Simon v Byford and Others: CA 13 Mar 2014

The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the affirmative.
Lewison LJ said: ‘when we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that counts: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices whereas knowledge and approval requires no more than an ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacked testamentary capacity at the date that the will is executed. The reason for this requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland (2010) EWCA civ 840. Normally proof of instructions and reading over the will will suffice: ibid at (25). The correct approach for the trial judge is clearly set out in Gill V Woodhall (2010) EWCA civ 1430. It is a holistic exercise based on the evaluation of all the evidence both factual and expert. The judge’s starting point in our case was one of initial suspicion given that the disputed will was prepared and executed without a solicitor and without Mrs Simon having been medically examined’

Sullivan, McFarlane, Lewison LJJ
[2014] EWCA Civ 280
Bailii
England and Wales
Cited by:
CitedRam and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 December 2021; Ref: scu.522398

Ilott v Mitson and Others: FD 3 Mar 2014

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

Parker J
[2015] 1 FLR 291, [2014] EWHC 542 (Fam)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
See AlsoIlott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .

Cited by:
Appeal FromIlott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
At First InstanceIlott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 December 2021; Ref: scu.521976

Moore v Darton: 13 Jun 1851

Donations mortis causa are not abolished by the Wills Act. There had been a valid donatio mortis causa of a debt of C500 by delivery of a receipt signed by the debtor stating that the debt was to bear interest at a specified rate.

Knight-Bruce V-C
[1851] EngR 606, (1851) 4 De G and Sm 517, (1851) 64 ER 938
Commonlii
England and Wales
Cited by:
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 November 2021; Ref: scu.296922

Bell v Georgiou and Another: ChD 28 May 2002

Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. . . The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’

Blackburne J VC
[2002] EWHC 1080 (Ch), [2002] WTLR 1105
Bailii
Administration of Justice Act 1982 2091)(a)
Cited by:
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 November 2021; Ref: scu.520890

Aeroflot v Berezovsky: ChD 17 Dec 2013

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

Morgan J
[2013] EWHC 4348 (Ch)
Bailii
England and Wales

Wills and Probate

Updated: 29 November 2021; Ref: scu.520878

Hawkins v Blewitt: 1798

Lord Kenyon CJ said: ‘In the case of a donatio mortis causa, possession must be immediately given. That has been done here; a delivery has taken place; but it is also necessary that by parting with the possession, the deceased should also part with the dominion over it. That has not been done here.’

Lord Kenyon CJ
(1798) 2 Esp 663
England and Wales
Cited by:
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 November 2021; Ref: scu.669948

Pla and Puncernau v Andorra: ECHR 8 Aug 2011

Execution – The court was asked to interpret a testamentary provision and as to the right of an adopted son to inherit from his grandmother under her will.
When a child is adopted under a full adoption procedure, the child is in the same legal position as a biological child of his or her parents in all respects, including property rights. Any interpretation of a will should endeavour to ascertain the testator’s intention without overlooking the importance of interpreting the testamentary provision in compliance with domestic law and the Convention. In this case the applicant had been discriminated against when the High Court in Andorra had interpreted the testamentary provision of the grandmother’s will as including only the biological sons (violation of Article 14 read in conjunction with Article 8 of the Convention).

Execution of the judgment
[2011] ECHR 1575, 69498/01
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
JudgmentPla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Wills and Probate

Updated: 28 November 2021; Ref: scu.519437

Gardner v Parker And Others: 28 Apr 1818

Leach V-C. made a declaration that the donee of a bond by way of donatio mortis causa, on indemnifying the donor’s executors, was at liberty to sue on the bond in their names. He said that Snellqrove v. Baily had established: ‘that there may be a donatio mortis causa of a bond, though not of a simple contract debt, nor by the delivery of a mere symbol.’

Leach V-C
[1818] EngR 388, (1818) 3 Madd 184, (1818) 56 ER 478 (B)
Commonlii
England and Wales
Citing:
ExplainedSnellgrove v Baily 11-Mar-1744
A bond for pounds 100 was given by one Spackman to Sarah Baily, who delivered it to the defendant, saying: ‘In case I die, it is yours, and then you have something.’ Sarah Baily having died, the administrator of her estate sued unsuccessfully to . .

