Category: Wills and Probate

Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others: PC 20 Nov 2003

PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of coparceny, but the substantial asset was in Jersey.
Held: The Royal Court was right in its view that Kenya is clearly a more appropriate forum than Jersey for the trial of Mahesh’s action, and that no compelling reason has been made out for rejecting Kenya on the ground that Mahesh (or any other party) cannot expect to obtain justice there.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Sir William Aldous

Citations:

[2003] UKHL 77

Links:

Bailii, PC

Citing:

Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Wills and Probate

Updated: 08 June 2022; Ref: scu.188440

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 indicate that it considered legal representation to be necessary to avoid the claimant’s human rights being infringed.

Judges:

Chadwick, Carnwath LJJ

Citations:

[2003] EWCA Civ 1521, Times 27-Nov-2003

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

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 . .
See also – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Aid, Human Rights

Updated: 08 June 2022; Ref: scu.187580

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

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 2497 (Ch)

Links:

Bailii

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 . .
See also – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 June 2022; Ref: scu.187284

Holliday and Another v Musa and Others: CA 30 Mar 2010

The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958.

Judges:

Waller VP, Rix Wilson LJJ

Citations:

[2010] 2 FLR 702, [2010] EWCA Civ 335, [2010] Fam Law 702, [2010] WTLR 839

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2

Jurisdiction:

England and Wales

Citing:

Cited – Forbes v Forbes 9-Feb-1854
A man cannot have two domicils, at least with reference to the succession to his personal estate.
Legitimate children acquire by birth the domicil of their father.
An infant cannot change his domicil by his own act.
A new domicil . .
Cited – Aitchison v Dixon 1870
The testator, William Allan, had been Lord Provost of Edinburgh and unmarried. When 40 he moved to England ‘for a wife’ and ‘had the good fortune to win the hand of a widow . . of considerable wealth and expectations’. They lived for a while in . .
Cited – Atorney-General v Yule and Mercantile Bank of India 1931
The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin. . .
Cited – Abraham v Attorney-General 1934
. .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – 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 – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .

Cited by:

See Also – Musa and Others v Holliday and Others CA 15-Oct-2012
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 June 2022; Ref: scu.406567

Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman: CA 1 Jul 2003

The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made under unusual circumstances on appeal from the original costs order.
Held: The conflict of interest had been recognised, and appropriate proposals rejected. It was not significant, and did not contribute to the costs (Ridehalgh). A different form of action would have not saved any costs. The executors were met with a threat to challenge the will, which undermined their capacity to administer the estate. The position was not clear. The primary responsibility for the difficult task of protecting the interest of litigants in person must rest with the court. Appeal allowed.

Judges:

Sir Christopher Staughton Lord Justice Carnwath

Citations:

A3/2002/2244, Gazette 17-Jul-2003, [2003] EWCA Civ 886

Links:

Bailii

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Cited – In Re Freudiana Holdings Ltd CA 4-Dec-1995
A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case. . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Wills and Probate

Updated: 07 June 2022; Ref: scu.184169

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.
Held: The case law establishes that the proposition that the propounder of a will: ‘must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.’ The Board rejected a suggestion that the onus of proof could only be discharged by evidence of prior instructions for or subsequent reading over of the will before execution by the testator, saying: ‘Nor can it be necessary, that in all such cases, even if the testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for, or reading over the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the will may be brought home to the deceased. The court would naturally look for such evidence; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.’
The rules for admitting a will to probate are two. Baron Parke said: ‘the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party wrote or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.’ The conscience of the court must be satisfied by the evidence.’

Judges:

Baron Parke

Citations:

(1838) 2 Moores PCC 480, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, [1838] UKPC 22

Links:

Commonlii, Commonlii, Commonlii, Bailii

Citing:

Appeal from – Butlin v Barry 5-Sep-1837
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
See Also – Barry v Butlin 22-Jun-1836
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

Cited by:

Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
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 – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Cited – Tyrrell v Painton CA 1894
The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin . .
Cited – Wintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 07 June 2022; Ref: scu.181901

Piggott v Aulton (Deceased): CA 29 Jan 2003

The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant then said the proceedings were an abuse of process, and pleaded a limitation defence.
Held: The deceased was not a person in law, and the first action had no proper defendant, and the two actions were not the same. The person appointed to defend was not a personal representative at law. There was an identity between him and the deceased, but only to the extent of the requirement to provide a defendant, and the appointment did not relate back to the death. The case fell within Shapland, not Walkley, and the judge could apply section 33 to allow the action.

Judges:

Lord Justice Sedley, Lord Justice Simon Brown, Lady Justice Arden

Citations:

Times 19-Feb-2003, [2003] EWCA Civ 24, [2003] RTR 540

Links:

Bailii

Statutes:

Limitation Act 1980 33, Civil Procedure Rules 19.8(2)(b)(ii)

Jurisdiction:

England and Wales

Citing:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .

Cited by:

Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Wills and Probate, Limitation

Updated: 06 June 2022; Ref: scu.178789

Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others: ChD 26 Feb 2002

Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted.
Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as a right of reverter, and therefore as part of the residuary estate, but rather as if it had been land in the estate, and passed as provided by the will as such. A right of reverter on the determination of a determinable fee was devisable under 3 of the 1837 Act

Judges:

Mr Justice Etherton

Citations:

Times 29-Mar-2002, Gazette 11-Apr-2002, [2002] EWHC 218 (Ch)

Links:

Bailii

Statutes:

School Sites Act 1841 2, Wills Act 1837 3

Jurisdiction:

England and Wales

Citing:

Cited – In Re Cawston’s Conveyance and the School Sites Act 1841 CA 1940
The 1841 Act was intended to encourage land owners to make land available for educational purposes: ‘One can see that the provision with regard to reverter would have been and no doubt was considered by the Legislature to be a very useful . .
Cited – Dennis v Malcolm 1934
The court considered the way in which the 1841 Act might operate as to a reversion of the title. Clauson J said: ‘In my view it is plain that the deed is intended to operate and operate only under the [1841] Act, and the effect of dealing with the . .
Cited – Fraser and Another v Canterbury Diocesan Board Of Finance (No 1) CA 24-Nov-2000
A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had . .
Lists of cited by and citing cases may be incomplete.

Land, Wills and Probate

Updated: 05 June 2022; Ref: scu.168063

Warriner v Rogers: 1800

(Year unknown) The donor wrote on pieces of paper that her servant was to have certain property on her death, but these documents did not amount to a valid will.
Held: The gift was imperfect as these documents did not constitute a valid declaration of trust.

