Category: Wills and Probate

Worby, Worby and Worby v Rosser: CA 28 May 1999

Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor.
Held: The estate had suffered no proven loss. A solicitor, following his client’s instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants.

Judges:

Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick

Citations:

Times 09-Jun-1999, Gazette 16-Jun-1999, [1999] EWCA Civ 1520, [2000] PNLR 140

Jurisdiction:

England and Wales

Citing:

Cited – Wilkinson v Corfield PD 26-Jan-1881
A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. . .
Cited – Sutton v Drax 1815
. .
Cited – Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
Cited – Carr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Cited – Lindop v Stuart Noble and Sons Ltd OHCS 25-Jun-1998
In Scottish receivership an employee was not entitled to claim for preference of payment of claim for wages for absence of notice when the company went into receivership. Scottish receivership distinct process. . .

Cited by:

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

Professional Negligence, Wills and Probate, Legal Professions

Updated: 21 January 2023; Ref: scu.146435

Samuel v Samuel and Others: ChD 17 Dec 2018

By an application notice the First Defendant, Syleta Monica Susan Samuel, applies for an order that a probate claim brought by her sister, Merlina Jacqueline Samuel, be struck out as an abuse of process pursuant to CPR r 3.4(2)(b). Shortly stated, the basis for the application is that Merlina was a party to a probate claim brought by their brother Christopher in 2012 seeking substantially the same relief as that now sought by Merlina and that Merlina could and should have sought the relief she is now seeking in those earlier proceedings.

Judges:

Teverson M

Citations:

[2018] EWHC 3513 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 3.4(2)(b)

Jurisdiction:

England and Wales

Wills and Probate

Updated: 21 January 2023; Ref: scu.632195

Kayll v Rawlinson: ChD 2010

The parties disputed the validity of a will.
Held: (obiter) David Richards J said that because it was common ground that the terms of the attestation clause did not reflect the manner in which the signing of the will by the testator had been witnessed, the presumption of due execution could not arise from the attestation clause.

Judges:

David Richards J

Citations:

[2010] EWHC 1269 (Ch)

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 31 December 2022; Ref: scu.652336

Watts v Watts: CA 21 Dec 2015

The barrister for one of the parties was junior Counsel to the fee-paid judge in another case, which they had been working on together for the past year. The opponent appealed a refusal of the judge to recuse herself.
Held: The appeal failed.
Sales LJ concluded: ‘i) The notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from: Taylor v Lawrence [2001] EWCA Civ 119, [33]-[36]; Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, [61]-[63]. These aspects of the legal culture of the Bench and legal professionals are not undermined by the fact that some litigation is now funded by means of CFAs;
ii) The notional fair-minded and informed observer would understand that a part-time judge’s approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring;
iii) . . The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 WLR 370. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself. Similarly, in Resolution Chemicals at [46] this court referred to the idea that the reasoning in Lawal ‘would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties’ as something which it regarded as obviously untenable;
iv) As both the Taylor v Lawrence judgments and these other decisions indicate, relationships between members of the Bar, or between members of the Bar and their clients, can be much closer than that between the deputy judge and counsel for the respondent in the present case, yet because the relationships are mediated through known professional standards no appearance of bias arises.’

Judges:

Sales LJ, Cobb J, Sir Stanley Burnton

Citations:

[2015] EWCA Civ 1297

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ameyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 31 December 2022; Ref: scu.558065

Robert Burgh An Infant, By His Guardian, Executor of Eleanor Burgh, Executrix of Robert Burgh, Plaintiffs; Humphrey Davis And Others, Defendants: 1674

Joint Executors, one of them died and the Executor of the Executor of him who was dead, brought a Bill to be relieved against an Action of Trover brought by the surviving Executor, who demurred for that the personal Estate of the Testator belonged to him as surviving Executor.

Citations:

[1674] EngR 65, (1674) Fin H 171, (1674) 23 ER 94 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 20 December 2022; Ref: scu.406064

In Re Thurlow, Decd Riddick and Another v Kennard and Others: ChD 7 Jul 1971

cw Will – Construction – ‘Descendants’ – Residuary estate to be divided between descendants of late mother and of late father – Modern legal and ordinary meaning of ‘descendants’ – Whether ‘descendants’ include collateral relations
The will stated that the residuary estate should be divided between ‘the descendants’ of the deceased’s late parents. How was the phrase to be interpreted? Only relations of the parents’ brothers and sisters existed.
Held: In modern society, the terms descendants must be taken to refer to the children of the person, and did not include collateral relations. The residuary estate passed as on intestacy.

Judges:

Pennycuick VC

Citations:

[1971] 3 WLR 811

Links:

lip

Jurisdiction:

England and Wales

Citing:

Cited – Best v Stonehewer 1864
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 December 2022; Ref: scu.177401

Bowles v Jackson: 28 Apr 1854

A soldier under orders to proceed from his station in one Indian presidency to take part in the war going on in another; and making his will only two clays before he commenced the march, is not entitled to the privilege of a military testament.

Citations:

[1854] EngR 432, (1854) 1 Sp Ecc and Ad 294, (1854) 164 ER 170

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Armed Forces

Updated: 20 December 2022; Ref: scu.293289

Ottaway v Norman: ChD 1971

Proof required for mutual wills claim

The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her will in a way which did not reflect the intention. On her death, the plaintiffs sought a declaration that the property was held on trust for them.
Held: Considering secret trusts and the doctrine of mutual wills: ‘It will be convenient to call the person upon whom such a trust is imposed the ‘primary donee’ and the beneficiary under that trust the ‘secondary donee.’ The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiescence.’
Brightman J interpreted Lord Westbury’s statement in McCormick as meaning that if a will contains a gift in absolute terms that ‘clear evidence is needed before the Court will assume that the testator did not mean what he said’ and the standard of proof ‘is analogous to that ‘which the court requires before it will rectify a written instrument, for there again a party is saying that neither meant what they have written’.