Cited by:
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 November 2021; Ref: scu.332388

Ward v Turner: 20 Jul 1752

In the doctrine of donation mortis causa, the necessity for a delivery in every case and the acts sufficient for that purpose are developments of English law.

Lord Hardwicke L.C.
[1752] EngR 109, (1752) 2 Ves Sen 431, (1752) 28 ER 275 (C), [1752] EngR 110, (1752) Ves Sen Supp 378, (1752) 28 ER 555 (B)
Commonlii, Commonlii
England and Wales
Cited by:
See AlsoWard v Turner 21-Jul-1752
. .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 November 2021; Ref: scu.378327

Sen v Headley: CA 28 Feb 1991

D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only key to a steel box holding the deeds.
Held: On these facts that D had made a valid dontio mortis causa of his house to R. As a policy donatio mortis cause is an anomaly in English law for two reasons. First, it was immune to the Statute of Frauds 1677 and the Wills Act 1837. Secondly, it was an exception to the rule that there was no equity to perfect an imperfect gift.
Nourse LJ conducted an extensive review of the authorities, noting that D must make the gift in contemplation of impending death. He noted that the gift must be conditional upon death. Thirdly, there must be a delivery of the subject matter of the gift, which amounted to a parting with dominion. In giving R the keys to the box holding the deeds, D had parted with dominion over his house. Accordingly, all the elements of the doctrine were satisfied.

Purchas, Nourse, Leggatt LJJ
[1991] EWCA Civ 13, [1991] Ch 425
Bailii
England and Wales
Citing:
CitedTate, Mary v Hilbert Tate, Jane v Hilbert 22-Apr-1793
‘Mortis causa donatio est, quae propter mortis fit suspicionem etc. …’, . .
CitedBirch v Treasury Solicitor CA 1950
There had been donationes mortis causa of the money standing in four accounts, by the delivery of a Post Office Savings Bank book and three other bank books of various descriptions. Lord Evershed MR stated: ‘the courts will examine any case of . .
CitedWard v Turner 20-Jul-1752
In the doctrine of donation mortis causa, the necessity for a delivery in every case and the acts sufficient for that purpose are developments of English law. . .
CitedIn Re Craven’s Estate ChD 1937
D was about to undergo an operation which might prove fatal. D gave a power of attorney to R (her son). She told R that she wanted him to have certain shares and monies in her bank account if she died. R notified the bank, which responded that it . .
CitedThomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
CitedSnellgrove v Baily 11-Mar-1744
A bond for pounds 100 was given by one Spackman to Sarah Baily, who delivered it to the defendant, saying: ‘In case I die, it is yours, and then you have something.’ Sarah Baily having died, the administrator of her estate sued unsuccessfully to . .
CitedGardner v Parker And Others 28-Apr-1818
Leach V-C. made a declaration that the donee of a bond by way of donatio mortis causa, on indemnifying the donor’s executors, was at liberty to sue on the bond in their names. He said that Snellqrove v. Baily had established: ‘that there may be a . .
CitedCain v Moon QBD 9-May-1896
The rule that delivery of a chattel is essential in order to constitute a valid donatio mortis causa is satisfied by an antecedent delivery of the chattel alio intuitu to the donee. . .
CitedHawkins v Blewitt 1798
Lord Kenyon CJ said: ‘In the case of a donatio mortis causa, possession must be immediately given. That has been done here; a delivery has taken place; but it is also necessary that by parting with the possession, the deceased should also part with . .
CitedReddel v Dobree 22-Jul-1839
The donor gave . .
CitedMoore v Darton 13-Jun-1851
Donations mortis causa are not abolished by the Wills Act. There had been a valid donatio mortis causa of a debt of C500 by delivery of a receipt signed by the debtor stating that the debt was to bear interest at a specified rate. . .
CitedIn re Dilllon; Duffin v Duffin CA 14-Feb-1890
A testator who held a banker’s deposit note for pounds 580, in his last illness and very shortly before his death, took out the note, filled in and signed upon a stamp a form of cheque indorsed on the note, ‘ pay self or bearer pounds 580 and . .
CitedWilkes v Allington 1931
. .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .

Cited by:
CitedKing v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
CitedKing v Dubrey and Others ChD 1-Jul-2014
The claimant said that before her death, the now deceased testator had handed the deeds of the house to him saying that she was giving the house to him. He said it was a donatio mortis causa gift. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 25 November 2021; Ref: scu.262630

Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others: PC 1827

[1827] EngR 205, (1827) 1 Bligh NS PC 497, (1827) 4 ER 959
Commonlii
Commonwealth
Citing:
See AlsoThomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .
See AlsoDuffield v Elwes 12-Jun-1823
Land subject to mortgage – possible gift donatio mortis causa? . .
CitedDuffield v Elwes 1-Jun-1826
. .

Cited by:
CitedThomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .
FollowedWilkes v Allington 1931
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.323959

Birch v Treasury Solicitor: CA 1950

There had been donationes mortis causa of the money standing in four accounts, by the delivery of a Post Office Savings Bank book and three other bank books of various descriptions. Lord Evershed MR stated: ‘the courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged as a donatio is an attempt to make a nuncupative will, or a will in other respects not complying with the forms required by the Wills Act.’
Lord Evershed MR restated the principle in the following terms: ‘The question then is: Where actual transfer does not or cannot take place, what will ‘amount to that’? As a matter of principle, delivery of the indicia of title (viz., the document or thing the possession or production of which entitles the possessor to the money or property purported to be given), as distinct from mere evidence of title, should satisfy Lord Hardwicke’s condition.’

Lord Evershed MR
[1951] Ch 298, [1950] 2 All ER 1198
Wills Act 1837
England and Wales
Cited by:
CitedKing v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.548013

In Re Craven’s Estate: ChD 1937

D was about to undergo an operation which might prove fatal. D gave a power of attorney to R (her son). She told R that she wanted him to have certain shares and monies in her bank account if she died. R notified the bank, which responded that it was now holding the shares and monies on his behalf. D died during the operation.
Held: D had made a valid donatio mortis causa. Parting with dominion as the crux of the case. D’s conduct amounted to parting with dominion.
Farwell J set out the conditions to be met to establish a claim of donatio mortis causa: ‘The conditions which are essential to a donatio mortis causa are, firstly, a clear intention to give, but to give only if the donor dies, whereas if the donor does not die then the gift is not to take effect and the donor is to have back the subject-matter of the gift. Secondly, the gift must be made in contemplation of death, by which is meant not the possibility of death at some time or other, but death within the near future, what may be called death for some reason believed to be impending. Thirdly, the donor must part with dominion over the subject-matter of the donatio”

Farwell J
[1937] 1 Ch 423, (1937) 3 All ER 33
England and Wales
Cited by:
CitedKing v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
CitedKing v Dubrey and Others ChD 1-Jul-2014
The claimant said that before her death, the now deceased testator had handed the deeds of the house to him saying that she was giving the house to him. He said it was a donatio mortis causa gift. . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.548014

King v The Chiltern Dog Rescue and Another: CA 9 Jun 2015

This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against the estate as reasonable financial provision. The principal issue was whether the deceased’s words and conduct a few months before her death gave rise to a donatio mortis causa.
Held: The charities’ appeal succeeded. Words and actions of a now deceased as to the transfer of her property at a point when she was not yet contemplating her impending death did not give rise to a donatio mortis causa.

Jackson, Patten, Sales LJJ
[2015] WLR(D) 245, [2015] EWCA Civ 581
Bailii, WLRD
England and Wales
Citing:
CitedCosnahan v Grice PC 12-Jul-1862
Isle of Man – The Board emphasised the burden of proof in claims to have received a donatio mortis causa: ‘Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous . .
CitedIn Re Craven’s Estate ChD 1937
D was about to undergo an operation which might prove fatal. D gave a power of attorney to R (her son). She told R that she wanted him to have certain shares and monies in her bank account if she died. R notified the bank, which responded that it . .
Appeal fromKing v Dubrey and Others ChD 1-Jul-2014
The claimant said that before her death, the now deceased testator had handed the deeds of the house to him saying that she was giving the house to him. He said it was a donatio mortis causa gift. . .
CitedBirch v Treasury Solicitor CA 1950
Lord Evershed MR stated: ‘the courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged as a donatio is an attempt to make a nuncupative will, or a will in other respects not complying with the forms . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .
DisapprovedVallee v Birchwood ChD 6-Jun-2013
On 6th August 2003 R visited D, her elderly father. He appeared to be in poor health and was coughing. R said that she would next visit him at Christmas. D said that he did not expect to live very much longer and that he might not be alive at . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.547670

