Category: Wills and Probate

Al Abood v Tayeb: ChD 27 Jul 2005

The claimant sought an order in the administration of her late husband’s estate. The deceased had been an Iraqi with substantial internationally held assets.
Held: ‘The claim in respect of payments made or in course of payment to accounts in the name of or for the benefit of the Shake Trust at Lloyds TSB Bank plc is hopeless because the Testator’s estate had no interest in the monies in question. The only person interested and entitled to an account was and is the Shake Trust, a distinct legal entity. When I raised this point, Miss Dohmann readily and responsibly agreed that this was so and abandoned the claim. Turning to the claim in respect of the TRT Contract, it is clear (even as it is common ground) that if any commission was paid pursuant to the TRT Contract to the Carat or Karat account or elsewhere, the Defendant would be under an obligation to account for that payment. But the Defendant has denied under oath that he has any as yet undisclosed relevant documents and that any such payment was ever made, and Miss Dohmann has fairly and properly conceded that the Claimant has no evidence that any payment was made. ‘ The appeal failed.

Judges:

Lightman J

Citations:

[2005] EWHC 1687 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1985 50

Jurisdiction:

England and Wales

Wills and Probate

Updated: 01 July 2022; Ref: scu.229035

John Joseph Dillon, Esq v Sir William Parker, Bart: PC 1833

A party claiming under an instrument, raising, as he contends, a case of election in equity against a party in possession under a legal right, must make out a clear and satisfactory case to entitle him to displace the legal right.
Where, under the will of a son, giving benefits to his father, but of doubtful construction, there was no evidence that the father understood that a case of election was raised by the will, or that in fact he elected to take under it, and to give up estates disposed of by the will, to which he was entitled under a marriage settlement; and where it was in evidence that the father did acts in opposition to the will of the son ; and where, by his own will, he so disposed of the estates, that his daughters might either claim life estates under that will, or estates in fee under the will of the son ; and it was in evidence that they by letters declared and executed deeds, reciting that they took as tenants for life under the will of their father ; and especially where the equity, if any, arose forty – three years before the suit, and the daughters had then the opportunity to call on the father to elect and failed to do so : Held, that it was doubtful whether a case of election existed, and that a party claiming under the daughters as heir could not assert such right after such lapse of time in a court of equity.
Where possession is referrible to either of two inconsistent rights, the acts of a party bound to elect, in order to constitute election, must imply a knowledge of the rights, and an intention to elect.

Citations:

[1833] EngR 137, (1833) 7 Bligh NS PC 325, (1833) 5 ER 796

Links:

Commonlii

Jurisdiction:

England and Wales

Equity, Wills and Probate

Updated: 30 June 2022; Ref: scu.318131

Wilkes v Wilkes: ChD 8 Jun 2000

The claimant sought revocation of a grant of probate saying that the deceased had not had capacity and or had acted under the undue influence of one of the executors.

Citations:

[2000] EWHC 1562 (Ch), [2006] WTLR 1097

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 30 June 2022; Ref: scu.329578

Harrison v Gibson: ChD 21 Dec 2005

The husband owned the family home. In a home-made will, he left it ‘in trust for’ his wife. She died leaving differing proportions to each child. On her death the children sought a declaration from the court as to their respective interests.
Held: The gift was left in trust for the wife under a life interest only, and the children now took equal shares from the father’s estate. The words ‘in trust’ did not of themselves create only a life interest: ‘The mere fact that the testator has used the words ‘in trust’ is not in itself inconsistent with an intention on his part that his wife should be the absolute beneficial owner.’ S22 applied where there was some ambiguity. Here there was additional evidence, not part of the will, that the testator envisaged the possible sale of the house. That evidence could be listened to. This suggested a life interest. It was not helpful to try to define what degree of clarity might be required of any contrary intention to be shown under s22. Parliament intended only that if there had been an absoute gift, it should not be reduced by later unclear words.

Judges:

Hart J

Citations:

Times 25-Jan-2006, [2006] 1 WLR 1212

Statutes:

Administration of Estates Act 1925 22

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbs v Harding and others ChD 12-Jan-2007
The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 June 2022; Ref: scu.238877

Fletcher v Fletcher: ChD 25 Jul 1844

The son of the deceased sought payment under a deed executed by the testator but not disclosed to his trustees who now refused to act upon it, saying it was a voluntary deed.
Held: The debt must be paid: ‘The rule against relief to volunteers cannot, I conceive, in a case like that before me, be stated higher than this, that a Court of Equity will not, in favour of a volunteer, give to a deed any effect beyond what the law will give to it. But if the author of the deed has subjected himself to a liability at law, and the legal liability comes regularly to be enforced in equity, as in the cases before referred to, the observation that the claimant is a volunteer is of no value in favour of those who represent the author of the deed. ‘ and ‘ Its being executory makes no difference, whether the party seeks to recover at law in the name of the trustee, or against the assets in this Court.’

Citations:

[1844] EWHC Ch J69, (1844) 4 Hare 67, 67 ER 564

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Equity

Updated: 30 June 2022; Ref: scu.245423

Re Grant’s Will Trusts: ChD 1980

The deceased left property to the Labour Party property committee.
Held: A trust created by making a gift to the members of an unincorporated assoication as at the date of the gift can be wound up only if under the rules, the members could, at any time, resolve to terminate the trust and distribute the fund to themselves. The gift therefore failed. It could not be construed as a gift to existing members (i.e. it did not fall within category (1) of Neville Estates Ltd v Madden), and that in order to fall within category (2) it was essential that the members of the association for the time being should be free to dispose of it in any way they thought fit, including distributing it amongst themselves.

Judges:

Vinelott J

Citations:

[1980] 1 WLR 360

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Trusts, Wills and Probate

Updated: 30 June 2022; Ref: scu.245260

Re Lipinski’s Will Trusts: ChD 1976

Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest was valid.
Held: Whether a gift was treated as a purpose trust or an absolute gift to a unincorporated non-charitable body with a superadded direction, the gift was valid if the beneficiaries were ascertainable; that the specified purpose of the gift to the Hull Judeans was within the power of that association and its members were the ascertained or ascertainable beneficiaries, and were therefore the persons who were entitled to enforce that purpose, or notwithstanding the use of ‘solely’, to vary that purpose. The association was not a charity.
Oliver J: ‘If the gift were to the association simpliciter, it would, I think, clearly fall within the second category of Cross J.’s categories. At first sight, however, there appears to be a difficulty in arguing that the gift is to members of the association subject to their contractual rights inter se when there is a specific direction or limitation sought to be imposed upon those contractual rights as to the manner in which the subject matter of the gift is to be dealt with . . .
There would seem to me to be, as a matter of common sense, a clear distinction between the case where a purpose is prescribed which is clearly intended for the benefit of ascertained or ascertainable beneficiaries, particularly where those beneficiaries have the power to make the capital their own, and the case where no beneficiary at all is intended (for instance, a memorial to a favourite pet) or where the beneficiaries are unascertainable . . If a valid gift may be made to an unincorporated body as a simple accretion to the funds which are the subject matter of the contract which the members have made inter se – and Neville Estates Ltd. v. Madden [1962] Ch. 832 and In re Recher’s Will Trusts [1972] Ch. 526 show that it may – I do not really see why such a gift, which specifies a purpose which is within the powers of the association and of which the members of the association are the beneficiaries, should fail. Why are not the beneficiaries able to enforce the trust or, indeed, in the exercise of their contractual rights, to terminate the trust for their own benefit? Where the donee association is itself the beneficiary of the prescribed purpose, there seems to me to be the strongest argument in common sense for saying that the gift should be construed as an absolute one within the second category – the more so where, if the purpose is carried out, the members can by appropriate action vest the resulting property in themselves, for here the trustees and the beneficiaries are the same persons.
Directly in point is the more recent decision of Goff J. in Re Denley’s Trust Deed [1969] 1 Ch. 373 . . Goff J held that the rule against enforceability of non-charitable ‘purpose or object’ trusts was confined to those which were abstract or impersonal in nature where there was no beneficiary or cestui que trust. A trust which, though expressed as a purpose, was directly or indirectly for the benefit of an individual or individuals was valid provided that those individuals were ascertainable at any one time and the trust was not otherwise void for uncertainty . . . I respectfully adopt this, as it seems to me to accord both with authority and common sense.’ and ‘This is a case in which, under the constitution of the association, the members could, by the appropriate majority, alter their constitution so as to provide, if they wished, for the division of the association’s assets among themselves. This has, I think, a significance.’ Finally: ‘. . . whether one treats the gift as a ‘purpose’ trust or as an absolute gift with a superadded direction . . all roads lead to the same conclusion.’