Judges:

Sir James Bacon VC

Citations:

LR 16 Eq 340

Jurisdiction:

England and Wales

Cited by:

Cited – 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, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 05 June 2022; Ref: scu.183415

King v Dubrey and Others: ChD 1 Jul 2014

The claimant said that before her death, the now deceased testator had handed the deeds of the house to him saying that she was giving the house to him. He said it was a donatio mortis causa gift.

Judges:

Charles Hollander QC

Citations:

[2014] EWHC 2083 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Cosnahan v Grice PC 12-Jul-1862
Isle of Man – The Board emphasised the burden of proof in claims to have received a donatio mortis causa: ‘Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous . .
Cited – In Re Craven’s Estate ChD 1937
D was about to undergo an operation which might prove fatal. D gave a power of attorney to R (her son). She told R that she wanted him to have certain shares and monies in her bank account if she died. R notified the bank, which responded that it . .
Cited – Sen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Cited by:

Appeal from – King v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 June 2022; Ref: scu.537773

Mazurek v France: ECHR 1 Feb 2000

ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

34406/97, [2000] ECHR 48, (2006) 42 EHRR 9

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

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

Human Rights, Children, Wills and Probate

Updated: 04 June 2022; Ref: scu.165807

In re Waring, Westminster Bank v Burton-Butler: ChD 1948

(i) an annuitant under a will was bound by a decision of the Court of Appeal in earlier litigation, where the will trustees and he were parties, as to the effect of tax legislation on his rights, but (ii) another annuitant was entitled to rely on a subsequent, more favourable, decision of the House of Lords on the point in a different case, because he had not been a party to the earlier litigation.

Judges:

Jenkins J

Citations:

[1948] Ch 221

Jurisdiction:

England and Wales

Cited by:

Cited – Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 04 June 2022; Ref: scu.535290

Dutton and Dutton v Dutton and Brown: ChD 3 Feb 2000

An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the sale.

Judges:

Honourable Mrs Justice Arden DBE

Citations:

[2000] EWHC Ch 167

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Day v Trig 1715
The testator had made a testamentary gift of his freehold houses in Aldersgate Street, when he had only leasehold properties there, the word ‘freehold’ was rejected. The court stated that it would not have done this if there had also been freehold . .
Cited – Re Malpass ChD 1985
The testator gave an option to his son to purchase his farm ‘at the agricultural value thereof determined for probate purposes . . as agreed with the district valuer’. The district valuer would not participate in this valuation.
Held: The . .
Cited – Sudbrook Trading Estate v Eggleston HL 1983
An option was granted to purchase the reversion conferred on the lessees under certain leases. The price was be not less than andpound;12,000, and it was to be fixed by valuers appointed by each party and default of agreement it was to be fixed by . .
Cited – Re Fleming’s Will Trusts 1974
By his Will made in 1969, the testator bequeathed to the first defendants his leasehold house at Narcissus Road. The house was than held under a lease term expiring on 28th September, 2008 subject to covenants to repair. In April 1971, the testator . .
Cited – Re Hammersley 1965
A court will not speculate as to a testator’s intentions if they cannot be ascertained. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 04 June 2022; Ref: scu.162985

Shephard v Wheeler: ChD 15 Feb 2000

An administrator had obtained a grant in the estate of the deceased without disclosing that, although he claimed to be a Chartered Accountant, he had lost his membership, that he was a bankrupt and that the deceased had been a creditor in his bankruptcy. The extent of this wilful failure to disclose was such as to justify revocation of the grant. In the circumstances full disclosure was required. The fact that the bankruptcy was discoverable as a public fact by a search did not obviate the need for disclosure.

Citations:

Times 15-Feb-2000

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 04 June 2022; Ref: scu.89217

Inland Revenue Commissioners v Lloyds Private Banking Ltd: ChD 10 Apr 1998

Provision in will where one tenant in common directed that surviving tenant be allowed to occupy house until death and thereafter gave the share to his daughter created a sufficient interest for the survivor to be charged to tax.

Citations:

Times 10-Apr-1998, Gazette 13-May-1998

Statutes:

Inhertance Tax Act 1984

Jurisdiction:

England and Wales

Wills and Probate, Inheritance Tax

Updated: 04 June 2022; Ref: scu.82349

Murray and Others (Gregory’s Trustees) v Gregory’s Trustees and Others: HL 8 Apr 1889

By postnuptial contract spouses conveyed to each other in liferent, and to the children of the marriage, if any, in fee, the whole estate of each, the fee of both estates to be divisible by the husband of the marriage, such division to take effect after the death of the surviving spouse, and at majority or marriage of the children. Powers of advancing funds for their maintenance and education, or settlement in business, were given to certain named trustees. Should all the children die during the life of the surviving spouse the funds were (failing a disposition by the spouses severally) to suffer division after the decease of the survivor, by the husband’s funds falling to his own nearest of kin, and the wife’s falling to her own nearest of kin. The husband died without executing any further deed, survived by his widow and one child. The latter died, survived by an only son. The widow sold certain heritable property, which had been bought by her husband, and conveyed the same with consent of her grandson. The price of the subject was delivered to trustees to be held for those entitled thereto under the above named contract. The grandson died under age disposing of any right he might have in the said price in favour of his grandmother, who dealt therewith in her will.
Held ( rev. the judgment of the Court of Session) (1) that the persons favoured as to the husband’s estate were his nearest of kin as a class to be ascertained as at his own death; (2) that the grandson’s will carried the price of the heritable subjects, as it had not been challenged within the prescribed period.
Opinion ( per Lord Watson) that as a result of the Moveable Succession Act 1855 (18 and 19 Vict. cap. 23) ‘nearest of kin’ is not equivalent to heirs in mobilibus.

Judges:

Lord Chancellor ( Halsbury), and Lords Watson and Macnaghten

Citations:

[1889] UKHL 787, 26 SLR 787

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 03 June 2022; Ref: scu.635171

Cowan v Foreman and Others: FD 25 Feb 2019

Application by the claimant under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 for permission to make a substantive application under section 2 of that Act against the estate of her deceased husband Michael Anthony Cowan.