Tate, Mary v Hilbert Tate, Jane v Hilbert: 22 Apr 1793

‘Mortis causa donatio est, quae propter mortis fit suspicionem etc. …’,

Lord Loughborough L.C.
[1793] EngR 1424, (1793) 2 Ves Jun 111, (1793) 30 ER 548
Commonlii
England and Wales
Cited by:
See AlsoJane Tate v Hilbert &Amp; Al’ Mary Tate v Hilbert &Amp; Al’ 22-Apr-1793
. .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.358011

Duffield v Elwes: 12 Jun 1823

Land subject to mortgage – possible gift donatio mortis causa?

[1823] EngR 598, (1823) 1 Sim and St 239, (1823) 57 ER 96
Commonlii
England and Wales
Cited by:
See AlsoThomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .
See AlsoDuffield v Elwes 1-Jun-1826
. .
See AlsoThomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See AlsoThomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 22 November 2021; Ref: scu.328638

Delqoffe v Fader: ChD 1939

Conditions for Donatio Mortis Causa

A woman, in expectation of death, delivered a bag to her friend stating that she wished her friend to have everything in the bag including the contents of an envelope within the bag. In the envelope was a deposit book with the Midland Bank showing a credit balance on an account owed to the donor.
Held: the gift, which was otherwise effective to pass title to the contents of the bag, was ineffective to the moneys in the account because the passbook did not contain the terms of the contract between the bank and the donor and the evidence of the bank manager was that moneys could be withdrawn from the account on written instructions of the customer without its being necessary to produce the passbook.
Luxmore J said: ‘. . there are to be found in the books many cases dealing with the subject matter of donatio mortis causa – three essentials to constitute such a gift-namely (i) the gift must be made in contemplation of the death of the donor, although not necessarily in expectation of death; (ii) there must be delivery of the subject-matter of the gift to the donee, or, I think, a transfer of the means of, or part of the means of, getting at the property; and (iii) the circumstances must be such as to establish that the gift is to take effect only on the death of the donor. It follows that the title of the donee is not complete until the donor is dead. If the subject-matter of the gift is not completely vested, the question arises whether or not the donee can call upon the legal personal representative of the donor to complete the title. Where there is a donatio mortis causa of a subject-matter which is not completely vested, I think that the true legal aspect is that a trust has been raised under which the donee can call on the legal personal representative of the donor to complete the gift. I think that that aspect of the case was settled in Duffield v Elwes, and has been recognised for years. Of course, in the case of a chose in action, physical delivery is impossible, but it has been held that in such cases the delivery of a document essential to its recovery may be sufficient. The test of whether the delivery of the document constitutes a good donatio mortis causa of a chose in action depends on the answer to the question whether the document expresses the terms on which the subject-matter of the chose in action is held by the donor, or the terms under which the chose in action came into existence.’

Luxmore
(1939) Ch 922, [1939] 3 All ER 682, 109 LJCh 6
England and Wales

Wills and Probate

Leading Case

Updated: 22 November 2021; Ref: scu.669896

Cain v Moon: QBD 9 May 1896

The rule that delivery of a chattel is essential in order to constitute a valid donatio mortis causa is satisfied by an antecedent delivery of the chattel alio intuitu to the donee.