Judges:

Oliver J

Citations:

[1976] Ch 235

Jurisdiction:

England and Wales

Citing:

Cited – Leahy v Attorney-General of New South Wales PC 20-Apr-1959
leahy_agnswPC1959-4
A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the . .
Cited – Neville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Cited by:

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

Wills and Probate, Trusts

Updated: 30 June 2022; Ref: scu.245267

Ilott v Mitson and Others: FD 3 Mar 2014

The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her pounds 50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had been estranged from her mother for many years.
Held: The appeal by the charities failed.

Judges:

Parker J

Citations:

[2015] 1 FLR 291, [2014] EWHC 542 (Fam)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

See Also – 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 by:

Appeal From – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
At First Instance – 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: 30 June 2022; Ref: scu.521976

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 rejected her claim.
Held: The appeal by the charities succeeded. The District Judge had not made the two errors suggested by the Court of Appeal: ‘The Act requires a single assessment by the judge of what reasonable financial provision should be made in all the circumstances of the case. It does not require the judge to fix some hypothetical standard of reasonable provision and then either add to it, or discount from it, by percentage points or otherwise, for variable factors. To the contrary, the section 3 factors, which are themselves all variables and which are likely often to be in tension one with another, are all to be considered so far as they are relevant, and in the light of them a single assessment of reasonable financial provision is to be made. There is no warrant in the Act for requiring a process of the kind suggested by the Court of Appeal. If the judge were to arrive at a figure for reasonable financial provision without one or more of the relevant facts in the case, he would not be undertaking the assessment required by the Act.’
The second alleged error was a suggested failure by the DJ to allow for the effect of the order on the state benefits received by the claimant. In fact the judge, though he may have: ‘interpreted the statutory requirement for the award to be for maintenance as pointing to such an approach, these items which Mrs Ilott needed to make the household function properly can perfectly sensibly fit within the concept of maintenance. The Court of Appeal rightly said that the 1975 Act is not designed to provide for a claimant to be gifted a ‘spending spree’. But this kind of necessary replacement of essential household items is not such an indulgence; rather it is the maintenance of daily living. Moreover, how the claimant might use the award of pounds 50,000 was of course up to her, but if a substantial part of it were spent in this way, the impact on the family’s benefits would be minimised, because she could put the household onto a much sounder footing without for long retaining capital beyond the 16,000 pounds ceiling at which entitlement to Housing and Council Tax Benefits is lost.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes

Citations:

[2017] UKSC 17, [2017] WLR(D) 185, UKSC 2015/0203

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Inheritance (Family Provision) Act 1938

Jurisdiction:

England and Wales

Citing:

Appeal from – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
At First Instance – Ilott v Mitson and Others FD 3-Mar-2014
The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her pounds 50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
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 – 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 – 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 – 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 . .
First Appeal – 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 – Hyman v Hyman HL 1929
The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant . .
Cited – In re E, deceased 1966
Possible receipt by a family member in receipt of state support greater than the testator could sensibly provide may be an understandable reason why it was reasonable for the deceased not to make financial provision for that family member. The . .
Cited – Gurasz v Gurasz CA 1970
Lord Denning MR described ‘the husband’s duty to provide his wife with a roof over her head’ as ‘elemental in our society’ . .
Cited – Lord Lilford v Glyn CA 1979
The judge had ordered the father to make money settlements on his daughters which had no relation to accommodation or their need during minority.
Held: The judge had gone quite ouside the jurisdiction of the Act, and the appeal succeeded. . .
Cited – Cameron v Treasury Solicitor 1996
The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between . .
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 – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
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 . .
Cited – Myers v Myers and Orhers FD 3-Aug-2004
The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of . .
Cited – Hope and Another v Knight ChD 15-Dec-2010
The separated widow and the deceased’s daughter sought reasonable provision from the estate. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Benefits

Leading Case

Updated: 30 June 2022; Ref: scu.580731

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 the charities (beneficiaries under the will) said that no payment should have been ordered at all.
Held: The claimant’s appeal succeeded, and the matter remitted for reconsideration as to quantum. The value judgment of a trial judge, who has undertaken the section 3 exercise and has reached a judgment on the evidence should not be lightly disturbed unless the conclusion reached is ‘plainly wrong’. The district judge here had asked himself the correct question, and it had been wrong to find that he had erred in law.
Arden LJ said: ‘The totemic phrase in section 2(1) of the 1975 Act is ‘reasonable financial provision’. This phrase has a constant meaning, but its application in any individual case must take account of the circumstances of the case and current social conditions and values. There were three notable value judgments by the District Judge in this case. In the first of these, the District Judge held in a passage already cited that the applicant was entitled to make her life with a partner of her choice and to have a family of her own. In the second of these, the District Judge held that it was reasonable for her to wish to remain at home for the time being rather than work (outside the home). In the third of these the District Judge held that families, such as those of the applicant and her husband, ‘were not all to be blamed for their lack of income which makes a claim for tax credits necessary and possible.’ These were evaluations for the District Judge to make in the circumstances of this case. In my judgment the conclusions of the District Judge cannot be said to be plainly wrong.
Indeed, these three value judgments made by the District Judge demonstrate how under the 1975 Act the court must make value judgments in order to arrive at a decision as to whether the provision made by a testatrix constituted reasonable financial provision. I am not concerned that a judge should be called on to make such judgments. It is a reality in the twenty-first century that judges are called upon to make judgments of this kind in different cases and in different circumstances. They must do so with such assistance as they can find in existing decided cases. If (as often happens) there are no decided cases, they must decide questions involving value judgments within four corners of the statutory framework and with the benefit of their own awareness and experience of society and social issues, and their own considered view of how such matters ought fairly to be decided in the society in which we live. It is worthy of note that there was no other way that the District Judge could have made the three value judgments discussed in this paragraph. Judges are not unaccountable for value judgments. Those value judgments can be reviewed on appeal . .’
Black LJ said: ‘A dispassionate study of each of the matters set out in section 3(1) will not provide the answer to the question whether the will makes reasonable financial provision for the applicant, no matter how thorough and careful it is. . . [S]ection 3 provides no guidance about the relative importance to be attached to each of the relevant criteria. So between the dispassionate study and the answer to the first question lies the value judgment to which the authorities have referred. It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts.’

Judges:

Sir Nicholas Wall P, Arden, Black LJJ

Citations:

[2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2(1) 3

Jurisdiction:

England and Wales

Citing:

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 . .
Appeal from – H v Mitson and Others FD 1-Dec-2009
. .
Cited – Re Gregory (Deceased), Gregory v Goodenough CA 1970
Fenton Atkinson LJ sought to discourage appeals in cases involvimg small estates. . .
Cited – Cameron v Treasury Solicitor 1996
The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between . .
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 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 – 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 – Re Pearce (Deceased) CA 4-Nov-1998
An adult child succeeded in a claim under the Act against his father’s estate, having worked on his fathers farm for many years and for very low pay against a promise that he would inherit the house on the father’s death. . .
Cited – Espinosa v Bourke CA 1999
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
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 . .

Cited by:

See Also – Ilott v Mitson and Others FD 3-Mar-2014
The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her pounds 50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
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 . .
See Also – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
First Appeal – 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: 30 June 2022; Ref: scu.431607

Daliah Dorit Sherrington and others v Sherrington: CA 22 Mar 2005

Citations:

[2005] EWCA Civ 410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 by:

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 . .
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.