Judges:

Mostyn J

Citations:

[2019] EWHC 349 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 03 June 2022; Ref: scu.634805

Re Price: ChD 2006

Citations:

[2006] EWHC 2561 (Ch)

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 June 2022; Ref: scu.428463

Kostic v Chaplin and others: ChD 7 Dec 2007

The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself should follow the event with only a limited element before that coming out of the estate. Two historical principles for the award of costs in probate cases survived the Civil Procedure Rules. A positive case has to be made out before departing from the general rule that costs should follow the event, and also that ‘the two great principles upon which the court acts’ are neither exhaustive nor rigidly prescriptive. They are guidelines, not straitjackets, and their application will depend on the facts of the particular case. The ‘touchstone should be whether it was the testator’s own conduct which had led to his will ‘being surrounded with confusion or uncertainty in law or fact’. If that causal test is satisfied, it should not in my judgment matter for the purposes of the first rule whether the problem is one relating to the state in which the deceased has left his testamentary papers (for example where a will cannot be found, or where there is a question whether a will has been revoked), or whether the problem relates to the capacity of the deceased to make a will.’ In this case th edeceased’s conduct may be regarded as the proper cause of the disupte, though ‘it can be a very difficult question to determine the precise point at which eccentricity shades into incapacity.’

Judges:

Henderson J

Citations:

[2007] EWHC 2909 (Ch), Times 11-Jan-2008

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Spiers v English 1907
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
Cited – Mitchell v Gard 1-Dec-1963
The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
Held: Sir James Wilde said: ‘The basis of all rule on this . .
Cited – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
Cited – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Cited – Davies v Gregory 1873
After a contested application, the court pronounced in favour of the will.
Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the . .
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .
Cited – Re Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Lists of cited by and citing cases may be incomplete.

Costs, Wills and Probate

Updated: 02 June 2022; Ref: scu.261898

Kostic v Chaplin and others: ChD 15 Oct 2007

The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, the testator’s mind was so poisoned by his delusions as to leave him unable to appreciate his proper duties to his son. Though a genuine supporter of the Conservative Party, his actual support was consistently tinged wih evidence of his delusions.

Judges:

Henderson J

Citations:

[2007] EWHC 2298 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – 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, Health

Updated: 02 June 2022; Ref: scu.259856

Hubbard v Hamburger: ECJ 1 Jul 1993

An order for security for costs was being sought against an English solicitor who, in the capacity of executor, was seeking to recover part of the testator’s estate in Germany.
Held: It was discrimination unlawful in European law, to require security from a national of an EC member state before being allowed to take out a grant in an estate if such a security would not be required from a state’s own nationals: ‘Articles 59 and 60 must be interpreted as precluding a Member State from requiring security for costs to be given by a member of a profession established in another Member State who brings an action before one of its courts, on the sole ground that he is a national of another Member State.’
Europa 1. The principle of equal treatment set out in Article 59 of the Treaty applies in all cases where a member of a profession offers services, normally for remuneration, in a Member State other than that in which he is established, wherever the recipients of those services may be established. Where a Member State requires a national of another Member State who brings proceedings before one of its courts in the capacity of an executor to give security for costs solely on the ground that he is a foreigner, this constitutes discrimination on grounds of nationality contrary to Articles 59 and 60 of the Treaty. 2. The right to equal treatment laid down in Community law may not be made dependent on the existence of international agreements, based on the principle of reciprocity, concluded between Member States. 3. The effectiveness of Community law cannot vary according to the various branches of national law which it may affect. The fact that the substantive proceedings come under the law of succession does not justify excluding the application of the right to freedom to provide services enshrined in Community law with respect to a member of a profession responsible for the case.

Citations:

Times 16-Jul-1993, Ind Summary 23-Aug-1993, C-20/92, [1993] EUECJ C-20/92, [1993] ECR 1-377

Links:

Bailii

Cited by:

Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, European

Updated: 01 June 2022; Ref: scu.160853

Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others: PC 30 Jul 1946

(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity appeared to be subsequently accepted. The committee could not reverse a finding of fact save in the case of a manifest blunder by the lower court, or where there were concurrent and contradictory findings of separate lower courts, or in exceptional cases. The court should be careful to respect the traditions and systems of the countries from which appeal was made. The appellant had been in possession of the estate for many years. However in Hindu law, her possession could not be adverse to that of her husband even though he might be presumed to be dead.
Held: The Board will only in exceptional circumstances review evidence for a third time. Exceptional circumstances might include a miscarriage of justice or violation of a principle of law or procedure: ‘That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.’

Judges:

Lord Thankerton, Lord du Parcq, Sir Madhavan Nair

Citations:

[1946] AC 508, [1946] UKPC 1

Links:

Bailii, PC

Citing:

Cited – Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry PC 1849
‘Both the Courts below have decided against the validity of the instrument; a fact which, considering the advantages the Judges in India generally possess, of forming a correct opinion of the probability of the transaction, and in some cases of the . .
Cited – Naragunty Lutchmeedavamah v Vengama Naidoo PC 1861
The Board restated its power to reconsider all points including the facts of an appeal brought before it. . .
Cited – Tareeny Churn Bonnerjee v Maitland 1867
When hearing a cae, the Board may itself reconsider the whole case including the evidence. . .

Cited by:

Cited – Mak v Wocom Commodities Limited PC 11-Nov-1996
(Hong Kong) The appellant had placed foreign exchange transactions with the respondents. He claimed that they were acting as his agents, and claimed that they had made undisclosed profits. They claimed to have been acting as principals. He now . .
Cited – Gilrose Finance Limited v Ellis Gould PC 23-Mar-2000
PC (New Zealand) An investor had agreed to invest in a tour by a sports star. The tour failed, and the propmeter turned out to have criminal convictions for dishonesty. He had asked his solicitor to look into the . .
Cited – Lewis v Henry St Hillaire and others PC 22-May-1996
(Saint Vincent and The Grenadines) A writ was issued, but little progress was made. The respondent applied for a declaration that the action had been abandoned and was incapable of being revived.
Held: The provision was one local to the home . .
Cited – Kwasi Bekoe v Horace Broomes PC 31-Oct-2005
PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the . .
Cited – Marshall and Others v Deputy Governor of Bermuda and Others PC 24-May-2010
marshall_dgPC10
(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Wills and Probate, Limitation, Commonwealth

Updated: 31 May 2022; Ref: scu.159146

In the Matter of the Will of 23rd July 1987 of Clara Broadbent Dec’d: CA 17 May 2001

A will left a charitable bequest to a particular church at a particular pace. Before the testator’s death the church was demolished, and the land sold for residential development.
Held: As a matter of construction, that the closure of the church did not lead to a failure of the church charity, in this particular case. The destiny of gifts to named charitable institutions located at specific premises, which had gone before the gift took effect, raised difficult questions, but in this case the gift did not fail.