Lord Russell of Killowen CJ
[1896] UKLawRpKQB 90, [1896] 2 QB 283
Commonlii
England and Wales
Cited by:
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.669895

Snellgrove v Baily: 11 Mar 1744

A bond for pounds 100 was given by one Spackman to Sarah Baily, who delivered it to the defendant, saying: ‘In case I die, it is yours, and then you have something.’ Sarah Baily having died, the administrator of her estate sued unsuccessfully to have the bond delivered up.
Held: Lord Hardwicke LC said: ‘I am satisfied upon the reason of the thing, and the cases which have been cited, that this is a sufficient donatio causa mortis to pass the equitable interest of this bond on the intestate’s death … . You cannot sue at law without the bond; for though you may give evidence of a deed at law that is lost, yet you cannot of a bond, because you must make a profert of it.’

Lord Hardwicke LC
[1744] EngR 1722, (1744) 3 Atk 214, (1744) 26 ER 924 (B)
Commonlii
England and Wales
Cited by:
ExplainedGardner v Parker And Others 28-Apr-1818
Leach V-C. made a declaration that the donee of a bond by way of donatio mortis causa, on indemnifying the donor’s executors, was at liberty to sue on the bond in their names. He said that Snellqrove v. Baily had established: ‘that there may be a . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.383578

Elliott v Elliott: 16 Jul 1841

Testator gave the residue of his personal estate unto and among all and every the children, sons and daughters, of his daughter Elizabeth, in equal shares and proportions, as and when they should attain their respective ages of twenty-two years.
Held, that the children of the testator’s daughter living at the testator’s death were
the only objects of the bequest; arid, consequently, that it was not void for
remoteness.

[1841] EngR 933, (1841) 12 Sim 276, (1841) 59 ER 1137
Commonlii
England and Wales

Wills and Probate

Updated: 20 November 2021; Ref: scu.309111

Mitchell And Mitchell v Gard And Kingwell: 27 May 1862

[1862] EngR 711, (1862) 3 Sw and Tr 75, (1862) 164 ER 1200
Commonlii
England and Wales
Cited by:
Appeal fromMitchell v Gard 1-Dec-1963
The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
Held: Sir James Wilde said: ‘The basis of all rule on this . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 November 2021; Ref: scu.286877

Curle’s Trustees v Millar and Others: HL 18 Nov 1921

A testator directed his trustees to hold the residue of his estate for his son and two daughters in equal shares for their liferent use allenarly and their issue in fee. In the event of his son or daughter or any of them dying without leaving lawful issue the trustees were directed to hold the capital of the said shares for behoof of the survivors of his son and daughters if more than one, or for the survivor if only one, in the way already provided with regard to their original shares. The testator further provided that if any of his children should predecease him leaving issue, such issue should receive the capital which would have been liferented by their parent, and that if any of his children should predecease him leaving no issue their shares should be divided equally among his surviving children and the issue of predeceasing children per stirpes. The settlement further provided-‘Failing any survivor of my said son or daughters or issue of any of them, I direct my trustees to pay over the said shares of my said son and daughters to their nearest heirs and representatives in moveables.’
The testator was survived by his three children. The son died without issue, survived by the issue of a predeceasing sister and by the other sister and her issue. Held ( rev. judgment of the First Division) that the residuary clause read as a whole showed that the word ‘survivor’ ought not to be construed in its ordinary sense, but was to be read ‘stirpitally’ ‘as meaning surviving in person or in stirps, and that accordingly the share liferented by the son did not fall exclusively to his surviving sister and her issue, but fell to be divided between the issue of his predeceasing sister on the one hand and his surviving sister and her issue on the other.

Lord Atkinson, Lord Shaw, Lord Sumner, and Lord Wrenbury
[1921] UKHL 21, 59 SLR 21
Bailii
England and Wales

Wills and Probate

Updated: 19 November 2021; Ref: scu.632643

Rex v Saunders: 1719

(1719) 93 ER 452
England and Wales
Cited by:
CitedHM Coroner for the Eastern District of London, Regina (On the Application of) v Sutovic Admn 31-Jul-2009
The deceased had died in Serbia, but was buried in Acton. A second inquest had been ordered on the request of the respondent, and an exhumation licence granted for the purposes of a second post mortem examination. The respondent had refused her . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 November 2021; Ref: scu.371600

Elliott v Elliott: 3 Jul 1846

A testatrix having personal property of her own, and a power, under her father’s will, to appoint a fund, by deed or will, amongst her brothers and sisters, after directing her debts and funeral and testamentary expenses to be paid out of her personal estate, and giving pecuniary legacies to persons not objects of the power, and a portion of the fund over which she had the power, to persons who were objects of it, bequeathed the residue of her personal estate, after payment of her debts, funeral and testamentary expenses, and the before-mentioned legacies, to two persons who also were objects of the power.
Held, that the residuary clause was a valid appointment of the remainder of the fund over which she had the power.