Wills and Probate, Costs

Updated: 29 June 2022; Ref: scu.224512

Dowager Duchess of Montrose and Others v Stirling Stuart: HL 15 Nov 1887

Warrandice – Heir and Executor – Catholic Security
By a trust-disposition and settlement, executed in 1853, the granter conveyed his whole estate, heritable and moveable, to trustees, for the purpose, inter alia, failing heirs of his body, of conveying his estate of M, and his other lands in the county of L, to his brother, and the heirs of his body, under the fetters of an entail. By the same deed he directed his trustees, failing his own issue, to make over the whole residue of his estate to the person who should succeed to M.
By a codicil, dated in 1876, he disponed to his wife, in the event of her surviving him, the lands of B and A (which were among the lands originally directed to be entailed), and bequeathed to her the whole residue of his estate. By a previous deed he had appointed his wife his sole executrix. The disposition of B and A contained a clause of warrandice in ordinary form under the Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101), which imports absolute warrandice. In 1882 the truster granted a bond and disposition in security for pounds 250,000 over the estates of M, B, and A.
On the truster’s death his widow maintained that no part of the debt of pounds 250,000 was payable out of B and A, or out of residue, but that the whole debt was entirely chargeable against M.
Held ( affirming the judgment of the Second Division) that the truster had in imposing the obligation of warrandice used words limited in their significance to personal obligation, and that his widow, as personal representative and executrix, must herself discharge the obligation of warrandice.

Judges:

The Lord Chancellor (Halsbury), Lord Watson, and Lord Macnaghten

Citations:

[1887] UKHL 454, 25 SLR 454

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 29 June 2022; Ref: scu.636757

Bolton v Powell, Howard v Earle: 11 Mar 1852

An administrator of an intestate died in 1817 indebted to a large amount in respect of his receipts as administrator, but leaving sufficient personal estate to pay this amount, and also leaving freehold estates. In the same year a suit was instituted for the administration of his personal estate, and in 1832, it appeared from the report in that suit, that his personal estate had been misapplied, and that his executor had become bankrupt. Thereupon, and in the same year (1832), an administratrix de bonis non of the intestate instituted a suit against the administrator’s heir and the sureties, in the usual administration bond, and against the representatives of the Archbishop (who had died), praying to have the benefit of the bond, and to charge by means of the administrator’s freehold estates. No decree was made in this suit, the Plaintiff having married in 1838, and having died in 1847, without the suit having ever been revived. In 1848 another of the next of kin, who had been a Defendant to the suit of 1833, took out administration de bonis non of the intestate, and filed a bill of revivor and supplement, claiming to have the benefit of the suit of 1832. Held, that the suit of 1833 must be considered as having been abandoned, and that the suit of 1848 must be considered an original suit, and as such barred by length of time and laches.

Citations:

[1852] EngR 352, (1852) 2 De G M and G 1, (1852) 42 ER 771

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 29 June 2022; Ref: scu.295475

Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others: ChD 27 Jul 2005

The testator suffered advanced multiple sclerosis. Daughters excluded from benefit in the will challenged his capacity to have made the will.
Held: Though ‘He was able to understand the nature of the fact of making a will, he knew the identity of the persons on whom he should confer his benefits, he probably understood sufficiently the nature and extent of his property . . and he understood the effects of the will he made. What he lacked however was the capacity to arrive at a rational judgment taking into account all the circumstances, and in my judgment it is likely that there was a temporary poisoning of his natural affection for his daughters, or a perversion of his sense of right, the nature of which nobody can satisfactorily explain.’ The testator did not have the capacity required and the will was not effectively made.

Judges:

Mr Nicholas Strauss QC

Citations:

[2005] EWHC 1086 (Ch)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 June 2022; Ref: scu.242126

Green and others v Gaul and Another; In re Loftus deceased: ChD 18 Mar 2005

The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal representative began to run only after one year, the executor’s year, after the grant. No right of action arose until the executor became under a duty to distribute.
‘As regards the application for removal under Administration of Justice Act 1985, section 50, it is a matter for the discretion of the court, and that it is reasonable for the court to take a pragmatic approach, to consider the views of the beneficiaries and the interests of the estate as a whole.’
The family members disputed whether there had been a compromise of a dispute over the assets in their father’s estate.

Judges:

Lawrence Collins J

Citations:

[2005] 2 All ER 700, Times 28-Mar-2005, [2005] EWHC 406 (Ch), [2005] 1 WLR 1890

Links:

Bailii

Statutes:

Real Property Limitation Act 1860 13, Limitation Act 1980 21(3), Administration of Justice Act 1985 50

Jurisdiction:

England and Wales

Citing:

Cited – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
Distingusihed – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Applied – In Re Johnson, Sly v Blake 1855
The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: . .
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Cited – Ministry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
Cited – Re Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .
Cited – Nelson v Rye and Another ChD 5-Dec-1995
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . .
Cited – Evans v Westcombe; re Evans ChD 10-Mar-1999
Where available, missing beneficiary insurance was the preferred way of dealing with the problem, rather than applications to the court for Benjamin or other similar orders. Insurance should be cheaper and more certain for the personal . .
Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Cited – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .

Cited by:

Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation

Updated: 29 June 2022; Ref: scu.223691

Couwenbergh v Valkova: CA 28 Jan 2005

The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met the third criteria in Ladd v Marshall, and should be admitted for testing. Rather than requiring the claimant to begin a new action, the court would remit the matter for a rehearing which would allow justice also to be done as to the costs of the first hearing.

Judges:

Ward, Dyson, Jacob LJJ

Citations:

[2005] EWCA 145 Civ

Links:

Bailii

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 – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – Sohal v Sohal CA 30-Jul-2002
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
See Also – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .

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. . .
See Also – Couwenbergh v Valkova ChD 16-Oct-2008
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 June 2022; Ref: scu.222935

In re D (J): ChD 1982

The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a will should not be executed pending an appeal was wrong in principle. The court laid down the principles upon which it should act. A letter of offer was taken into account on the question of costs.

Judges:

Sir Robert Megarry VC

Citations:

[1982] 2 WLR 373, [1982] 2 All ER 37, [1982] Ch 237

Statutes:

Mental Health Act 1959 100(4) 102(1) 103(1)(dd)

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 . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 28 June 2022; Ref: scu.194469

Campbell v Wardlaw and Others (Campbell’s Trustees): HL 6 Jul 1883

Succession – Fee and Liferent – Liferent of Whole Amount Produced – Mineral Field opened after Testator’s Death
A testator who had opened up and wrought part of the minerals in his lands during his life, directed his trustees in the event (which happened) of his wife surviving him, to payover to her ‘the whole annual produce and rents of the residue and remainder of my estate, heritable and moveable, during all the days and years of her life.’ After the testator’s death his trustees opened a new mineral field. Held ( affirming judgment of the First Division) that the testator’s widow was not entitled to the rents derived from this mineral field.
This section gives trustees, where such act is not at variance with the terms or purposes of the trust, power to grant mineral leases of a duration not exceeding thirty-one years.
Observed ( per Lord Watson) that this provision merely gives power to trustees entitled under their trust to let minerals, to let them for the period allowed by the statute, and confers no new power of letting minerals upon trustees.

Judges:

Lords Blackburn, Watson, Bramwell, and Fitzgerald

Citations:

[1883] UKHL 748, 20 SLR 748

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate, Land

Updated: 28 June 2022; Ref: scu.636764

Poe v Paterson: HL 16 Jul 1883

Succession – Husband and Wife – Husband’s Right to Succeed to Wife’s Moveable Estate – Married Women’s Property (Scotland) Act 1881 (44 and 45 Vict. c. 21), secs. 3 and 6.
Held ( aff. judgment of First Division) that sec. 6 of the Married Women’s Property (Scotland) Act 1881, which gives to a husband of a woman dying domiciled in Scotland the same share and interest in her moveable estate as is taken by a widow in her husband’s moveable estate, is applicable to all marriages, whether contracted before or after the passing of the Act.

Judges:

Lords Blackburn, Watson, and Fitzgerald

Citations:

[1883] UKHL 48, 21 SLR 48

Links:

Bailii

Statutes:

Married Women’s Property (Scotland) Act 1881 6

Jurisdiction:

Scotland

Family, Wills and Probate

Updated: 28 June 2022; Ref: scu.636767

Muirhead and Others v Muir-Head and Others: HL 12 May 1890

Succession – Will – Construction – Widow Renouncing Provisions – Acceleration of Provisions to Children – Period of Vesting.
A truster directed his trustees to pay to his wife if she survived him an annuity, and to give her the liferent of a house, and ‘to draw the revenue of all my estate not above disposed of during the life of my said wife, and to accumulate the revenue, after paying my wife’s said annuity, with the principal.’ He then provided that ‘as soon after the death of my said wife as convenient’ certain heritable subjects should be conveyed to three of his children, and that the residue should be divided equally among his children, declaring that if any of them should predecease the term of payment without leaving issue, their provisions should lapse and become part of the residue, unless the predeceasing child left issue, in which case such issue should succeed to the parent’s share. The widow repudiated her testamentary provisions and obtained her legal rights.
Held, on a construction of the deed (rev. judgment of the Second Division), that the provisions to the children of the specific heritable subjects and residue would not vest until the death of the testator’s widow.