Judges:

Brightman J

Citations:

[1972] Ch 698, [1971] 3 All ER 1325

Jurisdiction:

England and Wales

Citing:

Cited – McCormick v Grogan HL 23-Apr-1869
C made a will leaving his property to G, and appointed him executor. When about to die C sent for G and in a private interview told him of the will, and G asked whether that was right. C said that he would not have it otherwise. C then told G where . .

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith CA 21-Nov-1997
. .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 20 December 2022; Ref: scu.183794

Healey v Brown: ChD 25 Apr 2002

The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: ‘section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable.’ and ‘as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land.’ If section 2 did apply the documents would not satisfy it, and ‘section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement.’ However the doctrine of part performance could in this case be applied to impose a trust on the defendant.

Judges:

David Donaldson QC HHJ

Citations:

[2002] 19 EG 147, [2002] EWHC Ch 1405, (2002) 19 EG 147

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Re Heys 1914
Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will . .
Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Horton v Jones 1935
(High Court of Australia) A claim by plaintiff against the personal representatives of her ex-employer for breach of an oral agreement by him to make a will leaving her property which would include interests in land failed on the ground that it fell . .
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Maddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Ottaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .

Cited by:

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

Wills and Probate, Land, Equity

Updated: 12 December 2022; Ref: scu.246958

Dennis’s Trustees v Dennis and Others: HL 19 May 1924

A testator, who was survived by his wife, left as part of his estate certain stocks and shares, some of which stood in the joint names of himself and his wife, and others in the joint names of himself and his wife and the survivor. All these investments had been made out of the testator’s own means, and the titles thereto were found in his repositories after his death, there having been no gift or delivery of them to his wife during his lifetime. The testamentary writings, which consisted of a trust-disposition and several codicils, did not contain any express revocation of prior special destinations. The last codicil, however, which was subsequent in date to the investments to which this appeal related, was practically a new settlement, and contained a general conveyance of the testator’s whole estate, and a clause which gave to his niece an option to purchase after the death of his wife any shares held by him at the time of his death, or held by his wife at the time of her death, at a valuation not greater than the cost price, and specified as shares which she might so acquire, certain shares among which were included some of the shares standing in the names of himself and his wife, and of himself and his wife and the survivor. The enumeration was followed by the words ‘or others if preferable.’
Held (aff. the judgment of the First Division) that, as the right of purchase conferred on the niece by the last codicil was irreconcilable with the special destinations in the share certificates, the destinations contained therein were revoked by the general conveyance.

Judges:

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

Citations:

61 SLR 484, [1924] UKHL 484

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 09 December 2022; Ref: scu.631559

Wilson v Lassman: ChD 7 Mar 2017

Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and is valid. The court considered the presumption of due execution of a will: ‘where the will contains . . an attestation clause, ‘the strongest evidence’ is required to rebut the presumption of due execution . . the importance and weight to be attached to that presumption is both principled and practical. It reflects, in terms of practicality, the reality that those attesting a will may well be called upon to recollect the circumstances of execution a very long time after attestation has taken place and where memories of facts which are not, to the attesting witnesses, of any particular importance may well have diminished, or disappeared. In terms of principle, it leans in favour of giving effect to the validity of a will, which, in its turn, gives effect to the testator’s intentions, rather than, potentially negating those intentions.’
Here, it was common ground that the attestation clause did not accurately reflect that which occurred. The will was not signed by the deceased in the presence of the attesting witnesses. The will was already signed by the deceased before being provided by the deceased to the attesting witnesses to sign as witnesses and, therefore, that even if the circumstances of their attestation constitute a valid execution of the will it is a different form of due execution to that asserted in the attestation clause. The presumption could not be relied upon.
However, the evidence did establish that the signed will was produced to the witnesses and the signature acknowledged.

Judges:

Bowles M

Citations:

[2017] EWHC 85 (Ch)

Links:

Bailii

Statutes:

Wills Act 1837 9, Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Wright v Rogers 1869
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .
Cited – Kayll v Rawlinson ChD 2010
The parties disputed the validity of a will.
Held: (obiter) David Richards J said that because it was common ground that the terms of the attestation clause did not reflect the manner in which the signing of the will by the testator had been . .
Cited – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .

Cited by:

Cited – Wrangle v Brunt and Another ChD 6-Jul-2020
Challenge to purported wills as forgeries.
Held: Though the will was not executed as described in the attestation clause: ‘On the totality of the evidence before me, I am satisfied Dean understood and approved what was in the will when it was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 December 2022; Ref: scu.579955

Barrett v Bem and Others: CA 31 Jan 2012

Under section 9(a) of the Wills Act 1937, as amended, the court should not find that a will has been signed by a third party at the direction of the testator unless there is a positive and discernible communication (which may be verbal or non-verbal) by the testator that he wishes the will to be signed on his behalf by the third party

Judges:

Maurice Kay P, Hughes, Lewison LJJ

Citations:

[2012] EWCA Civ 52, [2012] 2 All ER 920, [2012] WTLR 567, [2012] 3 WLR 330, [2012] WLR(D) 17, [2012] Ch 573

Links:

Bailii

Statutes:

Wills Act 1937 9(a)

Jurisdiction:

England and Wales

Citing:

Appeal from – Barrett v Bem and Others ChD 19-May-2011
The court retried an action disputing the validity of the will, new evidence having emerged post trial. The doubtful signature was explained by witnesses who said that he had been assisted.
Held: The matter might have been handled better, but . .