Citations:

Times 27-Jun-2001, Gazette 12-Jul-2001, [2001] EWCA Civ 714

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Charity

Updated: 31 May 2022; Ref: scu.147550

Hannigan v Hannigan: CA 18 May 2000

The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the necessary information: ‘The ‘quirky’ petition was filed at the Stafford County Court and sealed by that court on 10th June 1999 and it contained all the information the defendants needed in order to be able to understand what was being claimed. They were told that Part 8 of the Civil Procedure Rules applied to the claim, and they were also told that the claimant relied on the evidence contained in her witness statement filed with the claim. In other words, all the complaints being made by the defendants’ solicitor were claims about form, not about substance.’
The judge had erred.

Judges:

Peter Gibson, Brooke, Robert Walker LJJ

Citations:

[2000] EWCA Civ 159

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Civil Procedure Rules 4.9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Cited – Harkness v Bell’s Asbestos and Engineering Limited CA 1966
The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) . .
Cited – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 31 May 2022; Ref: scu.147192

Talbot v Talbot: ChD 1968

A testamentary option was given relating to two farms which provided for the price to be the ‘reasonable valuation’ of the farms.
Held: This option was enforceable and the court ordered an enquiry as to what was a reasonable price for the farms.

Citations:

[1968] Ch 1

Jurisdiction:

England and Wales

Cited by:

Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 May 2022; Ref: scu.179721

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 development value six times its probate assessment, and, that being the case, there was a failure to make reasonable provision for another daughter who was in straitened circumstances.
Held: The appeal against the award in favour of the daughter failed. An adult child may not be absolutely unentitled to claim for provision from an estate, where it can be shown that deceased wanted to benefit the child, and that assets had acquired substantial and unexpected value after death.
An adult child does not have to show that the deceased owed him or her a moral obligation or that there were other special circumstances in order to succeed under the Act; and in deciding whether the disposition of the deceased’s estate makes reasonable provision for the applicant, the trial judge is not exercising a discretion but making a value judgment based on his or her assessment of the factors contained in section 3(1) of the Act.
Sir John Knox said: ‘In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the Inheritance (Provision for Family and Dependants) Act 1975 requires the court to have regard. Some factors may be neutral but many will go into the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry … there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J not to be present in Re Coventry . . [The] argument that an adult child cannot make a successful application unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable financial provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry , or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court’s conclusion that there has been a failure to make reasonable financial provision but the use of the phrase ‘special circumstance’ does not advance the argument. The work ‘special’ means no more than what is needed to overcome the factors in the opposite scale.’
Butler-Sloss LJ said: ‘Accordingly while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.’ and ‘I do not, for my part, extract from the decisions in Re Coventry and Re Jennings, the degree of support for the defendants’ case that Mr Crawford has submitted. It is clear to me that the 1975 Act does not require, in an application under s 1(1)(c), that an adult child (whether son or daughter) has in all cases to show moral obligation or other special circumstance. But on facts similar to those in Re Coventry and even more so with the comparatively affluent applicant in Re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation. The judge expressly found that there was no moral obligation or responsibility to be found in this case.’
Judge LJ said: ‘The decision in Re Coventry was considered in Re Jennings, deceased, [1994] Ch 286, where Nourse LJ concluded that in the case of an application by an adult son of the deceased who was fit and able to work, and in work, some ‘special circumstance, typically a moral obligation’ was required. The application ‘failed because the deceased owed him no moral or other obligation and no other special circumstance was shown’. The use of the word ‘typically’ is revealing. Nourse LJ did not say ‘invariably’ or ‘necessarily’. If he had done so he would have been using language which does not appear among the statutory criteria. Accordingly, while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.

Judges:

Lady Justice Butler-Sloss, Lord Justice Judge, Sir John Knox

Citations:

Gazette 20-May-1998, Times 08-May-1998, Gazette 03-Jun-1998, [1998] EWCA Civ 764, [1998] 2 FLR 346

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

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 . .
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 – Re Debenham deceased 1986
The court considered what special circumstances had to be shown to found a claim under the Act other than by a spouse: ‘It is also said on behalf of the charities that before I can make an order I will have to find that there were special . .

Cited by:

Cited – Re Pearce, Deceased, Pearce v Pearce CA 25-Jun-1998
The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
Cited – 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 andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
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 – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Ilott v 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 . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 May 2022; Ref: scu.144242

Re Malpass: ChD 1985

The testator gave an option to his son to purchase his farm ‘at the agricultural value thereof determined for probate purposes . . as agreed with the district valuer’. The district valuer would not participate in this valuation.
Held: The provisions for agreement with the district valuer were merely a matter of machinery. The testator’s intention as to the basis of valuation was clear. The court would therefore substitute effective and workable machinery, and directed an enquiry.

Judges:

Megarry VC

Citations:

[1985] Ch 42

Jurisdiction:

England and Wales

Cited by:

Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
Cited – Dutton and Dutton v Dutton and Brown ChD 3-Feb-2000
An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 May 2022; Ref: scu.186477

Chapman v Chapman: ChD 1985

The plaintiff had been awarded her costs in a probate action, but had then failed to commence proceedings for taxation in time. When her solicitors did proceed, they gave no notice. She appealed an award of nominal costs only.
Held: Order 3 rule 6 was general in its terms, and applied in such applications also. After a delay of more than three months, she should have given notice of her intention to apply for taxation. This was however only an irregularity. The defendant had been unable to show any prejudice from the delay, and the court would not infer any. The master’s order would be discharged. The solicitors charges on presenting the bill would however be automatically disallowed.