Citations:

[1890] UKHL 917

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 28 June 2022; Ref: scu.636734

In the Goods of Wilson, Wilson v Coleclough: ChD 1952

The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April he made a nuncupative will.
Held: The court upheld the will. Havers J said that it had been made ‘in contemplation of sailing on that ship on that particular voyage, and . . he was preparing for that voyage.’

Judges:

Havers J

Citations:

[1952] P 92

Jurisdiction:

England and Wales

Cited by:

Cited – Re Rapley, deceased ChD 1983
The deceased was an apprentice with Ellerman City Lines. He was discharged from one ship on 7 October 1960 and joined another of his employer’s ships on 29 November. He attempted to make a privileged will on 22 October when, as was common ground at . .
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: 28 June 2022; Ref: scu.375935

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 process, no evidence that the deceased prepared the will himself or gave instructions for its preparation, no evidence that the deceased read the will or had it read to him before or after it had been made or that he retained a copy or, apart from what can be inferred from the evidence that he told one legatee of what he intended to do by his Will (and that was partly inaccurate), that he knew about its terms. The propounder did not give evidence. The will was challenged.
Held: Knowledge and approval could be inferred in all the circumstances, namely that the Will and other documents executed at the same time were duly executed, that there was reference during the signing ceremony to the fact that the purpose of the attendance of the witnesses was to witness the deceased’s signature of his Will, and that the deceased covered up some of the documents. That evidence showed that the deceased was not deceived as to the nature of the document he was signing and that he had at least had the opportunity of seeing the documents before they were covered up. The provisions of the Will were neither complex nor difficult to grasp: ‘So long as he read the document he would have had no difficulty in taking in its provisions, even if someone else had prepared it.’ Apart from the gift of residue to the propounder there was not much in the will to provoke suspicion in itself as being different from what one might expect the deceased to do. The evidence showed the deceased to have been alert and not likely to allow himself to be persuaded to do what he did not want to do. On that evidence the Will was admitted to probate.

Judges:

Lloyd J

Citations:

Unreported, 6 July 2000

Jurisdiction:

England and Wales

Cited by:

Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 June 2022; Ref: scu.223798

Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm): ChD 25 May 2000

The testatrix had executed her will, but it was left undated pending preparation and execution of a second deed. The will failed, and her executors sought damages from her solicitors for negligence.

Judges:

Eady J

Citations:

[2000] Lloyds Rep PN 805

Jurisdiction:

England and Wales

Cited by:

Appeal from – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 27 June 2022; Ref: scu.223528

Birch v Curtis: ChD 2002

The court held in favour of a mutual will made by the deceased husband with his second wife, to the detriment of the children of the husband’s previous wife, so disinheriting those children from their mother’s assets and indeed the husband’s own children from his first marriage.

Judges:

Rimer J

Citations:

[2002] 2 FLR 847

Jurisdiction:

England and Wales

Cited by:

Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 June 2022; Ref: scu.229844

Scott and others v Honeyman-Scott: CA 17 Dec 2001

Renewed application for permission to appeal against an order in so far as that order provided that the administrator of the estate of the late James Honeyman-Scott should make no further payments to the defendant, Peggy Sue Honeyman-Scott, in respect of her half share of the residuary estate until the sum of andpound;372,184 and the order for costs made against her were paid in full.

Citations:

[2001] EWCA Civ 2087

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 June 2022; Ref: scu.218662

Chappell v Somers and Blake (a Firm): ChD 8 Jul 2003

The will gave the deceased’s property to the local church. The claimant executrix instructed the defendants to administer the estate, but later terminated the retainer saying that they had done nothing for many years, depriving the estate of rents.
Held: Even though the claimant had no personal interest in the estate, she should be allowed to claim. Legal principle justified a conclusion which was consistent with the policy consideration. The loss occurred whilst the properties were vested in the administratrix, and she would be accountable to the parochial church council for the income lost. She therefore had a proper claim. The necessary policy point was to ensure that no double recovery arose, since the church could itself sue.

Judges:

Neuberger J

Citations:

Times 02-Sep-2003, [2003] EWHC 1644 (Ch)

Jurisdiction:

England and Wales

Citing:

Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 27 June 2022; Ref: scu.186098

Nathan v Leonard and Others: ChD 28 May 2002

The testator added a codicil to her will providing that a gift to a beneficiary would be avoided if the will was challenged. She contested the clause saying it was against public policy insofar as it sought to discourage use of the Act.
Held: Though a condition which might lead to forfeiting a benefit under a will might have a strong deterrent effect, that was not enough to make the condition void under public policy. If a claim was made under the Act, the court could then look at the resulting situation and decide whether that constituted adequate provision as required.

Judges:

Mr John Martin, QC

Citations:

Times 04-Jun-2002, Gazette 11-Jul-2002, [2003] 1 WLR 827

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 June 2022; Ref: scu.172218

Mackie v Herbertson and Others (Gloag’s Trustees): HL 6 Mar 1884

A widow having children by her first marriage entered into a second, in contemplation of which she, by antenuptial contract with the second husband, conveyed to trustees her property, heritable and moveable, for behoof of herself in liferent only, excluding the jus mariti, and for behoof of the children ‘procreated or to be procreated’ of her body in fee, in such proportions as she might appoint, or failing such appointment equally. The trustees were infeft in the heritable property thus conveyed, and they entered into management of the estate. There were no children of the second marriage, and the wife died leaving a settlement by which she affected to exercise the power of appointment and deal with her whole property. By this settlement she left only a small legacy, payable, in the discretion of her trustees, to one of the children of the first marriage. Held ( rev. judgment of Second Division) that the marriage-contract conferred upon the children of the first marriage a jus crediti, and was not quoad them a merely testamentary provision, and therefore that their mother could not by her settlement defeat this child’s claims under it.

Judges:

Lord Chancellor, Lord Watson, and Lord Fitzgerald

Citations:

[1884] UKHL 465, 21 SLR 465

Links:

Bailii

Jurisdiction:

Scotland

Family, Trusts, Wills and Probate

Updated: 27 June 2022; Ref: scu.636744

Parks v Clout: CA 22 Oct 2002

Application for leave to make second appeal. Brother of deceased alleging that the widower had obtained probate by falsely representing that no will had been made by the deceased.
Held: Insofar as the judge had based his conclusion on an incorrect assertion that circumstantial evidence could not be used at all to base a conclusion as to whether a will had been executed, the appeal had to be allowed to go ahead.

Judges:

Jonathan-Parker LJ

Citations:

[2002] EWCA Civ 1565

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

Wills and Probate, Evidence

Updated: 27 June 2022; Ref: scu.217724

Hurst v Crampton Bros (Coopers) Ltd and others: CA 9 Aug 2002

Adjourned application for permission to appeal

Judges:

Chadwick LJ

Citations:

[2002] EWCA Civ 1384

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .

Cited by:

See Also – Pennington and others v Crampton and others CA 17-Jun-2004
Application for permission to appeal against proposal of Tomlin Order . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Company

Updated: 27 June 2022; Ref: scu.217528

Oakes and Another v East Kent Hospitals NHS Trust: ChD 28 Oct 2015

The Appellants sought to appeal an order made declaring (1) that the Respondent has lawful possession of the body of Appellants’ deceased daughter, and (2) that the Respondent is entitled to make arrangements for the funeral and disposal of the Deceased by burial or cremation (at the Appellants’ choice), and making further directions in that regard.
Held: Leave granted, but appeal denied

Judges:

Hildyard j

Citations:

[2015] EWHC 3078 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 23 June 2022; Ref: scu.554300

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 adequate provision is made for the child out of the estate, having regard to his need for maintenance and support.

Citations:

[1938] AC 463, [1938] UKPC 16

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – 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: 21 June 2022; Ref: scu.214598

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 conclusion that an agreement to constitute equitable interest has been shown to have been made. As they have already said, the mere fact of making wills mutually is not, at least by the law of England, evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law.’