Cited by:

Cited – Wrangle v Brunt and Another ChD 6-Jul-2020
Challenge to purported wills as forgeries.
Held: Though the will was not executed as described in the attestation clause: ‘On the totality of the evidence before me, I am satisfied Dean understood and approved what was in the will when it was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 December 2022; Ref: scu.450518

Cowderoy v Cranfield: ChD 13 Oct 2011

Judges:

Morgan J

Citations:

[2011] EWHC 2628 (Ch), [2011] WTLR 1741

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Principal judgment – Cowderoy v Cranfield ChD 24-Jun-2011
The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 09 December 2022; Ref: scu.446008

In Re Bernstein: ChD 2008

The testator had left andpound;100,000 legacies to his grandchildren at 25. In order to achieve a tax saving. The court was asked to approve an arrangement under which the individual legacies were replaced by interest in a fund in which the widow had a short-term interest.
Held: There is jurisdiction under the 1958 Act to vary the trusts of an unadministered estate.
Blackburne J said: ‘One of the consequences of the arrangement is that the grandchildren take absolute interests on the termination of the widow’s income and interest, with the result that they will be able to call for payment of the capital of their respective shares as soon as they reach their majority as against the contingency of reaching 25 under clause 5 of the will prior to variation. This might not be considered necessarily for their benefit’

Judges:

Blackburne J

Citations:

Unreported 2008, [2008] EWHC 3454(?)

Statutes:

Variation of Trust Act 1958

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 09 December 2022; Ref: scu.448123

Barrett v Bem and Others: ChD 19 May 2011

The court retried an action disputing the validity of the will, new evidence having emerged post trial. The doubtful signature was explained by witnesses who said that he had been assisted.
Held: The matter might have been handled better, but the testator knew the contents of his will, and signed it.

Judges:

Vos J

Citations:

[2011] EWHC 1247 (Ch), [2011] 3 WLR 1193, [2011] WTLR 1117

Links:

Bailii

Statutes:

Wills Act 1837 9(a)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Barrett v Bem and Others CA 31-Jan-2012
Under section 9(a) of the Wills Act 1937, as amended, the court should not find that a will has been signed by a third party at the direction of the testator unless there is a positive and discernible communication (which may be verbal or . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 December 2022; Ref: scu.440137

Re Thoars (Dec’d); Reid v Ramlort Ltd: ChD 2003

The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The declaration of trust was a transaction at an undervalue. The policy was held on trust to return the premiums to the company, with the balance upon trust for the deceased’s insolvent estate.

Judges:

Judge Norris QC

Citations:

[2003] EWHC 1999 (Ch), [2003] BPIR 1444

Jurisdiction:

England and Wales

Citing:

Preliminary hearing – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .

Cited by:

Appeal from – Ramlort Ltd v Michael James Meston Reid CA 8-Jul-2004
The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Wills and Probate

Updated: 09 December 2022; Ref: scu.213657

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’

Citations:

Gazette 15-Jul-1998, Times 10-Jun-1998

Jurisdiction:

England and Wales

Citing:

Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Wills and Probate

Updated: 09 December 2022; Ref: scu.80378

Smith v Tebbitt: 1867

Judges:

Sir JP Wilde

Citations:

(1867) 1 PandD 398

Jurisdiction:

England and Wales

Cited by:

Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 December 2022; Ref: scu.421020

Tugwell v Heyman: 1812

Where executors in an estate do not make arrangements for the funeral of the deceased, but have sufficient assets to do so, they are responsible to indemnify any other person arranging for a proper and proportionate funeral under what is considered to be an implied promise.

Citations:

(1812) 3 Camp 298

Jurisdiction:

England and Wales

Wills and Probate

Updated: 07 December 2022; Ref: scu.241536

In re Gardner: 1920

A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.

Citations:

[1920] 2 Ch 523

Jurisdiction:

England and Wales

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 07 December 2022; Ref: scu.183795

Taylor v Popham: 1782

PT, in his lifetime granted two annuities to his son and there being subsisting accounts between them by his will he gave him an annuity of andpound;600 on condition that he should within three months execute a release of all demands on his estate. The release tendered including the two annuities granted during his life, PT the son did not forfeit his annuity of andpound;600 by refusing to execute it, but a release settled by the master omitting those annuities being tendered and refused.
Held: He had forfeited the annuity under the will.

Citations:

(1782) 1 Bro CC 168, 28 ER 1059 LC

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: 07 December 2022; Ref: scu.179722

Naismith v Boyes: HL 28 Jul 1899

A testator, by a settlement disposing of his whole estate, made certain provisions for his wife and children, subject to the declaration that these provisions should be in full of their legal claims.
The wife and children accepted the provisions of the settlement.
By the death of the residuary legatees before the period of vesting provided by the settlement part of the estate fell into intestacy.
Held (aff. judgment of the First Division, dub. Lord Davey) that the legal rights of the wife and surviving child were only excluded in so far as conflicting with the settlement, and were not excluded from estate falling into intestacy.

Judges:

Lord Chancellor (Halsbury), Lord Shand, and Lord Davey

Citations:

[1899] UKHL 973, 36 SLR 973

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 06 December 2022; Ref: scu.631838

In Re Papillon (deceased): ChD 2006

Mr Guy Newey QC considered the presumption of due execution when propounding a will: ‘The burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the will . . In certain circumstances, however, the maxim omnia praesumuntur rite esse acta will apply and due execution will be presumed.’

Judges:

Mr Guy Newey QC

Citations:

[2006] EWHC 3419 (Ch), [2006] All ER (D) 297

Jurisdiction:

England and Wales

Cited by:

Cited – Lim v Thompson ChD 14-Oct-2009
The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 December 2022; Ref: scu.421599

Rex v Stewart: 1840

It is the duty at common law for a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other arrangements can be made.

Citations:

[1840] 12 Ad and E 773

Jurisdiction:

England and Wales

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: 06 December 2022; Ref: scu.267633

Saunders v Garrett: 2005

S and G lived together in a same-sex relationship. They owned the house they lived in and another as tenants in common. G owned other properties which provided the couple with an income. The will of G did not leave S in a position to complete development of the properties, and he applied for reasonable financial provision under the 1975 Act. He was out of time.
Held: The claim could proceed despite the delay. The couple were a family unit. However the claim itself failed. Sections 1(1)(ba) and 1(A) of the 1975 Act were discriminatory, and in breach of the claimant’s convention rights, and they needed to be read in such a fashion as made them compliant which was achieved by reading the provision for cohabitants living together as husband and wife as if they were living together as husband and wife. Notwithstanding the claimant’s difficulties, the testator’s other family commitments meant that the actual provision made for the claimant was reasonable. The duty toward the claimant did not extend to making capital provision available to repair the house. A claimant whose claim was considered under the earlier subsection could not use section 1(e) as a fallback position. G and S formed a family unit under art 8. Art, but that could not be used to create a right to peaceful possession of the property enjoyed by the couple before the death. Claims under the 1975 Act were not a right to property.