Judges:

Sir Robert Megarry VC

Citations:

[1985] 1 All ER 757, [1985] 1 WLR 599

Jurisdiction:

England and Wales

Cited by:

Cited – Pelling v Pelling CA 15-Jan-1997
The appellant wished to appeal orders for costs made against him in family proceedings. The respondent had filed her bill of costs out of time, with no explanation of the delay. He contended that there was no foundation for the court to exercise its . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 28 May 2022; Ref: scu.182891

Duke of Hamilton v The Lord Advocate: HL 10 Nov 1892

A testator conveyed to his trustees, inter alia, his whole moveable means and estate in Scotland which should belong to him at the time of his death, and after providing for payment of his debts he directed his trustees to make an inventory of the collection of ‘marbles, bronzes, objects of virtu, buhl, pictures, ornaments, china, and the library’ in his house, which articles were to remain vested in and to be held by them as part of his trust-estate, the liferent use thereof being permitted to his eldest son D, whom failing to the substitute heirs of entail entitled to succeed to the estate. After all his debts, and co., had been ‘completely paid and extinguished,’ the trustees were directed to divest themselves of the whole of his heritable and moveable estate, and dispone the same by deed of entail as follows-‘In the event of the liquidation of the said debts and obligations during the lifetime of D, the said trustees shall assign and make over to him the whole of the moveable estate hereby conveyed, and directed to be liferented as aforesaid.’ . .
D, by an arrangement with the creditors of the testator, liquidated his debts partly by payment and partly by taking upon himself the burden of the balance, but the art collection continued to be held by the trustees during his life.
In a claim by the Crown against the executor and general disponee of D for legacy and inventory duty upon this collection, as having been in bonis of D- held ( aff. the decision of the First Division of the Court of Session) that by the provisions of the trust-deed the art collection was to become the property of the heir in possession of the estate upon certain debts being extinguished, and these having been paid off during D’s life the collection vested in him, and that the defender was bound to lodge accounts of the personal estate and effects of the testator and of D in order that the legacy and inventory duties respectively remaining due thereon might be ascertained.

Judges:

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

Citations:

[1892] UKHL 138, 30 SLR 138

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 26 May 2022; Ref: scu.634561

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.

Citations:

[2001] EWCA Civ 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Appeal from – 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. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 23 May 2022; Ref: scu.135244

Hope v Hope: 12 Mar 1847

Distinction between directing an issue and giving liberty to bring an action at law to try a legal right. In the former case, application for a new trial must be made in this Court, when all the proceedings at law will be examined; but in the latter, application for a new trial must be made to the Court of law, and this Court will look merely to the result of the action. In the latter case also, if there has been a marriage at law, relief, if any, cannot be obtained, upon the case coming on upon the equity reserved, without a petition.

Citations:

[1847] EngR 326, (1847) 10 Beav 581, (1847) 50 ER 706

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 22 May 2022; Ref: scu.300942

Grant v Grant: 1870

Blackburn J said: ‘The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were used.’

Judges:

Blackburn J

Citations:

(1870) LR 5 CP 727

Jurisdiction:

England and Wales

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 May 2022; Ref: scu.450443

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 were, to the annoyance of the court, frustrated. Hearsay evidence is inadmissible on the issue of due execution.

Citations:

[1897] PD 40

Jurisdiction:

England and Wales

Cited by:

Cited – Parks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 May 2022; Ref: scu.213650

In Re White (Dennis) Deceased; White v Minnis and Another: CA 25 May 2000

A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that shares would be bought and sold at market value. The deceased partner could have been obliged to sign the accounts, in accordance with partnership practice, using that value, and so the historic cost was to be used not the market value.

Judges:

Chadwick LJ

Citations:

Gazette 25-May-2000, Times 10-May-2000, [2000] EWCA Civ 149

Links:

Bailii

Statutes:

Partnership Act 1890 27 32 33 39

Jurisdiction:

England and Wales

Citing:

Cited – Noble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Appeal from – White v Minnis and Another ChD 18-Jan-1999
On the dissolution of a partnership, the valuation of assets was to be in accordance with the partnership deed but in the absence of explicit guidance property was to be valued at the date of dissolution and not at an historic value used in . .
Cited – Coventry v Barclay 1863
Partners had conducted their practice over many years in a manner inconsistent with the spirit if not the exact letter of their partnership articles. Stock was to be taken every year, and the value entered into the books to be signed off by each . .
Cited – Pilling v Pilling 1865
. .
Cited – Hunter v Dowling CA 1893
The articles of partnership between the parties required an annual account. A retiring or deceased partner was to be paid out ‘at the amount standing to his credit in the last balance sheet which shall have been signed previously to the date of such . .
Cited – Thom’s Executrix v Russel and Aitken 1983
The court was asked as to how the value of the interest of a deceased partner was to be calculated.
Held: There had been prior dealings at book value as between the partners, and the payment of the deceased partner’s share was restricted to . .
Cited – Cruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .
Cited – Noble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Cited – Shaw v Shaw OHCS 1968
‘The authorities to which I was referred, including, in particular, Noble v Noble; Inner House, 28th January 1966 (unreported), and Cruickshank’s Trustees v Sutherland, satisfy me that, as a general principle, where in a partnership it is necessary . .
Cited – Clark v Watson 1982
Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that . .
Unpersuasive – Wilson v Dunbar Bank plc OHCS 1988
An agreement to the insertion of book values in a balance sheet prepared during the continuance of the partnership did not bind the deceased partner if that balance sheet fell to be used for the purpose of the ascertainment his share in the . .
Cited – Attorney-General v Boden 1912
There was a partnership between a father and his two sons. The sons were obliged to devote their whole time to the practice, the father only so much time as he wished. On his death the sons were to pay out to his estate the value of the capital but . .
Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate

Updated: 19 May 2022; Ref: scu.82291

In Re DWS, Deceased, In Re EHS, Deceased, TWGS (A Minor) v G and Others: CA 22 Nov 2000

The infant child of a deceased parent who had murdered the child’s grandparents, would not inherit on the intestacy. The grand-child was disinherited by his father’s act. His right to inherit was to inherit the share his deceased parent would have taken, and that parent was disinherited. The words of the Act were not ambiguous, and this appeared to be the direct intention of Parliament. The general preference of issue over collateral beneficiaries was displaced by the words of the statute.

Citations:

Times 22-Nov-2000, Gazette 30-Nov-2000, [2000] EWCA Civ 282, [2000] EWCA Civ 283

Links:

Bailii, Bailii

Statutes:

Administration of Estates Act 1925

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 May 2022; Ref: scu.81859

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 comfortable circumstances, on a good income from two businesses.
Held: The claim failed. A past lack of maintenance could not to be relied on for claims from estates under the Act. The dependency on the deceased for a claimant based upon having been dependent upon the deceased must immediately precede the death. For such a claim there must shown be some special circumstance, perhaps a moral obligation of the deceased towards him, before the first question can be determined in his favour.
As to Re Coventry: ‘It was established by the decisions of Oliver J and this court in re Coventry decd. that, on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour. Although the decisions were in terms confined to the case of a son, the principle of them is applicable no less to the case of a daughter and, with developments in the structure of society, instances of its application in such cases may become more common. In that case Oliver J was of the opinion that financial provision was reasonably required for the applicant’s maintenance. But his application failed because the deceased owed him no moral or other obligation and no other special circumstance was shown.’