Judges:

Viscount Haldane

Citations:

[1928] AC 391, [1928] UKPC 56

Links:

Bailii

Jurisdiction:

Australia

Cited by:

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 – 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 – 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 – 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: 21 June 2022; Ref: scu.214597

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 adopted daughter propounded the will and claimed a declaration that M be deemed to have died within the testator’s lifetime.
Held: It was long recognised that a person who feloniously killed another could not take any benefit under the victim’s will. The question therefore arose whether M should be deemed to have died within the testator’s lifetime. He continued: ‘It was obvious that the testator failed to foresee the contingency that he might be murdered by [Marsden]. That, however, could hardly be said to be a contingency for which he might have been expected to provide. It did not constitute an omission from the will which the court would be justified in writing into it. The testator’s words were clear and precise. The gift to [the adopted daughter] could only be effective if [Marsden] had died in the testator’s lifetime. The declaration sought must therefore be refused.’ and the testator’s estate devolved as on his intestacy.

Judges:

Justice Karminski

Citations:

(1963) 107 Sol Jo 318

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 21 June 2022; Ref: scu.211375

Davitt v Titcumb: ChD 1989

The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used to pay off the mortgage, and the house sold. The issue was how to calculate any share he had in the proceeds.
Held: The fund would not have come into existence but for his criminal act. He was barred by public policy from benefiting under it. The equity of redemption in the policy enured to the personal representatives of the deceased., who were to be treated as having provided the proceeds of the policy for the calculation.

Judges:

Scott J

Citations:

[1990] Ch 110, [1989] 3 All ER 417

Jurisdiction:

England and Wales

Citing:

Applied – Cleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Re H deceased CA 1991
The Plaintiff had stabbed his wife to death when under the illusion, induced by a reaction to an anti-depressant drug, that she had just committed an act of infidelity. At his trial, a plea to guilty of manslaughter by reason of diminished . .
Lists of cited by and citing cases may be incomplete.

Insurance, Equity, Wills and Probate

Updated: 21 June 2022; Ref: scu.185183

Schumacher v Clarke: ChD 8 Apr 2019

The court was asked: ‘ first, whether the trial should be dealt with by a judge in the High Court at the level of the Chief Master; and secondly, whether the claim should be tried with witness evidence proved in accordance with the general rule contained in CPR 32.2(1). This general rule is subject to the provisions of CPR 32.2(2) and (3). In parenthesis I remark that, unlike Part 7 claims, Part 8 claims are not generally tried. They are normally dealt with at a disposal hearing, and the default provision is that witnesses are not called to give evidence.’

Judges:

Marsh CM

Citations:

[2019] EWHC 1031 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 21 June 2022; Ref: scu.636153

Davies v Davies: CA 12 Jun 1837

Residuary legatees filed a bill against the executor and the surviving partner of the testator for an account of partnership transactions.
Held: In the absence of a charge of fraud or collusion, there were no special circumstances justifying the legatees’ claim.

Judges:

Lord Langdale MR

Citations:

[1837] EngR 840, (1837) 2 Keen 534, (1837) 48 ER 733

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 21 June 2022; Ref: scu.313957

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.

Judges:

Peter Gibson LJ

Citations:

[2002] EWCA Civ 944

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Fuller v Strum ChD 20-Dec-2000
Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .
Cited – 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 – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – 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 – 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 – In the Estate of Austin 1929
A former solicitor, who had been struck off the Roll for professional misconduct, propounded a will under which he was named as an executor and the residuary legatee. The will which the former solicitor had prepared contained an unusual attestation . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 21 June 2022; Ref: scu.217276

Ghoolam Moortoozah Khan Bahadoor v The Government, Representing The Estate Of The Late Nabob Of The Carnatic: 15 Jun 1863

Citations:

[1863] EngR 706, (1863) 9 Moo Ind App 460, (1863) 19 ER 811

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Nabob of The Carnatic v The East India Company 1789
. .
See Also – Nabob of The Carnatic v The East India Company 2-Jan-1789
A political treaty, between sovereigns, or parties exercising sovereign authority cannot be the subject of a municipal jurisdiction. . .
See Also – Nabob of The Carnatic v East India Company 23-Jul-1791
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 June 2022; Ref: scu.283361

Golder v Golder: 31 Jul 1851

A creditors’ suit stayed, on the application of the executors, after a decree in a suit by residuary legatees for the administration of the same estate, notwithstanding there might be inquiries directed in the legatees’ suit, which would not have been necessary in the creditors’ suit; it being competent to the Master to make a separate report, and thereby prevent the payment of the creditors from being delayed by the business of the ultimate administration of the estate.

Citations:

[1851] EngR 753, (1851) 9 Hare 276, (1851) 68 ER 507

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 18 June 2022; Ref: scu.297069

Lows v Guthrie and Another (Low’s Trustees): HL 26 Mar 1909

Writ – Attestation – Denial by Attesting Witness that Signature was Adhibited or Acknowledged in his Presence.
Will – Reduction – Agent and Client – Undue Influence – Person in Fiduciary Relationship Preparing and Benefitting under Will – Onus.
Observations per Lord Dunedin and Lord Shaw, the point having been abandoned by counsel, to the effect that ‘it is not enough to set aside a probative deed in Scotland that one instrnmentary witness simply says that he did not hear the signature acknowledged.’
Observations upon the onus placed upon an agent or person in a fiduciary relationship who has prepared a will under which he benefits.

Judges:

Lord Chancellor (Loreburn), Lord Macnaghten, Lord James Of Hereford, Lord Dunedin, and Lord Shaw of Dunfermline

Citations:

[1909] UKHL 639

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 17 June 2022; Ref: scu.620572

Surjit Lal Chhabda v Commissioner of Income Tax: 1976

(Indian Supreme Court) The court defined the idea of coparceny: ‘A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females . . cannot be coparceners…’

Citations:

[1976] AIR 109

Jurisdiction:

England and Wales

Cited by:

Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 June 2022; Ref: scu.523688

In re Reynette-James dec’d, Wightman v: ChD 1976

A court does not have power to rectify a will.

Judges:

Templeman J

Citations:

[1976] 1 WLR 16, [1975] All ER 3 1037

Jurisdiction:

England and Wales

Cited by:

Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 June 2022; Ref: scu.536791

In Re the Estate of Phyllis Mary Bliss (Deceased): ChD 13 Apr 2001

The will provided that the executors should specify the price at which a beneficiary could exercise an option to purchase property in the estate. The will provided that the market value at the date of death should be used. The probate valuation was not appropriate, and it was wrong for the valuer to seek to amend his valuation to take account of an increase in property prices after the date of death. The valuation could only be governed by matters known to the valuer at the time of the valuation. Since the option was intended to be exercised immediately, the trustees did not have to allow for the costs of ongoing repairs, nor for money expended by the beneficiaries on the property.

Citations:

Times 13-Apr-2001, Gazette 07-Jun-2001

Jurisdiction:

England and Wales

Wills and Probate

Updated: 17 June 2022; Ref: scu.82242

In Re Yorke Deceased: ChD 3 Sep 1997

The plaintiffs were executors of the deceased, a ‘name’ at Lloyd’s from 1983 until his death in 1991. The estate was reinsured with Equitas for every possible Lloyd’s risk to which it would or might otherwise be liable. Having settled the debts and liabilities of the deceased, other than unascertained potential future liabilities arising from his position as a Lloyd’s name, the plaintiffs wished to complete their administration by distributing the residue. The plaintiffs wished to be sure, however, that distribution would not involve them in personal liability should creditors in respect of the deceased’s position as a Lloyd’s name emerge.
Held: Personal representatives of Lloyd’s names protected by Equitas were not under a general duty to distribute to beneficiaries without retention or further security and without first obtaining the sanction of the court. Nevertheless, balancing the injustice of beneficiaries being kept out of benefit on account of unascertained liabilities which might never come to anything against the risk of unknown contingent creditors who had paid for cover finding their matured debts unmet, the plaintiffs would be permitted to distribute to the beneficiaries without retention or further security beyond that provided by Equitas. On the evidence there was no reason to think that Equitas was likely to fail, in whole or in part. The Court gave complete protection to an executor distributing the estate despite a potential claim; no further retention for et hclaim was to be allowed.
Lindsay J said: ‘Although in considering the making of an order giving protection to executors the court would not look to create for a creditor some security which he had not stipulated for by his contract and would not act upon an attempt by a creditor in such a behalf (King v Malcott (1852) 9 Hare 692, 68 ER 691), the court would none the less, in making such orders, consider whether any and if so what indirect protection should be extended to creditors and including contingent creditors: Fletcher v Stevenson and Dean v Allen; see Re Nixon, Gray v Bell [1904] l Ch 638 at 694.
As for the forms of protection to be given to executors, they seem principally or exclusively to have consisted on the one hand of a retention by the executors out of the estate or, alternatively, the provision of an indemnity from the beneficiaries by whom (usually) a distribution without retention was sought.’ and
‘If security was to be provided by a beneficiary to an executor so as to indemnify the executors in a secured way and, alternatively, where there was a retention by the executor in lieu of sufficient security from the beneficiary, then the question of the amount of the security or of the retention would be adjourned to be fixed by the master: Simmons v Bollard, Dobson v Carpenter, Re Bennett and Re Owers. That reference to the master was not, it seems, by reason of any rule or principle requiring it but simply because the material for an assessment had not been put before the judge: see e. g. Re Owers.
The principle on which the master would act in fixing the amount or nature of the security or retention is not disclosed in the cases but it is nowhere suggested that the calculation had to be such that the security would necessarily and in all possible events suffice to meet in full whatever the executor might have to pay the creditors.’ and
‘Even though a contingent creditor had no strict right at law or in equity to insist upon a retention or upon security, the better view, in my judgment, is that the court would have in mind, in fixing a retention or security, that it was proper, as noted above, that creditors should to some extent be protected.’ and
‘The courts looked in general at the ‘reasonable probability’ of there being future demands against the estate: Dean v Allen. A practical view would be taken.’
Lindsay J continued: ‘the court could take a practical view, even against executors who asked for better protection, that no retention or security beyond the personal liability of the beneficiaries was needed and could decree accordingly, thus conferring the immunity which the executors had sought: see Waller v Barrett and March v Russell.’ and he concluded ‘First, a distribution made pursuant to a decree of the court affords a complete protection for the executor and the executor need not and indeed should not look, for example to a retention, for any protection beyond that. Secondly, it has long been the practice of the court to enable personal representatives to set apart ‘a reasonable sum to cover any liability which might in any reasonable probability arise by reason of a future breach’ of covenants in a lease held by the deceased: Kindersley V-C in Dodson v Carpenter. These observations can comfortably coexist if the case was that where an executor during his administration knew of no likelihood of any contingent debt maturing he could, by having an account taken in court of all known liabilities, obtain a decree which permitted him to distribute to legatees without making any retention but which none the less gave him complete freedom from a devastavit (save in exceptional circumstances such, for example, as fraud, misrepresentation or concealment). Where that was done a creditor with a late maturing contingent debt would be able to recover, if at all, only against the legatees.
Conversely, if, during an administration some real possibility of some contingent debt maturing came to the executor’s notice, the executor could, either of his own volition or under the guidance of the court, retain a sum out of the estate against that risk or seek security direct from the prospective recipient beneficiary. If there was a retention and if his retention was pursuant to a direction of the court, or if the security from the beneficiary was given under the direction of the court, then, again, he would be protected against devastavit once the fund retained or the security so given was exhausted in application towards a risk against which it had been reserved. But if the executor failed to obtain the directions of the court in that he distributed with neither a retention, nor a security from a beneficiary, sanctioned by the court nor had obtained the sanction of the court upon the taking of an account and a decree then, in any such case, he remained at risk of personal liability.’

Judges:

Lindsay J

Citations:

Gazette 03-Sep-1997, [1997] 4 All ER 907

Jurisdiction:

England and Wales

Cited by:

Cited – Re K (Deceased) ChD 28-Mar-2007
The administrators of the deceased’s estate sought permission of the court to pay certain creditors and then to distribute the balance to the beneficiaries without reference to claims against the estate which they disputed.
Held: Whilst a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 June 2022; Ref: scu.82307

In Re Ratcliffe, Deceased: ChD 19 Mar 1999

When apportioning a residuary estate between charitable and non-charitable beneficiaries, the debts should be paid first, the estate divided, and only then the Inheritance Tax calculated. The gross division system used in this case had prejudiced the non-charitable beneficiaries.

Citations:

Times 19-Mar-1999, Gazette 17-Mar-1999, Gazette 31-Mar-1999

Jurisdiction:

England and Wales

Citing:

Not followed – In re Bentham’s Will Trusts 1995
. .
Lists of cited by and citing cases may be incomplete.

Inheritance Tax, Wills and Probate

Updated: 17 June 2022; Ref: scu.82145

Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo: ChD 9 Feb 2004

The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not apply.
Held: He had acquire a domicile of choice in Australia. His return to England was not sufficiently unconditional to evidence abandonment of his Australian domicile. ‘it may be that his intention to return to Queensland was withering. But I do not consider that it died before Anthony did. ‘

Judges:

The Honourable Mr Justice Lewison

Citations:

[2004] EWHC 188(Ch), [2004] WTLR 457

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependents) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
Cited – Re Flynn 1968
The court had to decide on the intentions of the deceased with regard to domicile: ‘In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in . .
Cited – Inland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .

Cited by:

Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 14 June 2022; Ref: scu.193415

M’Culloch’s Trustees v Macculloch: HL 24 Nov 1903

A testator directed his trustees on the death of his wife to hold the residue for behoof of his children in liferent, and equally among them and their lawful issue in fee, and on the death of all his children to divide his estate among the children of his sons and daughters per stirpes. He directed that if any of his children died leaving issue, such child’s share of the income should belong to such issue. The son of one of the testator’s sons, who was dead, attained majority after the death of the testator’s widow, and thereupon claimed payment of one-third of the residue. Two of the testator’s children were still alive and had issue. It was admitted that a share of the residue had vested in the beneficiary who now claimed payment. He based his claim (1) upon the terms of the settlement, and also (2), when the case was argued in the House of Lords, upon the 17th section of the Entail Amendment (Scotland) Act 1868, he having been born after the death of the testator, and the testator having died after the passing of that Act.
Held ( aff. judgment of the Second Division) that he was not now entitled to payment or conveyance of any part of the residue, in respect (1) that the testator intended the residue to remain unsevered until the death of the last survivor of his children, and that the interests of the other present and ultimate beneficiaries might be prejudiced by severing the estate now; and (2) that the case was not within the provisions of section 17 of the Entail Amendment (Scotland) Act 1868, because the beneficiary claiming payment was not a liferenter but a fiar.
Miller’s Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L.R. 236; and Yuill’s Trustees v. Thomson, May 29, 1902, 4 F. 815, 39 S.L.R. 668, approved, but explained and distinguished per Lord Davey.
Haldane’s Trustees v. Haldane, December 12, 1895, 23 R. 276, 33 S.L.R. 206, approved per Lord Davey.
One of the parties to a special case as to the effect of a trust-disposition and settlement having unsuccessfully appealed to the House of Lords against a unanimous judgment of the Second Division, the House of Lords found him liable in the expenses of the appeal.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley

Citations:

[1903] UKHL 88, 41 SLR 88

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate, Trusts

Updated: 13 June 2022; Ref: scu.630583

Richards and Another v Morgan: CA 18 Oct 2001

The claimants sought admission to probate of a will. The respondent objected saying that the testatrix did not have capacity.
Held: Contested probate proceedings are specialist proceedings, and must be dealth with by oral application save with the consent of all parties. The judge had not given any reasons at all for his decision which appeared to have been reached in the absence of the statements from the defendants. The matter was adjourned to allow the defendants to issue application for leave on notice, though it was to be hoped that it could be agreed by consent.

Judges:

Chadwick LJ

Citations:

[2001] EWCA Civ 1592

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 13 June 2022; Ref: scu.201429

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 value now but when the will was executed.

Judges:

Chadwick LJ

Citations:

[2001] EWCA Civ 1551

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
At first instance – 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 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 by:

See Also – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 13 June 2022; Ref: scu.201393

Melhuish v Waters: CA 5 Jul 2001

A settlement had been reached on the morning of the trial, embodied in a consent order. The applicant sought leave to appeal, denying that he had consented. He now applied for an adjournment of his application.
Held: The application for the adjournment was unsupported by justification and was too late. The applications for adjournment and for leave were refused.

Citations:

[2001] EWCA Civ 1174

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 13 June 2022; Ref: scu.201265

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 marginal, but an appeal was not hopeless.