Citations:

[2005] WTLR 749

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 December 2022; Ref: scu.229845

Black v Watson: 1841

Where a testator leaves more than one testamentary writing they are to be read together so far as possible as if they formed one deed.

Citations:

(1841) 3 D 522

Jurisdiction:

Scotland

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 December 2022; Ref: scu.187509

Miller’s Trustees v Miller: 1958

The issue was whether the rule of conditio si institutus sine liberis decesserit operated and, if so, whether two nephews who predeceased the date of a codicil which the testator made to his trust disposition and settlement were to be regarded as institutes instead of the persons whom he had instituted by his original settlement, in other words whether it is necessary to take into account a codicil which does not alter or affect the relevant provisions in the original trust disposition and settlement. All that the testator did by his codicil was to vary the administrative provisions of the settlement by appointing new trustees and executors, as all but one of the persons named in the settlement had died. The codicil ended with the words ‘and with these alterations I confirm my said trust disposition and settlement.’
Held: The answer depended on which date was to be taken as the critical date – the date of the trust disposition and settlement which he executed in 1936, or the date of the codicil which he made in 1946. Rejecting the argument that the effect of the quoted words was that 1946 was the crucial date for the purposes of the conditio. It was a highly technical and unrealistic argument, as the effect of the codicil was that the original beneficial provisions remained intact. It was a question of the intention of the testator. As the testamentary provisions were not innovated upon in any way by the codicil but referred to in it only in order to confirm them, the testator showed no intention of telling his trustees that they were to treat his testamentary provisions as if they were made for the first time in 1946.

Judges:

Lord Patrick, Lord Justice-Clerk Thomson

Citations:

1958 SC 125

Jurisdiction:

Scotland

Cited by:

Applied – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 December 2022; Ref: scu.187510

Burns v Campbell: 1951

An action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.

Citations:

[1952] 1 KB 15, [1951] 2 All ER 965

Jurisdiction:

England and Wales

Cited by:

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

Limitation, Wills and Probate

Updated: 05 December 2022; Ref: scu.415961

Bibin v Walker: 1768

The will contained a clause devised land ‘which he had before given to A’ over to B in the happening of an event.
Held: The clause operated as a devise by implication to A.

Citations:

(1768) Amb 661, [1768] 27 ER 429

Jurisdiction:

England and Wales

Wills and Probate

Updated: 05 December 2022; Ref: scu.272308

Hohler v Aston: 1920

A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance
Held: The action succeeded. Sargant J: ‘the third parties, of course, cannot themselves enforce a contract made for their benefit but the person with whom the contract is made is entitled to enforce the contract.’ Mr. Hohler took no benefit under the contract but was allowed to recover.

Judges:

Sargant J

Citations:

[1920] 2 Ch 420

Jurisdiction:

England and Wales

Cited by:

Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Wills and probate, Litigation Practice, Contract

Updated: 05 December 2022; Ref: scu.251048

The Goods of Pearn, Re: 1875

Citations:

[1875] 1 PD 70

Jurisdiction:

England and Wales

Cited by:

Cited – Weatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 December 2022; Ref: scu.183797

In re Basham dec’d; Basham v Basham: 1986

The claimant and her husband had helped her mother and her stepfather throughout the claimant’s adult life. She received no remuneration but understood that she would inherit her stepfather’s property when he died. After her mother’s death and until her stepfather’s death she and her husband lived near the cottage to which her stepfather had moved (but never lived in the cottage). The claimant was told by her stepfather that ‘she would lose nothing’ by her help and (a few days before his death) that she was to have the cottage. The deputy judge held that she was entitled, by proprietary estoppel, to the whole of the estate of her stepfather (who died intestate). He rejected the submission that the principle could not extend beyond cases where the claimant already had enjoyment of an identified item of property.
Edward Nugee QC said: ‘In the present case it is in my judgment clearly established by the evidence, first, that the plaintiff had a belief at all material times that she was going to receive both Rosslyn and the remainder of the deceased’s property on his death, and secondly, that this belief was encouraged by the deceased . . I am satisfied that the deceased encouraged the plaintiff in the belief that all the property he possessed at the date of his death would pass to her.’ and
‘The plaintiff relies on proprietary estoppel, the principle of which, in its broadest form, may be stated as follows: where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief.’ and ‘But in my judgment, at all events where the belief is that A is going to be given a right in the future, it is properly to be regarded as giving rise to a species of constructive trust, which is the concept employed by a court of equity to prevent a person from relying on his legal rights where it would be unconscionable for him to do so.’

Judges:

Edward Nugee QC

Citations:

[1986] 1 WLR 1498, [1987] 1 All ER 405

Jurisdiction:

England and Wales

Citing:

Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .

Cited by:

Cited – Keelwalk Properties Ltd v Betty Waller and Another CA 30-Jul-2002
The claimant appealed refusal of its claim for possession against the respondents, occupiers of single-storey wooden bungalows on its land. The leases had expired. The defendants said the structures were their own, and not subject to the lease, and . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Grundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Estoppel

Updated: 05 December 2022; Ref: scu.182388

Earnshaw and Others v Hartley: CA 31 Mar 1999

An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A delay in the application for the grant did not apply where time had not in any event begun to run before the application

Judges:

Lord Justice Nourse Lord Justice Buxton And Sir Christopher Staughton

Citations:

Gazette 21-Apr-1999, Times 29-Apr-1999, Gazette 12-May-1999, [1999] EWCA Civ 1141, [2000] Ch 155

Statutes:

Limitation Act 1980 Sch 1 Para 9, Administration of Estates Act 1925 9

Jurisdiction:

England and Wales

Citing:

Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Re Leigh’s Will Trusts; Handyside v Durbridge ChD 1970
The testatrix’s husband and only child had drowned in an accident. She was his administratrix and sole beneficiary under his intestacy. At his death, the husband had been the owner of 51% of the issued shares in a company and had been owed money by . .
Cited – Paradise Beach and Transportation Co Ltd v Price-Robinson PC 1968
(Bahamas) The provisions in the Acts of 1833 and 1874 did away with the earlier doctrine of ‘non adverse’ possession, under which, in the absence of an ouster, the possession of one joint tenant or tenant in common was regarded as the possession of . .
Mentioned – Re Deans 1954
A Probate Judge is not considered to be a trustee. . .
Cited – In Re Williams 1886
The purpose of the section is to allow time to run against an administrator as from the intestate’s death, irrespective of whether a grant of administration has been obtained or not. . .