Judges:

Lord Justice Nourse, Lord Justice Henry And Sir John May

Citations:

Gazette 16-Feb-1994, Times 03-Jan-1994, [1994] Ch 286, [1994] 3 WLR 67, [1994] 3 All ER 27, [1993] EWCA Civ 10

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Explained – 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 – Re Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Cited – Re Callaghan, deceased 1984
An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council . .

Cited by:

Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 May 2022; Ref: scu.81244

Hamlin v Hamlin: CA 1986

A plaintiff under the 1975 Act must show as against each defendant that where that defendant is out of the jurisdiction that the order for payment would be enforceable in the foreign land.

Judges:

Kerr LJ

Citations:

[1986] Fam 11

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 10

Cited by:

Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.545896

Re J(C): CoP 2012

Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will.

Judges:

Lush J

Citations:

[2012] WTLR 121

Statutes:

Mental Capacity Act 2005

Cited by:

Cited – NT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 May 2022; Ref: scu.510003

14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3: 1220

An assumpsit lies against an executor upon a collateral promise of the testator ; as upon the testator’s promise to the plaintiff, if he will marry his daughter, that he shall have as much for her portion as any other of his daughters had. Judged and affirmed in error. This judgment is against former opinions for a collateral promise not broken in the life of the testator.

Citations:

[1220] EngR 167, (1220-1623) Jenk 336, (1220) 145 ER 244 (D)

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

Re Hughes: 1943

Citations:

[1943] Ch 296

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450448

Harter v Harter: 1873

Judges:

Hannen P

Citations:

[1873] LR 3 P and D 11

Cited by:

Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – 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: 18 May 2022; Ref: scu.450180

Guardhouse v Blackburn: 1866

Judges:

Lord Penzance

Citations:

[1866] LR 1 P and D 109

Cited by:

Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450178

Parfitt v Lawless: 1872

When a court considers the preparation and execution of a will, there can be no presumption of undue influence.

Citations:

[1872] LR 2 P and D 462

Cited by:

Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450182

In Re Vos; Dick v Kendall Freeman: 2006

The deceased had been a name at Lloyds and died insolvent. The court considered the meaning and effect of regulation 12 of the 1986 Order.
Held: The provision meant what it said, with the result that if an Insolvency Administration Order was made at any time, all dispositions since the death of the deceased were prima facie void, even if made before the petition, and no matter how long the intervals between death and the presentation of the petition, and between presentation and order.

Judges:

Chief Registrar Baister

Citations:

[2006] BPIR 348

Statutes:

Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999) 12

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 18 May 2022; Ref: scu.442539

Re Vautier: 2000

(Royal Court of Jersey) The court considered a request for the rectification of a will: ‘To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power in the court to rectify by altering or adding to the wording of the will. The law of New Zealand has recognised a similar power to delete. It has not yet recognised a power to rectify by other alterations although in the case of McConagle [McConagle v. Starkey [1997] 3 NZLR 635], the court indicated that it was supportive of such an approach. In Canada, the courts have exercised a power to rectify a will by altering the wording but the initial decision could be said to be based on a misunderstanding of Guardian Trust.’

Citations:

2000 JLR 351

Cited by:

per incuriam – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.428468

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

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

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Lloyd v Harvey: 23 Jun 1832

The testator, upon the marriage of a daughter, entered into a bond for the payment of pounds 5000 within six months after his decease to the trustees of his daughter’s settlement, the interest to be paid to the husband for life ; and, after his decease, if the wife survived him and there were children of the marriage, and pounds 1000, part of the pounds 5000, to be paid to the wife, and the remainder to be applied for the use of the children of the marriage ; but if there were no children, pounds 2000 to be paid to the wife, and the remainder of the pounds 5000 to be paid to the executors and administrators of the husband; and in case the husband survived the wife, and there were no children, then the whole of the pounds 5000 to the husband. The testator afterwards made his will, and gave his daughter pounds 5000, stating it to be in addition to what he had secured upon her marriage. About five years afterwards the testator executed a deed whereby he covenanted that his executors should pay to the trustees, within six months after his death, the sum of pounds 5000 upon the trusts of the settlement. Parol evidence of the declarations of the testator was admitted to prove that he did not intend a double portion. Quaere whether the different interests of the husband, wife, and children in the legacy of pounds 5000, and in the sum of pounds 5000 given by the deed, would repel the common presumption against double portions?

Citations:

[1832] EngR 710, (1832) 2 Russ and My 310, (1832) 39 ER 412

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 18 May 2022; Ref: scu.319657

Saunders v Vautier: 5 Jun 1841

Citations:

[1841] EngR 765, (1841) Cr and Ph 240, (1841) 41 ER 482

Links:

Commonlii

Citing:

See Also – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.308943

Burrows v Walls: 10 Mar 1855

A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency,

Citations:

[1855] EngR 294, (1855) 5 De G M and G 233, (1855) 43 ER 859

Links:

Commonlii

Cited by:

Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.292216

Cattermole v Prisk: 2006

Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will.

Judges:

Norris J

Citations:

[2006] 1 FLR

Jurisdiction:

England and Wales

Cited by:

Cited – Carr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.277385

Re Smith: 1880

Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal.

Citations:

(1880) 42 Ch D 302

Cited by:

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

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.267735

Holtham v Arnold: 1986

The court considered how it might decide between the competing claims of different family members to have control over the burial of the deceased. Hoffmann J said: ‘there seems to be no doubt that Mrs Holtham on the one side and the family on the other both feel very strongly that it is their right and duty to conduct the funeral. I think it is virtually impossible for a court to express any moral judgment as between them. The relationship between a man in the position of Mr Arnold and Mrs Holtham on the one hand and his family on the other are in the nature of things extremely difficult for an outsider to penetrate . . Indeed, I think it is a matter on which it would almost be presumptuous to try to explore. In those circumstances the only course really open to the court is to decide the matter according to law.’

Judges:

Hoffmann J

Citations:

[1986] 2 BMLR 123

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.267632

Anthony and Another v Donges and Others: ChD 22 Jul 1998

A clause in a testator’s will leaving to his widow ‘such minimal sum as she might be entitled to by way of maintenance under English Law’ was void for uncertainty. It tried to place the judge in the position of an arbitrator, and did so without his consent, and would not be allowed.