[1846] EngR 851, (1846) 15 Sim 321, (1846) 60 ER 642
Commonlii
England and Wales

Wills and Probate

Updated: 17 November 2021; Ref: scu.302746

In re George’s Will Trusts: ChD 1949

If the basic ingredients of a portion are present, then the question of whether or not a gift by will is in fact a portion depends to a large extent upon the donor’s intentions. The testator, by his inter vivos gift of a portion, ‘as it were anticipat[ed] his demise and [ put the devisee] in immediate possession of part of what he would in due course have taken under the testator’s will.’

Jenkins J
[1949] 1 Ch 154
England and Wales
Cited by:
CitedIn 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: 17 November 2021; Ref: scu.194475

In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose: ChD 1949

The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective

Jenkins J
[1949] Ch 78
England and Wales
Cited by:
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
ApprovedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedMascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal fromIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

Dunne v Byrne: PC 22 Feb 1912

Will – Construction – Charitable Bequest – Fund to be expended for the Good of
Religion – Religious Purposes.
Held, that a residuary bequest ‘to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese’ is not a good charitable bequest and is void. The expression used by the testator is not identical with the expression ‘for religious purposes.’
Where the purposes of a trust are expressed in plain language, it is not permissible to appeal to the nature of the trustee in order to impart a charitable character.
What the Archbishop might consider to be conducive to ‘the good of religion’ could cover activities that were not charitable in law. It was the width of the subjective view of the Archbishop and the lack of restriction to purely charitable religious activities that were fatal to the charitable status of the gift.
Lord Macnaghten said: ‘The fund is to be applied in such manner as the ‘Archbishop may judge most conducive to the good of religion’ in his diocese. It can hardly be disputed that a thing may be ‘conducive’, and in particular circumstances ‘most conducive’, to the good of religion in a particular diocese or in a particular district without being charitable in the sense which the Court attaches to the word, and indeed without being in itself in any sense religious.’
Lord Macnaghten managed to distinguish the case from the general principle that a gift for religious purposes is a good charitable gift by reasoning: ‘This is not in terms a gift for religious purposes, nor are the words synonymous with that expression. Their Lordships agree with the opinion of the Chief Justice that the expression used by this testator is wider and more indefinite.’

Lord MacNaghten
[1912] AC 407, [1912] UKLawRpAC 16, (1912) 28 TLR 257, [1911-13] All ER 1105, [1912] UKPCHCA 2, (1912) 16 CLR 500, (1912) 18 Argus LR 122
Commonlii, Austlii, Bailii
Australia
Citing:
Appeal fromJames Byrne v Robert Dunne 16-Dec-1910
(High Court of Australia) Will – Bequest for religious purposes – Charitable trust – Uncertainty – Gift of residue to Roman Catholic Archbishop and successors – ‘ To be used wholly or ‘ in part as ‘ the donee ‘ may judge most conducive to the good . .
ExemplarWhite, In re; White v White ChD 8-Feb-1893
A testator gave his property ‘to the [listed] religious societies, to be divided in equal shares among them,’ the particular objects not being named.
Held: (reversing Kekewich J) A bequest to a religious institution, or for a religious . .

Cited by:
CitedBath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
CitedGilmour v Coats HL 1949
Prayers Alone did not make Convent Charitable
A trust to apply the income of a fund for all or any of the purposes of a community of Roman Catholic Carmelite nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown . .

Lists of cited by and citing cases may be incomplete.