Judges:

Robert Walker LJ

Citations:

[2001] EWCA Civ 228

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Full Appeal – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
At First Instance – Fuller v Strum ChD 20-Dec-2000
Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .

Cited by:

Leave application – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 June 2022; Ref: scu.200805

Wade v Grimwood: CA 28 Jul 2004

The claimant and the deceased had cohabited for many years. She died intestate, and her mother inherited her estate. His claim had been largely successful, but he now appealed, wanting all the proceeds of sale of the home. The home had been divided according to a declaration of trust, 80 per cent in his favour, but he now said she had not made the contributions anticipated.
Held: This was not an accounting situation but one of set-off, each obligation being enforceable immediately, subject, in the event of a cross-claim, to a right of set-off in the party against whom the obligation is sought to be enforced. The payments had been made from a joint account from which either could draw, and this operated as a waiver against the claimant: ‘The judge, who saw and heard the claimant give evidence, must have thought that he had made it clear to the deceased that he was not going to enforce any right to reimbursement against her and that she had ordered her affairs accordingly. As between parties living happily together, that is surely enough to establish waiver. It is not appropriate to insist on the formalities of waiver in its application to an informal relationship.’

Judges:

Lord Justice Ward Lord Justice Jacob and Sir Martin Nourse

Citations:

[2004] EWCA Civ 999

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Halesowen Presswork and Assemblies Ltd v Westminster Bank Ltd CA 1971
The relationship of banker and customer was a single relationship the situation was not one of lien. Buckley LJ said: ‘Nor is it a set-off situation, which postulates mutual but independent obligations between the two parties. It is an accounting . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 June 2022; Ref: scu.199996

Uglow v Uglow and others: CA 27 Jul 2004

The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being a partner in part of the farm. That partnership had later foundered. The earlier assurance was not irrevocable, and no estoppel arose.

Judges:

Lord Justice Mummery, Lord Justice Waller Lord Justice Jonathan Parker

Citations:

[2004] EWCA Civ 987, [2004] WTLR 1183.

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Ramsden v Dyson HL 11-May-1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .

Cited by:

Cited – Thorner v Curtis and others ChD 26-Oct-2007
The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
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 – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Estoppel

Updated: 11 June 2022; Ref: scu.199572

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 pass to the children and grandchildren of the testatrix’s daughters. She died in 1949. In 1995 Francesc-Xavier made a will in favour of his wife, but in a codicil he left the assets inherited under his mother’s will to his wife for life and then to their adopted son Antoni, who was born in 1966 and adopted by them, in Spain, in 1969. The assets were described in the report as real estate. Francesc-Xavier died in 1996.
Two great-granddaughters of the testatrix applied to the Tribunal des Batlles to have the codicil declared void. That Tribunal dismissed the application on the basis that the case was governed by the testatrix’s intention determined by the terms of her will, that there was no statutory or constitutional provision relating to adopted children at that time in Andorra, that customary law was derived partly from Roman law under which adopted children ranked equally with natural-born children, and accordingly the testatrix, by making no express exclusion of adopted children, should not be taken to have excluded them by implication. I understand that legislation was introduced in 1958 putting adopted children on an equality, but that this did not affect the matter.
The great-granddaughters appealed, and in 2000 the High Court of Justice allowed the appeal and set aside the codicil in its entirety. It agreed that the matter was governed by the testatrix’s expressed intention when she made her will, and that Antoni could not rely on the legislation of 1958. But it was significant that in the first half of the 20th century adoption was virtually unknown in Andorra, that provisions of Roman law ‘could not easily be transposed’ to Andorran families living at that time, that in any event the relevant Spanish legislation (under which Antoni had been adopted) gave an adopted child rights of inheritance from his or her adoptive parents but not from more remote family members; so that, by not explicitly including adopted children, the testatrix should not be taken to have intended to include her son’s adopted son.
Antoni and his mother made two attempts to have this ruling annulled by the national courts in Andorra, but those attempts failed. They then brought the claim in the ECHR, saying that the appeal court had acted in breach of articles 8 and 14 by allowing the appeal from the decision of the Tribunal, and they maintained that the case should be governed by private law in the light of Andorran law in force in 1996, when Francesc-Xavier died, and the Convention. The ECHR took the relevant national legislation to be that in force in 1939 and 1949 (rather than 1996).
The government of Andorra took a preliminary point that no relevant ‘family life’ was affected because Antoni had been adopted 20 years after the testatrix had died, but the ECHR ruled unanimously that inheritance by children and grandchildren does fall within the scope of article 8, The Court was divided on the main issue, with a majority concluding that Antoni’s rights under articles 8 and 14 had been infringed, but with two members of the court, namely Judge Bratza and Judge Garlicki, dissenting. The majority began by pointing out that previous cases of this kind before the ECHR had concerned the discriminatory effect of statutes in various member states, whereas the instant case related to the interpretation or construction of a testamentary disposition. They went on to record the principle that domestic law should normally be determined by the domestic courts, all the more so with a disposition such as a will. ‘Accordingly . . an issue of interference with private and family life could only arise under the Convention if the national courts’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.’
The majority went on to find that the decision of the appeal court was blatantly inconsistent with the Convention: ‘In the present case the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant’s father [Francesc-Xavier] is indisputable. The sole remaining question is therefore whether the notion of ‘son’ in [the testatrix’s] will extended only, as the [appeal court] maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so, but as she did not the only possible and logical conclusion is that this was not her intention.
‘The [appeal court’s] interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it.
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
In the present case the [appeal court’s] interpretation of the testamentary disposition in question had the effect of depriving the first applicant [Antoni] of his right to inherit under his grandmother’s estate and benefiting his cousin’s daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant [Antoni’s mother] losing her right to the life tenancy of the estate assets left her by her late husband.
Since the testamentary disposition, as worded by [the testatrix], made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child’s inheritance rights.’
‘The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for states, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the Member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix’s death, namely in 1939 and 1949, particularly where a period of 57 years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills : any interpretation should endeavour to ascertain the testator’s intention and render the will effective, while bearing in mind that ‘the testator cannot be presumed to have meant what he did not say’ and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court’s case law.’

Citations:

69498/01, [2004] ECHR 334, (2006) 42 EHRR 25, [2004] 2 FCR 630

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Larkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Judgment – Pla and Puncernau v Andorra ECHR 8-Aug-2011
Execution – The court was asked to interpret a testamentary provision and as to the right of an adopted son to inherit from his grandmother under her will.
When a child is adopted under a full adoption procedure, the child is in the same legal . .
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 . .
Cited – Khurshid Mustafa And Tarzibachi v Sweden ECHR 8-Jun-2011
The Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant.
Held: This infringed the . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Wills and Probate, Adoption

Updated: 11 June 2022; Ref: scu.198704

Pennington and others v Crampton and others: CA 17 Jun 2004

Application for permission to appeal against proposal of Tomlin Order

Judges:

Waller, Chadwick LJJ

Citations:

[2004] EWCA Civ 819

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
See Also – Hurst v Crampton Bros (Coopers) Ltd and others CA 9-Aug-2002
Adjourned application for permission to appeal . .
Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate

Updated: 11 June 2022; Ref: scu.198508

Re Moss, Larke v Nugus: CA 1979

Executors To Give Information Avoiding Expense

(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who was a solicitor who had been responsible for drawing up the will, had taken the view that the defendants were not entitled to a copy of it or to any explanation of the circumstances in which it had been drawn up.
Held: Where there is a potential dispute over the validity of the Will, the executors should make every effort to avoid costly litigation. One of those measures was to provide full and frank information as to how the Will came to be made. The costs of a defendant who had unsuccessfully put in issue the question of knowledge and approval by the testator of a will were nevertheless left to come out of the estate.
Brandon LJ said: ‘Nevertheless, it is necessary to consider, not only the recommendation itself, but the principle upon which the recommendation is based, and the duty of a solicitor when faced with matters of this kind. The recommendation is no doubt of importance, but even if it had not been made certain principles would apply to the matter, and in my judgement the principle which applied is that, when there was litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will, as to how the will came to be made.’
and
‘Where a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat and the solicitor’s knowledge makes them a material witness, then the solicitor should make available a statement of their evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will, whether or not the solicitor acted for those who were propounding the will.’