Cited by:

Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Land, Wills and Probate, Limitation

Updated: 05 December 2022; Ref: scu.146056

James v Williams: CA 8 Mar 1999

A beneficiary under an intestacy, who tried to position himself as owner of assets in the estate, became a constructive trustee of those assets, with or without letters of administration, and accordingly the claim for the return of the land was not time-barred. ‘Parliament, wittingly or unwittingly has drawn a distinction between personal representatives and executors on the one hand who are trustees and Executors de ses torts who are not.’ ‘a constructive trust attaches by law to property which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property.’

Judges:

The President Sir Stephen Brown Lord Justice Swinton Thomas Lord Justice Aldous

Citations:

Times 13-Apr-1999, Gazette 14-Apr-1999, Gazette 28-Apr-1999, [1999] EWCA Civ 921

Statutes:

Limitation Act 1980 15(1)

Jurisdiction:

England and Wales

Wills and Probate, Limitation, Trusts

Updated: 05 December 2022; Ref: scu.145836

Powell v Haywards (a Firm): CA 18 Feb 1999

Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their loss. A disappointed beneficiary, claiming for professional negligence against solicitors, did not first have to seek to minimize his loss by seeking rectification of the will, where this would be unlikely to produce a practical improvement in his position.

Judges:

Hirst LJ, Mummery LJ, Buxton LJ

Citations:

Gazette 31-Mar-1999, Gazette 10-Mar-1999, [1999] EWCA Civ 816, Times 11-Mar-1999, [1999] 1 FLR 1182

Jurisdiction:

England and Wales

Citing:

Cited – Pilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Legal Professions

Updated: 05 December 2022; Ref: scu.145731

Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased): ChD 12 Nov 2008

The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the estate to his trustee.
Held: The value of the estate was payable to the trustee in bankruptcy. Once the right vested in the trustee, it could not revert to the bankrupt on release. ‘ the Trustee has never had any proprietary interest in Mrs. Hemming’s half-share of the cottage, or in the proceeds of sale of that specific property. Accordingly, if and to the extent that the Trustee asserted any present entitlement to the proceeds of sale in the hands of Raymond Saul and Co., that claim was unjustified. ‘

Judges:

Richard Snowden, QC

Citations:

[2008] EWHC 2731 (Ch), Times 09-Dec-2008, [2008] WTLR 1833, [2008] NPC 122, [2009] 2 WLR 1257, [2009] Ch 313

Links:

Bailii

Statutes:

Insolvency Act 1986 283(1) 306(1) 436

Jurisdiction:

England and Wales

Citing:

Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

Cited by:

Principal judgment – Raymond Saul and Co (A Firm) v Holden and Another ChD 16-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency

Updated: 04 December 2022; Ref: scu.277939

Sudeley v Attorney-General: HL 1897

The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked whether, on the widow’s death, probate duty was payable on the value of her interest in these New Zealand mortgages. Her executors argued that since the mortgages were foreign assets probate duty was not payable on the widow’s share in them.
Held: Duty was payable.
Lord Herschell said: ‘the whole fallacy of the argument on behalf of the appellants rests on the assumption that [the widow], or they as her executors, were entitled to any part of these New Zealand mortgages as an asset – she in her own right, or they as executors of their testatrix. I do not think that they have any estate, right, or interest, legal or equitable, in these New Zealand mortgages so as to make them an asset of her estate. What she had a right to – what they as her executors had a right to – was one-fourth of the clear residue of [her deceased husband’s] estate – that is to say, what remains of his estate after satisfying debts and legacies; and a bequest to them of one fourth part of his residuary estate does not seem to me to vest in them or in her a fourth part of each asset of which that estate consists.’ The widow’s estate did not have a proprietary interest in the specific asset of her husband’s estate that the New Zealand mortgages constituted.
Lord Davey said: ‘What then, are the rights of the appellants? Their right, and the only right which they could enforce adversely, is to have the administration completed and the residuary estate ascertained and realised, either wholly or so far as may be necessary for the purpose, and to have one-fourth of the proceeds paid to them.’

Judges:

Lord Herschell, Lord Davey

Citations:

[1897] AC 11

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Maye, Re (Northern Ireland) HL 6-Feb-2008
The defendant had admitted charges of obtaining property by deception. A confiscation hearing concluded that he had benefitted to a much greater extent than could be recoverd. Before then however both his parents had died, and he stood to inherit . .
Cited – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 December 2022; Ref: scu.264632

Hingeston v Tucker: 1862

Citations:

[1862] 2 SW and TR 596

Jurisdiction:

England and Wales

Cited by:

Cited – O’Brien v Seagrave and Another ChD 23-Mar-2007
The claimant had cohabited with the deceased. After his death, she applied for a grant of letters of administration in his estate, but this was rejected on the basis that she had no sufficient interest to make a claim to probate. The deceased had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 December 2022; Ref: scu.253200

Kipping and Barlow v Ash: 1845

Citations:

[1845] 1 Rob Eccl 270

Jurisdiction:

England and Wales

Cited by:

Cited – O’Brien v Seagrave and Another ChD 23-Mar-2007
The claimant had cohabited with the deceased. After his death, she applied for a grant of letters of administration in his estate, but this was rejected on the basis that she had no sufficient interest to make a claim to probate. The deceased had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 December 2022; Ref: scu.253199

Clitheroe v Bond: ChD 21 May 2020

family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny.