Trusts, Charity, Wills and Probate

Updated: 17 November 2021; Ref: scu.181218

Vallee v Birchwood: ChD 6 Jun 2013

On 6th August 2003 R visited D, her elderly father. He appeared to be in poor health and was coughing. R said that she would next visit him at Christmas. D said that he did not expect to live very much longer and that he might not be alive at Christmas. D said that he wanted R to have the house when he died. He handed over to her the deeds and a key. D died intestate on 11th December 2003.
Held: The court granted a declaration that D had made a valid donatio mortis causa of his house to R.
D had made the gift in contemplation of impending death. The fact that D thought that he might die within five months and that he did in fact die five months later was sufficient to fulfil this requirement. In the context of donatio moris causa ‘dominion’ meant conditional ownership. By handing over the deeds to his daughter in the circumstances described above D delivered to her dominion over his house.

Jonathan Gaunt QC
[2013] EWHC 1449 (Ch)
Bailii
Cited by:
DisapprovedKing v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover andpound;75,000 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 November 2021; Ref: scu.512272

Caldwell’s Trustees v Caldwell and Others: HL 25 Jul 1921

Held ( aff. judgment of the First Division) that a residuary bequest in favour of ‘such charitable and benevolent institutions in Glasgow and Paisley’ as the testator’s trustees might think best was not void from uncertainty.

Lord Buckmaster, Lord Atkinson, Lord Shaw, Lord Sumner, and Lord Wrenbury
[1921] UKHL 602
Bailii
Scotland

Wills and Probate

Updated: 12 November 2021; Ref: scu.632638

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 conviction under the 1982 Act, and that the three month strict time limit ran accordingly.
Held: The claim succeeded, and the forfeiture rule disapplied: ‘In my judgment, the word ‘conviction’ in section 2(3) of the 1982 Act does not refer to the occasion of the plea of guilty to manslaughter, but to the occasion (if they are at the same time) when the plea is accepted and the defendant is sentenced.’ and ‘ it is only at the point of sentence and not, if this is earlier, when the court accepts the plea, that there is a ‘conviction’ within section 2(3) of the 1982 Act, such that the three-month time limit begins to run.’
‘These facts are extraordinary, tragic, and, one would hope, rare. They lasted 40 years and involved the combination of a submissive personality on whom coercive control worked, a man prepared to use that coercive control, a lack of friends or other sources of assistance, an enormous dependency upon him by the claimant, and significant psychiatric illness. The deceased undoubtedly contributed significantly to the circumstances in which he died. I do not say that because coercive control is now a criminal offence, but simply because I consider that, without his appalling behaviour over so many years, the claimant would not have killed him. ‘

HHJ Paul Matthews
[2020] EWHC 1330 (Ch), [2020] WLR(D) 356
Bailii, WLRD
Forfeiture Act 1982
England and Wales
Citing:
CitedCleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .
CitedIn 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 . .
CitedIn Re Estate of Hall CA 1914
The rule of forfeiture applied as much to manslaughter as to murder. . .
CitedDunbar (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 . .
CitedGray 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 . .
CitedGray 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 . .
CitedRe 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 . .
CitedRegina v Cole CCA 1965
Six men robbed the bank manager and his assistant of monies in a safe in the vault of the bank premises. Two days later the appellant paid part of the proceeds of the robbery into two banks, located nearby to the vicinity of the robbery. Wax seals . .
CitedS v Recorder of Manchester and Others HL 1971
S, a 16 year old boy pleaded guilty to attempted rape before a juvenile court. The magistrates adjourned the case for inquiry reports. On the adjourned hearing, his legal representative referred to evidence of the boy’s mental condition, and asked . .
CitedLand v Land; In re Land, deceased ChD 13-Jul-2006
The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
CitedD 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 . .
CitedChadwick 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Criminal Practice

Updated: 12 November 2021; Ref: scu.650955

Key and Another v Key and Others: ChD 5 Mar 2010

The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the testator’s testamentary capacity.
Held: The will failed. When a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and make a contemporaneous record of his examination and findings. Though the terms of the will were rational, and the result of its dispositions might be fair, nevertheless, the burden on the objectors of establishing lack of capacity had been met: ‘the element of suspicion arising from the circumstances, although by no means overpowering, is sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of a rational will.’