Judges:

Brandon LJ

Citations:

[2000] WTLR 1033, (1979) CA p337

Jurisdiction:

England and Wales

Cited by:

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 – Mausner and Another v Mincher and Another ChD 26-Apr-2006
. .
Cited – Jarrom and Another v Sellars ChD 24-Apr-2007
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Leading Case

Updated: 11 June 2022; Ref: scu.266581

Perotti v Watson and others: CA 26 Feb 2004

The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant had been appointed administrator de bonis non because the sums owed to him from the estate now exceeded the assets and as such the court’s discretion under section 116 had been used to appoint him. There was no realistic prospect of success of appealing against that order. Leave was refused on several other grounds of appeal.

Judges:

Chadwick LJ

Citations:

[2004] EWCA Civ 269

Links:

Bailii

Statutes:

Supreme Courts Act 1961 116

Jurisdiction:

England and Wales

Citing:

See also – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .

Cited by:

See also – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
See also – Angelo Perotti v Iliffes Booth Bennett (A Firm), Bird and Bird (A Firm), Richard Francis Dudley Barlow (Sued As Francis Barlow) ChD 28-Oct-2003
. .
See also – Perotti v Collyer-Bristow (A Firm) and others CA 6-Oct-2003
So far as civil proceedings are concerned, the funding of particular cases by civil legal aid was a matter for the Legal Services Commission. The courts have no residual power to make an order for assistance. The most it could do would be to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 10 June 2022; Ref: scu.195098

Emerson (Executrix of James Henry Emerson) v Estate of Thomas Matthew Emerson: CA 5 Feb 2004

Two brothers farmed in partnership. The partnership was dissolved in 1998 on the death of one brother, but the business continued. The farm was affected by the foot and mouth outbreak in 2001, and the second brother died shortly after. Compensation became payable, and the two sets of executors sought directions as to how the compensation was to be accounted for.
Held: S42(1) had no application. The money constituted a post cessation capital receipt, and could not be deemed to have been part of profits. As such it fell to be distributed under s24(1).

Judges:

Brooke, Chadwick, Scott Baker LJJ

Citations:

Times 03-Mar-2004, Gazette 11-Mar-2004, [2004] EWCA Civ 170

Links:

Bailii

Statutes:

Partnership Act 1890 24(1) 42(1)

Jurisdiction:

England and Wales

Citing:

Cited – Popat v Shonchatra CA 25-Jun-1997
Partnership assets, both as to capital and revenue were to be divided equally between the partners in the absence of an agreement otherwise even though they had made an unequal contribution. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Company

Updated: 10 June 2022; Ref: scu.194274

Cattle v Evans and Another: ChD 19 Apr 2011

The claimant the survivor of a long term relationship with the deceased claimed for provision form his estate, and an interest in the house under a constructive trust. The parties had moved several times buying and selling properties.
Held: The claim for a constructive trust failed. The parties had latterly kept their properties and financial affairs separate. The actual ownership arrangements reflected that intention. As to the claim under the 1975 Act, the claimant did fall within the class to be provided for. Under the laws of intestacy, the claimant would receive nothing at all. The actual beneficiaries did not themselves have financial needs, but the claimant would be receiving welfare benefits. Allowing for all the elements required to be accounted for, reasonable financial provision had not been made. A sum should be made available from the estate to her to allow her the purchase of a modest property.

Judges:

Kitchin J

Citations:

[2011] EWHC 945 (Ch), [2011] WTLR 947, [2011] Fam Law 809

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(1)(ba)

Jurisdiction:

England and Wales

Wills and Probate, Trusts

Updated: 10 June 2022; Ref: scu.432856

Weatherhill v Pearce: ChD 7 Nov 1994

The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her intention to give effect to the will, satisfied the UK law’s attestation requirements. The court is to try to construe will to avoid intestacy and to reflect testator’s wishes.

Judges:

HHJ Kolbert

Citations:

Times 07-Nov-1994, Ind Summary 05-Dec-1994

Statutes:

Wills Act 1837 9(a)

Jurisdiction:

England and Wales

Citing:

Cited – Re Casmore 1869
. .
Cited – The Goods of Pearn, Re 1875
. .
Cited – In re The Goods of Moore 1901
. .
Cited – Wood and Another v Smith and Another CA 6-May-1992
A home made will signed only at the top of the page but where there was a clear indication of testamentary intention is a valid will. . .
Cited – Bird v Pearce CA 1979
The plaintiff was a passenger in a car on a major road which who was injured in a collision with a car which emerged from a minor road. The driver of the second car, who was agreed (as between the two cars) to be 90% responsible, joined the County . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 10 June 2022; Ref: scu.90344

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.
Held: The Act should be read to allow the claim. The issue was whether the claimant’s departure for three months meant that she was unable to show that she had lived with, or was being maintained by, the deceased throughout the last two years of his life. In the light of the authorities, the judge looked to the settled state of affairs before the death. For these purposes the question was whether the relationship had truly come to an end. This relationship had not.

Judges:

Ward LJ, Mummery LJ, Rix LJ

Citations:

Times 28-Jan-2004, [2004] EWCA Civ 139, [2004] 1 FLR 918

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1, Law Reform (Successors) Act 1995

Jurisdiction:

England and Wales

Citing:

Cited – 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 – 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 . .
Cited – Rex v Creamer CCA 1919
The prosecution had to prove in a receiving case that the husband and wife were not ‘living together’. Held ‘A husband and wife are living together not only when they are residing together in the same house, but also when they are living in . .
Cited – Nugent-Head v Jacob HL 1948
A wife was held still to be ‘living with her husband’ who had been absent on military service for more than three years because there had been ‘no rupture of matrimonial relations.’ . .
Cited – Santos v Santos CA 16-Feb-1972
The court considered whether one party who lived in Spain and the other who lived mainly, but not exclusively, in England, were, despite several periods of close cohabitation, living apart.
Held: Mere physical separation without more did not . .

Cited by:

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

Updated: 09 June 2022; Ref: scu.193409

Jennings and Another v Cairns: CA 18 Nov 2003

Nieces had fallen out over their aunt’s estate. One niece had been closer than the others, and despite not properly understanding what she was doing the deceased had made lifetime gifts to the niece who was now executor. She appealed a finding of having an obligation as executor to reinstate the estate despite not herself having misled the aunt.
Held: The court had to undertake a balanced assessment of all the relevant circumstances in deciding whether undue influence had been established and whether it had been rebutted by the niece. The niece might have discharged that burden by showing that her aunt had made an informed choice, but the niece had not done this. Mistake was not a complete answer merely because advice independent of the niece had been given to Enid.
Parties should recognise that it is the practice of the Court of Appeal judges to pre-read case, and therefore, agreed lists of authorities must be supplied as required 28 days before the hearing and in any event no less than eight days before. The court recognised the difficulties of acceding to the 28 day requirement, but the eight day period must be complied with. Parties had not properly complied with the 2001 direction on citation of authorities. That direction must be followed.

Judges:

Lord Phillips of Worth Matravers MR

Citations:

Times 25-Nov-2003, [2003] EWCA Civ 1935

Links:

Bailii

Statutes:

Civil Procedure Rules 15.11

Jurisdiction:

England and Wales

Citing:

Cited – Practice Direction on the Citation of Authorities LCJ 9-Apr-2001
The court laid down rules for restricting the citation of authorities, which rules are to be applied in all courts except criminal courts. The increase in the number of judgments series being available had come to be problematic for all involved, . .
Appeal from – Re Davidge 2003
Family members said that another niece had obtained gifts from the deceased by the exercise of undue influence. Several substantial gifts had been made to a niece and her family who had been more like a daughter to the deceased. Correspondence . .

Cited by:

Cited – Goodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Undue Influence, Wills and Probate

Updated: 08 June 2022; Ref: scu.189953

Moorhead v Moorhead: ChNI 11 Jan 2002

The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance’.
Held: ‘The comparison between divorce provision and inheritance provision is necessarily inexact as the former involves fairness for both husband and wife while the latter may admit of greater flexibility as it involves the same property being available to make reasonable provision for only one spouse.’

Citations:

[2002] NICh 1

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependents) (Northern Ireland) Order 1979

Jurisdiction:

Northern Ireland

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 – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .
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 – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
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.

Northern Ireland, Wills and Probate

Updated: 08 June 2022; Ref: scu.189690