Judges:

Deputy Master Linwood

Citations:

[2020] EWHC 1185 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Health, Wills and Probate

Updated: 27 November 2022; Ref: scu.650956

Price v Gould: 1930

In relation to wills and settlements the legislature had used the word ‘family’ ‘to introduce a flexible and wide term’ so that brothers and sisters were to be treated as members of the family. The word was a ‘popular, loose and flexible expression’, and not a technical term.

Judges:

Wright J

Citations:

(1930) 46 TLR 411

Jurisdiction:

England and Wales

Cited by:

Approved – Brock v Wollams CA 1949
A child had been adopted in fact and lived with the tenant for many years, but had not been formally adopted under the Act claimed to inherit the tenancy on his death.
Held: He was to be considered to be a member of the former tenant’s family . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 November 2022; Ref: scu.215904

Gesek v Estate of Tusnelda Maria Giller (Deceased): CA 13 Nov 1998

The plaintiff sought damages from the estate. The appointed defendant had not taken out a grant of probate. There was confusion about the terms of an order made authorising the representation.
Held: The judge did have discretion to make an order for representation in respect of future proceedings. In not exercising his discretion to extend the time for service, he had failed to give effect to the purpose of the rule, namely to ensure that all issues between the parties are decided. The appeal against the dismissal of the action in limine was successful.

Judges:

Lady Justice Butler-Sloss, Lord Justice Buxton

Citations:

[1998] EWCA Civ 1765

Statutes:

County Court Rules 1981 Ord 5 Rule 8

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 27 November 2022; Ref: scu.145244

Scotching v Birch: ChD 2008

When a court is asked which of several people may be appointed administrator of a deceased’s estate section 116 jurisdiction is capable of being engaged.

Judges:

Patten J

Citations:

[2008] EWHC 844 (Ch)

Statutes:

Senior Courts Act 1981 116

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 27 November 2022; Ref: scu.650939

Sharp v Lush: 1879

An executor appointed by will is entitled to obtain possession of the body for its proper disposal.

Citations:

(1879) 10 Ch D 468

Jurisdiction:

England and Wales

Cited by:

Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .
Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 November 2022; Ref: scu.650940

In Re Estate of Hall: CA 1914

The rule of forfeiture applied as much to manslaughter as to murder.

Citations:

[1914] P 1

Jurisdiction:

England and Wales

Cited by:

Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Crime, Wills and Probate

Updated: 27 November 2022; Ref: scu.650970

Chadwick v Collinson and Others: ChD 24 Sep 2014

The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was referred by his GP for a mental health assessment after describing feelings of paranoia and of hearing voices. In the early morning of the day of the assessment the claimant stabbed both the deceased and their son to death. He was charged with murder, but his plea of guilty to manslaughter on the grounds of diminished responsibility was accepted by the Crown and he was made the subject of a hospital order. The court now considered the division of the estate under the 1982 Act. The applicant sought the disapplication of the 1982 Act.
Held: The circumstances offered did not allow disapplication of the Forfeiture rule.
Pelling QC HHJ referred to the decision of Patten J in Dalton v Latham and others, and said: ‘The effect of these different approaches was held by Patten J in Dalton v Latham (ante) at 11 as meaning that the first and paramount consideration is that identified by Philips LJ but that such is not the only factor to be considered and that the other factors to be considered included those identified by Mummery LJ. I would be entitled to depart from that approach [ie that of HHJ Pelling QC] only if satisfied that it was plainly wrong. That is not my view. On the contrary, with respect, I consider it to be the correct approach not least because it is consistent with the terms of the Act.’

Judges:

Pelling QC HHJ

Citations:

[2014] EWHC 3055 (Ch)

Links:

Bailii

Statutes:

Forfeiture Act 1982, Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

Cited – In the Estate of Cunigunda Crippen deceased 1911
Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
Cited – In the Estate of Julian Bernard Hall deceased; In re RH CA 1914
The rule against an offender benefitting from his crime applies not just in cases involving a conviction for murder.
Held: The court rejected a suggestion that a distinction should be drawn between cases of murder and manslaughter. Lord . .
Cited – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .

Cited by:

Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 November 2022; Ref: scu.537220

D v L and Others: ChD 16 Apr 2003

The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to preserve certain classes of offender from capital punishment for killings carried out by reason of diminished responsibility or under provocation. But the 1982 Act recognises in terms that cases of manslaughter do not qualify for relief for that reason alone. The case must be one in which an exception to the rule of public policy requires to be made in order to do justice. Had Parliament intended to disapply the forfeiture rule in all cases of manslaughter involving diminished responsibility, it would have enacted the 1982 Act in a very different form. In the present case Mr M. was killed by someone he had befriended and to whom he had only ever been generous. He was rewarded by violence and abuse, both physical and financial. Mr D.’s mental condition may have robbed him of a measure of responsibility for the actual killing, but it does not remove from him the responsibility for allowing that situation ever to arise.’

Judges:

Patten J

Citations:

[2003] WTLR 687, [2003] EWHC 796 (Ch)

Links:

Bailii

Statutes:

Forfeiture Act 1982 1(1)

Jurisdiction:

England and Wales

Citing:

Cited – In the Estate of Cunigunda Crippen deceased 1911
Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
Cited – In the Estate of Julian Bernard Hall deceased; In re RH CA 1914
The rule against an offender benefitting from his crime applies not just in cases involving a conviction for murder.
Held: The court rejected a suggestion that a distinction should be drawn between cases of murder and manslaughter. Lord . .
Cited – In re Giles Deceased 1972
A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule . .
Cited – Gray v Barr ChD 1970
The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public . .
Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – In Re K, decd ChD 2-Jan-1985
A wife had pleaded guilty to the manslaughter of her husband, though she had been subject to long term abuse by him.
Held: Relief was granted to the wife under s.2(2) of the 1982 Act. The forfeiture rule for suicide operates to sever any joint . .
Cited – In Re K (Deceased) CA 1986
The wife who had been subjected to years of abuse shot her violent husband dead in the course of an argument, when a loaded shotgun she had picked up and pointed at him as a threat to deter him from offering her further violence went off . .