Citations:

Times 22-Jul-1998, [1998] 2 FLR 775

Wills and Probate

Updated: 17 May 2022; Ref: scu.77810

In re Groos Estate: 1904

Citations:

[1904] P 269

Statutes:

Wills Act 1861 3

Cited by:

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

Wills and Probate

Updated: 17 May 2022; Ref: scu.249364

Escritt v Escritt: 1981

Citations:

[1982] 3 FLR 280

Statutes:

Administration of Justice Act 1975 4

Jurisdiction:

England and Wales

Cited by:

Distinguished – In Re the Estate of Ronald Ernest Chittock (Deceased); Chittock v Stevens and Others ChD 5-Apr-2000
A widow had thought that she was to receive the bulk of her husband’s estate by survivorship, but discovered, only out of time and after the six months limit, that this was not the case. She applied for leave to apply out of time to rectify the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 May 2022; Ref: scu.243300

In re Salmon (Deceased): 1981

The time limit under the 1975 Act is ‘a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the Court to exercise its statutory discretion to extend the time.’

Judges:

Megarry Ch

Citations:

[1981] Ch 167

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – In Re the Estate of Ronald Ernest Chittock (Deceased); Chittock v Stevens and Others ChD 5-Apr-2000
A widow had thought that she was to receive the bulk of her husband’s estate by survivorship, but discovered, only out of time and after the six months limit, that this was not the case. She applied for leave to apply out of time to rectify the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 May 2022; Ref: scu.243299

Bryan v White: 1850

The court considered the proper execution of a will: ”Attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts’.

Judges:

Dr. Lushington

Citations:

(1850) 2 Rob Ecc 315

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.223791

Hudson v Parker: 1844

The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness ‘shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary’. He pointed to the statutory requirement of attestation in addition to subscription and gave as the meaning of ‘attest’ to bear witness to a fact: ‘I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say ‘that no form of attestation shall be necessary’, still the witnesses must attest, although the outward work of attestation may be subscription only’.

Judges:

Dr. Lushington

Citations:

(1844) 1 Rob Ecc 14

Statutes:

Wills Act 1837

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.223790

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 residence. The court reduced the specific legacy and made an order transferring the matrimonial home to the widow absolutely, thereby awarding her approximately one half of the value of the estate. The marriage had been very long, and the assets held in the husband’s name.
Held: Whilst the amount the claimant would have received on a divorce was only one factor, it can be a most important one. Too great a concentration on deeds and resources blurs the distinction between sections 1(2)(a) and (b). Having noted that there were sufficient assets in the estate to have provided for both parties on a divorce and that on divorce the court would have been looking for a clean break and that the case did not involve inherited assets there was stated to be no apparent reason why the court should depart from an equal division of the assets. It was stated that whether the divorce court would have awarded the applicant the matrimonial home or whether it would have sought to achieve equal division by some different route would have depended upon the needs and wishes of the parties.

Judges:

John Behrens

Citations:

Unreported, 26 January 2001, (2001) WTLR 493

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Approved – 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 – Stead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
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 by:

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

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.213640

Re Beech: 1923

Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: ‘The contention is that if a will does not have the effect intended the testator cannot be said to have known and approved its content. I think that that contention is fallacious and based on a confusion between the terms and the effect of the document. A testator cannot give a conditional approval to the words which had been put in his intended will by himself or by another for him. He cannot say ‘I approve those words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them’. He must find, or employ others, to find apt words to express his meaning; and if knowing the words intended to be used he approves and executes the will then he knows and approves the contents of his will and all the contents even though such approval may be due to a mistaken belief of his own or to honestly mistaken advice from others as to their meaning and legal effect: Morrell v Morrell 7PD 68′.

Judges:

Salter J

Citations:

[1923] P 46

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – In the Estate of Knibbs, deceased. Flay v Trueman 1962
Wrangham J said: ‘As Salter J said in Beech’s case: ‘I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide . .
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: 16 May 2022; Ref: scu.214015

Vaughan v Mark of Headfort: 1840

Eccentricity or irrationality are not enough to deprive someone of the freedom ot capacity to make a valid will. ‘Every testator is free to adopt his own nonsense’

Judges:

Shadwell VC

Citations:

(1840) 10 SIM 639

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.214014

Re Hammersley: 1965

A court will not speculate as to a testator’s intentions if they cannot be ascertained.

Citations:

[1965] Ch 481

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.198159

Davis v Davis: CA 1993

The deceased had left his widow a life interest in his residuary estate, with power for his trustees to purchase a house for her occupation, which they had duly exercised. The essential question was whether, as the widow claimed, she should be awarded an absolute interest in the house, a question answered in the negative: ‘The Act of Parliament makes plain that the court’s powers only arise if the court is satisfied that the disposition of the deceased’s estate by his will fails to make reasonable financial provision for the plaintiff. It seems to me that the plaintiff has manifestly failed to cross the threshold. It is not for this court to rewrite the testamentary provisions of deceased persons lightly. If in this case it can be said that the provision of a life interest in the entire residuary estate is not reasonable provision then I think that could be asserted in almost any case in which the testator elects to make provision for his surviving spouse by that means.’

Judges:

Thorpe J

Citations:

[1993] 1 FLR 54

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2

Jurisdiction:

England and Wales

Cited by:

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.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.196906

Clarke v Bruce Lance and Co: CA 1988

The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Balcombe LJ said: ‘If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ He rejected that argument.
. . And ‘Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator’s death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor.’

Judges:

Balcombe LJ

Citations:

[1988] 1 All ER 364, [1988] 1 WLR 881, [1989] ANZ Conv R 25, (1988) 85 LSG 37

Jurisdiction:

England and Wales

Citing:

Distinguished – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .

Cited by:

Cited – Dean v Allin and Watts (a Firm) CA 23-May-2001
An unsophisticated lender running the business of a car mechanic wanted to lend money to borrowers on the security of real property owned by an associate of the borrowers. The borrowers instructed the defendant solicitors to give effect to this . .
Cited – Rind v Theodore Goddard (A Firm) and others ChD 11-Mar-2008
. .
Cited – Matthews v Hunter and Robertson Ltd SCS 11-Jun-2008
. .
Cited – Vinton and Others v Fladgate Fielder (A Firm) and Another ChD 30-Apr-2010
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 16 May 2022; Ref: scu.188810

Gurney v Gurney: 15 Mar 1855

The will gave first a legacy then divided the residue between two. The will was witnessed correctly, but the two residuary beneficiaries witnessed a later codicil revoking the prior legacy.
Held: Although the revocation did increase the residue, the original gifts of residue had been validly made.

