimed damages for mesothelioma. CEGB had provided a contractual indemnity in respect of damage or injury occurring before building works were taken over by a client in 1960. The question was whether a workman who died from . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Wills and Probate, Litigation Practice

Updated: 05 November 2022; Ref: scu.141404

Gill v Shelley: 28 Jan 1831

A testatrix gave a share of her residuary estate to the children of Mary Gladman deceased. Mary Gladman left two children, one legitimate, the other illegitimate. Evidence was admitted to prove that the illegitimate child had acquired the reputation of being the child of Mary Gladman ; that the testatrix well knew that fact, and that Mary Gladman left only those two children.

Citations:

[1831] EngR 402, (1831) 2 Russ and My 336, (1831) 39 ER 422

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 04 November 2022; Ref: scu.320280

Daniel, Broke, Abiola, Broke, Abiola v Abiola, Kalu: QBD 25 Jun 2003

The administration of the estate had been very contentious, with allegations of a fraudulent will. Letters of administration with no will annexed had been made in favour of one party who had recently been involved in proceedings where the will was pronounced valid. An application for the revocation of the grant was pending. Various orders were made to approve interim actions in the administration of the estate, including payment of accounts to the solicitors involved in the administration.

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 1562 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hewson v Shelley CA 1914
The commencement of a probate action does not of itself revoke the grant, and if the plaintiffs fail in the probate action, the grant will not be void ab initio. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 November 2022; Ref: scu.185461

Goulding and Goulding v James and Daniel: CA 10 Dec 1996

The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the variation, saying that it would be contrary to the intention of the testator, and that he was entitled to take into account other evidence of the testator’s wishes in deciding whether to approve the variation.
Held: The principles in Ladd v Marshall did not apply so strictly when an appeal court was exercising a protective and administrative function. Extrinsic evidence of a testator’s wishes was not admissible in evidence to amend the trusts of the will.
The court has a discretion whether or not to approve a proposed arrangement. That discretion is fettered by only one express restriction. The proviso to section 1 of the 1958 Act prohibits the court from approving an arrangement which is not for the benefit of the classes referred to in (a), (b) or (c). The approval of this arrangement is not prevented by that proviso, since it is plainly the case that it is greatly for the benefit of the class specified in section 1(1)(c)(3). The judge erred when he allowed extrinsic evidence of the subjective wishes of Mrs Froud as regards her daughter, son-in-law and grandson to outweigh considerations of objective and substantial benefit to the class on whose behalf the court is empowered to act. If the Judge had adopted the correct approach to the exercise of his discretion, he could only have come to the conclusion that the intentions and wishes of Mrs Froud, expressed externally to her will in relation to the adult beneficiaries and an adult non-beneficiary, had little, if any, relevance or weight to the issue of approval on behalf of the future unborn great grandchildren, whose interest in residue was multiplied five-fold under the proposed arrangement.

Judges:

Mummery LJ

Citations:

Times 07-Feb-1997, [1996] EWCA Civ 1156, [1997] 2 All ER 239

Links:

Bailii

Statutes:

Variation of Trusts Act 1958 1

Jurisdiction:

England and Wales

Citing:

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 – Holmden’s Settlement Trusts, Re Holmden’s Settlement, Re HL 13-Dec-1967
Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: ‘Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The . .
Cited – In re Steed CA 26-Jan-1960
The court considered an application under the 1968 Act to vary a trust. The testator had shown in the terms of his will a particular purpose in creating a protective trust; that was to protect the life tenant from improvident dealings with property . .
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Spens v Inland Revenue Commissioners ChD 1970
The court declared the exercise of a power of appointment to create a sub-trust void under the rule against perpetuities. . .
Cited – In Re Remnant ChD 1970
Approval was sought of a proposed deed varying trusts created in the will.
Held: The testator’s intention would be defeated by the proposed arrangement which involved the deletion of the forfeiture provision dependant upon the beneficiary’s . .
Cited – Chapman v Chapman HL 25-Mar-1954
It was suggested to the House that: ‘A judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction, in the execution of the trusts of a settlement, to sanction, on behalf of infant beneficiaries and unborn persons, a . .
Cited – In Re Holt’s Settlement ChD 1969
An application was made to vary the terms of a trust in favour of children.
Held: The court was ready to receive evidence from a mother whose children were due to become entitled to funds at the age of 21 that she believed it most important . .
Cited – Re Ball’s Settlement Trusts ChD 1968
The curt was asked whether a resettlement of part of a trust fund on a new trust could be a variation which the court could approve under the 1958 Act.
Held: A variation under the Act must not be such as to change the fundamentals of the . .
Cited – Re Burney’s Settlement Trusts ChD 1961
The court approved a proposed variation of a trust. . .
Cited – Re Van Gruisen’s Will Trusts ChD 1964
The court considered the extent of its discretion to vary the provisions of a trust.
Held: The Court should ask whether, if the persons on whose behalf consent is to be given were themselves competent and reasonable, the bargain is one that . .
Cited – Re Weston’s Settlement Trusts CA 1968
The settlor applied for the approval of an arrangement for the export of his trust to Jersey, where he had gone to live. The court considered its powers under the 1968 Act.
Held: The court should not consider merely the financial benefit to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 November 2022; Ref: scu.80948

Wharton v Bancroft and Others: ChD 30 Jan 2012

The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.
(b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, 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 over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
(e) But proof of the reading over of a will does not necessarily establish ‘knowledge and approval’. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.’

Judges:

Norris J

Citations:

[2012] EWHC 91 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Schrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 03 November 2022; Ref: scu.450561

Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others: CA 11 Mar 2005

The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed the interpretation to be wrong and sought advantage from that interpretation on counsel’s advice. Negligence was alleged in having paid an excess sum in respect of a life interest, and in the incurring of unnecessary costs. Negligence was found in several respects.
Held: The amount paid by the executors to achieve the variation, though more than was a approriate in actuarial terms, had been the amount needed in order to achieve the Court of Protection order, and was justifiable accordingly. Appeal allowed in part.

Citations:

[2005] EWCA Civ 248

Links:

Bailii

Statutes:

Inheritance Tax Act 1984 142(1), Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

See Also – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Appeal from – Jemma Trust Company Limited v Kippax Beaumont Lewis and others ChD 1-Apr-2004
. .
Cited – In re DML ChD 1965
The Court considered provisions in Section 102 of the Mental Health Act 1959. This section empowered the judge to secure (the doing of all such things as appear necessary . . ) ‘(b) for the maintenance or other benefit of members of the patient’s . .
Cited – In re W (EEM) 1971
It would be for the ‘benefit’ of the patient to exercise the powers conferred by section 95(1) of the 1983 Act so as to enable there to be done something which the patient would have wished to do if he had been able to act for himself. . .
Cited – Re King’s Will Trusts, Assheton v Boyne ChD 1964
An assent by personal representatives is ‘the instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject-matter of the disposition to the person entitled to it’, and must be in writing even . .
Cited – Inland Revenue Commissioners v Hawley 1928
When a legatee of shares received them more than a year after the death, he was not treated as receiving all the accrued dividends as income of the year in which the shares became vested in him, but rather, by relation back to the death, in the year . .

Cited by:

See Also – Jemma Trust Company Ltd v Kippax Beaumont Lewis and others CA 22-Nov-2004
The defendants asserted that they had executed a trust deed on the advice of senior counsel in conference. The judge said the notes of the meeting did not justify that conclusion. The firm sought permission to appeal.
Held: There was room for . .
See Also – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Wills and Probate

Updated: 31 October 2022; Ref: scu.223377