Cited by:

Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 26 November 2022; Ref: scu.342132

Re H (Deceased): 1990

The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule must be applied. The court should exercise a discretion after careful scrutiny of the facts of each particular case. The court relied on the decision in Gray v Barr, and concluded that had the rule applied it would have exercised its power under section 2 of the Forfeiture Act 1982 to modify the rule to reflect the justice of the case. The court should assess the wrongdoer’s culpability, and ask:- ‘Was Mr H guilty of deliberate, intentional and unlawful violence or threats of violence?’
Peter Gibson J said: ‘Mr Jackson [counsel for the claimant] submits that the forfeiture rule does not apply to every case of manslaughter. He pointed out that cases of manslaughter may vary enormously in gravity from the deliberate to the unintentional, and he submitted that in the light of recent authorities the appropriate test was that propounded by Geoffrey Lane J in Gray and Another v Barr [1970] 2 QB 626, 640: has the person been guilty of deliberate, intentional and unlawful violence or threats of violence? . . There is no authority binding on me that compels me to apply that test to a succession case such as the present case. I must choose between following the decision in Re Giles (Deceased) [[1972] Ch 544] and following Vinelott J in Re K (Deceased) [[1985] FLR 558] in applying the Gray v Barr test. I have no hesitation in taking the latter course. The concepts of public policy are not fixed and immutable. The recent cases show that the courts have come to recognise that so varied are the circumstances which may amount to manslaughter that it would not be just to apply the forfeiture rule in every case of proof of manslaughter.’

Judges:

Peter Gibson J

Citations:

[1990] 1 FLR 441

Statutes:

Forfeiture Act 1982 2

Jurisdiction:

England and Wales

Citing:

Applied – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .

Cited by:

Cited – Sudershan Kumar Rampal v Surendra Rampal CA 19-Jul-2001
The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Mack v Lockwood and Others ChD 19-Jun-2009
The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his . .
Disapproved – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 26 November 2022; Ref: scu.235263

In Re Johnson, Sly v Blake: 1855

The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: ‘The second question turns on the meaning of the words ‘present right to receive the same.’ The intestate Johnson died in 1848, and the Defendants contend that the Plaintiff’s right was barred at the end of twenty years from his death, or at all events of twenty-one years, the additional year being conceded in conformity with the general rule that an executor or administrator is allowed in an administration case one year to complete the administration of the estate. In the absence of any special circumstances relating to the getting in of an intestate’s estate, I think that the latter contention is correct, and that the Plaintiff’s claim for the general administration of the intestate’s estate is barred
. . But I am of the opinion that the claims of the Plaintiff in her own right and as administratrix of her deceased sister are not barred in reference to such of the assets as came into the possession of T.C. Johnson the administrator, within twenty years before the 11th of April 1883, the day on which the writ was issued. . The right to a legacy and the right to receive a legacy are, (as was pointed out by Lord Romilly in Earle v. Bellingham [24 Beav. 448]), obviously distinct rights. And the observation applies equally to a share of the residue of an intestate’s estate. But the enactments speak not merely of a right to receive, but, emphatically, of a present right to receive. The next of kin have no present right to receive from the administrator a reversionary asset belonging to the intestate, before it falls into possession and is possessed by him, nor where he is compelled to take proceedings to recover an outstanding asset, before he recovers it or obtains possession of it.’

Judges:

Chitty J

Citations:

(1855) 29 ChD

Jurisdiction:

England and Wales

Cited by:

Applied – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 November 2022; Ref: scu.223967

In the Estate of Cunigunda Crippen deceased: 1911

Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel Le Neve was passed over on a motion for the grant of an administration to Mrs Crippen’s intestate estate.
Held: Sir Samuel Evans P refused a grant of letters of administration in respect of Mrs Crippen’s estate to the personal representatives of her husband. There were special circumstances justifying this course of action: ‘It is clear that the law is that no person can obtain, or enforce any right resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such right. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.’

Judges:

Sir Samuel Evans P

Citations:

[1911] P 108

Jurisdiction:

England and Wales

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 26 November 2022; Ref: scu.199527

Hoskins v Hoskins: 1706

The rule against double portions applied so that a larger gift by will would be totally adeemed by a later and smaller inter vivos gift.

Citations:

(1706) Pr Ch 263

Jurisdiction:

England and Wales

Cited by:

Cited – Pym v Lockyer 1840
It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: ‘in the case of a parent, a legacy to a child is presumed to be intended to be a portion . .’ The court queried the likelihood of an intention in a grandfather . .
Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 November 2022; Ref: scu.194495

Gray v Barr: CA 1971

A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him by the deceased’s estate as a result of the shooting. It is not every type of crime which operates so as to cause public policy to make the courts reject a claim. The forfeiture rule only applies where the offender is ‘guilty of deliberate, intentional and unlawful violence, or threats of violence.’
Lord Denning MR said: ‘Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence.’ and ‘In an action for assault, in awarding damages, the judge or jury can take into account, not only circumstances which go to aggravate damages, but also those which go to mitigate them’
Phillimore LJ confirmed that manslaughter varies from conduct which is almost murder to conduct which is only criminal in the technical sense: ‘It would be foolish to attempt to lay down any general rules. It is wiser I think to confine decision to the facts in this case.’
Salmon LJ said this: ‘Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. In particular, I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting under a will or upon the intestacy of anyone whom he has killed. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts. H.’s case [1914] P. 1 may seem to be an authority for the proposition that anyone who has committed manslaughter, in any circumstances, is necessarily under the same disability as if he had committed murder. The facts however are not stated in the report and they are of vital importance in order to understand the decision. They have now been ascertained from the record A man named J.H. kept a woman named J.B. and had made a will in her favour. They had had many quarrels. He had promised to marry her but had not done so. On April 13, 1913, she took his revolver and, whilst he was in bed, shot him dead with four or five shots. She was acquitted of murder but convicted of manslaughter. It is small wonder that the court held that, on grounds of public policy, she could not take under H.’s will. The only surprising thing about the case is that she was acquitted of murder, apparently for no reason – except, perhaps, that she was defended by Mr Marshall Hall.’