Citations:

(1855) 3 Drew 208, [1855] EngR 306, (1855) 61 ER 882

Links:

Commonlii

Statutes:

Wills Act 1937 15

Jurisdiction:

England and Wales

Wills and Probate

Updated: 16 May 2022; Ref: scu.182731

In re Rees: CA 1950

The testator appointed a friend and his solicitor as executors and trustees of his will. He devised and bequeathed the whole of his property ‘(subject to payment of my funeral and testamentary expenses and debts) unto my trustees absolutely they well knowing my wishes concerning the same and I direct them to permit my brother . . to have and receive the rents and profits of my property Vardre Clydach . . during his lifetime.’ The will also included a charging clause authorising the solicitor and any professional person who might become an executor or trustee thereof to charge for professional services. The testator told his trustees when he made his will that he wished them to make certain payments out of his estate and to retain any surplus for their own use. After the payments directed by the testator had been made, a substantial sum remained in the hands of the surviving trustee. Vaisey J had held that the part of the estate not required to give effect to the testator’s wishes was undisposed of by his will and passed as on an intestacy.
Held: The solicitor’s appeal was dismissed. On the true construction of the will the gift was a fiduciary one to the trustees and not a gift to them upon a condition; that evidence was not admissible to show that the trustees took not a trust estate but a conditional gift; and that, accordingly, subject to the specific purposes indicated by the testator, the estate was undisposed of by the will and passed as on intestacy.
Lord Evershed MR said: ‘It is right to say that . . the cases show that slight indications may well suffice to persuade the court that the intention of the testator was not to create a trust estate in the devisee but to give him a conditional gift’. He then reasoned that: ‘I think that in this context, and in this will, the word ‘absolutely’ should be construed not as conferring a beneficial interest but as defining the extent of the interest in the property given, so as to confer upon the trustees the property given to them – and I borrow the language used by Cohen LJ during the argument – free of any fetter which would prevent their carrying out his express wishes.’ . . ‘But the matter does not end there, because the next phrase is, after referring to his wishes, ‘and [I] direct them to permit my brother . . to have and receive the rents . . ‘ [Counsel] said that the use of the word ‘permit’ indicated something less than the obligation of a trust; but the phrase is not merely ‘to permit’ but ‘I direct them to permit.’ I think that that is pre-eminently language which is apt to impose the obligation of trusteeship.’ . . ‘In any case, if so far the balance be a nice one between the two alternatives, we then have to consider the effect of cl. 4, the charging clause, which is the longest clause in the will. I do not want to over-emphasize the significance of it. I have already said that this is pre-eminently a lawyer’s will; and none but a lawyer, certainly, would have inserted a clause in this language. But it goes somewhat further than that, for on [Counsel’s] construction the only possible effect that this substantial clause, occupying, as I say, about a third of the whole document, could have, would be to enable the plaintiff, the solicitor, to throw upon his co-trustee and supposed co-beneficiary, Tom Hopkins, one half of the costs which the plaintiff’s firm would charge for carrying out the duties imposed on them – a result which I conceive would be the last thing that the plaintiff could have intended when he drew the will, or the testator when he executed it. I therefore come to the conclusion, agreeing with the judge on the first point, that this will, properly interpreted, confers on the two trustees an estate on trust and not a conditional gift.’
He then considered the second question raised by the appeal, namely whether evidence was admissible to show that, although the form of the will on its proper reading created only a trust estate in the trustees, it was the intention of the testator that they should take a beneficial interest. The Court of Appeal agreed with Vaisey J that such evidence was inadmissible, even if this might result in ‘having to come to a conclusion which probably defeated the wishes of the testator’.
Lord Evershed MR then observed: ‘in the general public interest it is not to be forgotten that Parliament has laid it down that prima facie a will disposing of the property of a deceased person must follow certain strict forms. These courts have also been very insistent on the importance of the principle that those who assume the office of trustees should not, so far as they fairly can prevent it, allow themselves to be in a position in which their interests and their duties conflict. This is a case in which the will, as I have said, was drawn by a solicitor, or by a member of a solicitor’s firm, and the claim is that that solicitor is entitled, either absolutely or jointly with another, to the whole beneficial interest. In the general public interest it seems to me desirable that if a testator wishes his property to go to his solicitor and the solicitor prepares the will, that intention on the part of the testator should appear plainly on the will and should not be arrived at by the more oblique method of what is sometimes called a secret trust.’

Judges:

Lord Evershed MR, Cohen, Asquith LJJ

Citations:

[1950] 1 Ch 204

Cited by:

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.535826

In re Gansloser’s Will Trusts: CA 1952

A 1929 will created a trust in favour of the testator’s widow’s ‘relatives’.
Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the beneficiaries are to be ascertained at the death of the person in question, but also found an exception to the principle, applicable here, holding that the relatives were to be ascertained at the testator’s death. That exception resulted in both the law and the facts being ascertained at the death of the testator, before the death of the widow whose relatives were beneficiaries. It also resulted in the facts being ascertained at 1929 under pre-1926 law, a statute of King Charles II.

Judges:

Lord Evershed MR

Citations:

[1952] Ch 30

Jurisdiction:

England and Wales

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.519435

In re Raven; Spencer v National Association for the Prevention of Consumption and Tuberculosis: 1915

Extrinsic evidence of the identity of a beneficiary can only be admitted where there is a description applying indifferently to more than one person or society. It was contrary to public policy to accept wording in a will which purported to oust the jurisdiction of the court.

Citations:

[1915] 1 Ch 673

Cited by:

Cited – Creasey and Another v Sole and Others ChD 24-May-2013
The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.510140

Casimir v Alexander: 2001

The father had given his now elderly daughter a house. The parties disputed whether the gift operated as a portion.
Held: While such a substantial gift was capable of being a portion, there was evidence that the father regarded his daughter as having ‘earned’ the gift through her long years of caring for him and his wife.

Citations:

[2001] WTLR 939

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.510023

Re Quinton Dick: 1926

Citations:

[1926] Ch 992

Jurisdiction:

England and Wales

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.450447