Judges:

Salmon LJ, Lord Denning MR, Phillimore LJ

Citations:

[1971] 2 QB 554

Jurisdiction:

England and Wales

Citing:

Appeal from – Gray v Barr ChD 1970
The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Applied – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Hawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
Cited – Porter v Zurich Insurance Company QBD 5-Mar-2009
The claimant insured his house with the defendants. Severely depressed, drunk and delusional, he set fire to it and now claimed after refusal to pay out. He said that he was not acting as a free agent.
Held: A claimant who seeks to recover . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Cited – Murphy v Culhane CA 10-Jun-1976
The widow of the deceased claimed damages from one of the attackers who had been convicted of her husband’s manslaughter. The question was whether, given the conviction, she was entitled to entry of judgment as to liability without trial. The . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 26 November 2022; Ref: scu.185188

Gray v Barr: ChD 1970

The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public policy that a criminal should forfeit any interest in a benefit arising from his act only applies where the offender is guilty of violence: ‘However to confine the operation of public policy to cases where there was an actual intent to kill would be to exclude many cases of actual murder: that is to say those cases where the killing was done with intent to do grievous bodily harm, but not to kill. It would further include some cases of manslaughter, for example, manslaughter where the killing was done intentionally but under the stress of provocation, or killing in pursuance of a suicide pact. The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain a claim for indemnity.’

Judges:

Geoffrey Lane J

Citations:

[1970] 2 QB 626

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Re H deceased CA 1991
The Plaintiff had stabbed his wife to death when under the illusion, induced by a reaction to an anti-depressant drug, that she had just committed an act of infidelity. At his trial, a plea to guilty of manslaughter by reason of diminished . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Insurance, Wills and Probate, Crime

Updated: 26 November 2022; Ref: scu.185186

Anstey v Mundle and Another: ChD 25 Feb 2016

The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having considered the factors as set out in Hartshorne, an order was to be made for his return to Jamaica.

Judges:

Mr Jonathan Kleene

Citations:

[2016] EWHC 1073 (Ch), [2016] WTLR 931, [2016] Inquest LR 47

Links:

Bailii

Statutes:

Senior Courts Acts 1981 116

Jurisdiction:

England and Wales

Citing:

Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Cited – Scotching v Birch ChD 2008
When a court is asked which of several people may be appointed administrator of a deceased’s estate section 116 jurisdiction is capable of being engaged. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Applied – 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: 26 November 2022; Ref: scu.618959

Coombs v Her Majesty’s Proctor: 6 Jul 1852

The wife of a felon convict died intestate, leaving personal property acquired by her subsequently to her husband’s conviction.
Held: that such property belonged to the Crown, and not to the next of kin of the intestate.

Citations:

[1852] EngR 814, (1852) 2 Rob Ecc 547, (1852) 163 ER 1409

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 26 November 2022; Ref: scu.295937

Rees v Hughes: 1946

The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’.

Citations:

[1946] KB 517, [1946] 2 All ER 47

Jurisdiction:

England and Wales

Cited by:

Cited – Kerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 November 2022; Ref: scu.196894

D’Eyncourt v Gregory (No 1): 1866

If the intention is apparent to make the articles part of the land, they become part of the land. Sculptures which simply rested by their own weight were held to form part of the architectural design for the hall in which they were placed and so fell to be treated as part of the freehold.

Judges:

Lord Romilly MR

Citations:

(1866) LR 3 Eq 382

Jurisdiction:

England and Wales

Cited by:

Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 26 November 2022; Ref: scu.188829

Re Flynn: 1968

The court had to decide on the intentions of the deceased with regard to domicile: ‘In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man’s mind may be as much a fact as the state of his digestion, but, as Harman LJ is reputed to have observed, ‘the doctors know precious little about the one and the judges know nothing about the other.” and ‘Acquisition and abandonment are correlatives . . When animus and factum are each no more, domicile perishes also; for there is nothing to sustain it. If a man has already departed from the country, his domicile of choice there will continue so long as he has the necessary animus.’

Judges:

Megarry J

Citations:

[1968] 1 WLR 103

Jurisdiction:

England and Wales

Citing:

Cited – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .

Cited by:

Cited – Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo ChD 9-Feb-2004
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not . .
See Also – Re Flynn (no 2) 1969
An acknowledgement of title to restart a limitation period must be precisely focused on a disputed right. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2022; Ref: scu.196842

Lester v Garland: 8 Aug 1808

Bequest of residue in trust in case A shall within six months after testator’s decease give security not to marry B then and not otherwise to pay to the children of A; with a proviso to go over if she shall refuse or neglect to give such security. A condition precedent. Six months exclusive of day of death – security given on six months anniversary.
Held: There was no general rule in computing time from an act or event that the day is inclusive or exclusive – depends on the reason of the thing according to circumstances.

Citations:

(1808) 15 Ves Jun 248, 33 ER 748, [1808] EngR 326, (1808) 15 Ves Jun 248, (1808) 33 ER 748

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Trafford Metropolitan Borough Council v Total Fitness UK Ltd CA 18-Oct-2002
The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
Cited – Dodds v Walker HL 1981
The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
Held: Dismissing the tenant’s appeal, the House found that the court . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2022; Ref: scu.180922

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 circumstances outside the range of circumstances listed in s.3 of the Act. It is said that this can be derived from the case of Re Coventry above but I do not read the case of Coventry in that light. That was relating to a grown up man who was capable of working, and a judge, with whom the Court of Appeal agreed, said that if a grown up man capable of working was going to make an application under the Act he would look for special circumstances. So one would. But that is not a question of law; it is a question of applying common sense principles…’

Judges:

Ewbank J

Citations:

[1986] 1 FLR 404

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2022; Ref: scu.197026