Briggs J
[2010] EWHC 408 (Ch), [2010] 1 WLR 2020, [2010] WTLR 623
Bailii
England and Wales
Citing:
CitedKenward v Adams ChD 29-Nov-1975
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
CitedIn re Simpson Deceased; Schaniel and Another v Simpson and Others ChD 1977
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
CitedRe Moss, Larke v Nugus CA 1979
Executors To Give Information Avoiding Expense
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who . .
CitedScammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedCattermole v Prisk 2006
Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .
CitedJudy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
CitedCharles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
CitedFuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
CitedBuckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .

Cited by:
CitedWharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
CitedRam and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 November 2021; Ref: scu.402542

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 income received was eventually handed over to the charity as part of the residue, and the charity argued that it should be entitled to a repayment of the tax deducted at source.
Held: The charity was not entitled to repayment of the tax.
Viscount Cave stated: ‘When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him: but until that time he had no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors and are applicable by them as a mixed fund for the purposes of administration.’
Viscount Finlay said: ‘It appears to me that the present case is really decided by the decision of this House in Lord Sudeley’s Case. It was pointed out in that case that the legatee of a share in a residue has no interest in any of the property of the testator until the residue has been ascertained. His right is to have the estate properly administered and applied for his benefit when the administration is complete. The income from which this income tax was deducted was not the income of the charity. It was the income of the executors.’
Lord Atkinson said: ‘The case of Lord Sudeley v. Attorney-General . . conclusively established that until the claims against the testator’s estate for debts, legacies, testamentary expenses, etc., have been satisfied, the residue does not come into actual existence. It is a non-existent thing until that event has occurred. The probability that there will be a residue is not enough. It must be actually ascertained.’
Income Tax – Residuary bequest to Charity.- Will disputed – Income of testator’s estate prior to distribution received under deduction of Income Tax. – Claim by Charity for repayment of Income Tax deducted from accrued income of residue. – Rule Nisi for Mandamus

Viscount Cave, Viscount Finlay
[1921] 2 AC 1, [1921] UKHL TC – 7 – 646
Bailii
Income Tax Act 1842 88
England and Wales
Citing:
CitedSudeley 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 by:
CitedRaymond 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Income Tax

Leading Case

Updated: 11 November 2021; Ref: scu.524660

Agulian and Another v Cyganik: CA 24 Feb 2006

The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: ‘marriage by a man with a domicile of origin in one country to a woman domiciled in another country and post-matrimonial residence with his wife in that other country for many years are important considerations, but they are not conclusive.’ A later choice by the defendant was not sufficient to displace his domicile of origin: ‘If, as is agreed, Andreas did not acquire a domicile of choice in England between 1958 and 1995, because he did not intend to live in England permanently or indefinitely, it could not reasonably be inferred from what happened after 1995 that he had formed a different intention about his permanent home before he died.’ and ‘. . It is easier to show a change from one domicile of choice to another domicile of choice than it is to show a change to a domicile of choice from a domicile of origin.’
Mummery LJ said: ‘Positioned at the date of death in February 2003 the court must look back at the whole of the deceased’s life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard’s aphorism that ‘Life must be lived forwards, but can only be understood backwards’ resonates in the biographical data of domicile disputes.’

Mummery LJ, Longmore LJ, Lewison J
[2006] EWCA Civ 129
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
CitedInland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .
CitedIn the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
CitedBarry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
CitedUdny 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 . .
CitedAitchison v Dixon 1870
The testator, William Allan, had been Lord Provost of Edinburgh and unmarried. When 40 he moved to England ‘for a wife’ and ‘had the good fortune to win the hand of a widow . . of considerable wealth and expectations’. They lived for a while in . .
CitedAtorney-General v Yule and Mercantile Bank of India 1931
The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin. . .
CitedForbes v Forbes 3-Mar-1854
General Forbes died. It became necessary to decide what was his domicile at the date of death. He had been born in Scotland, but then served for 35 years in India, before retirng to live in London.
Held: The domicile in India was a domicile of . .
CitedWinans v Attorney-General HL 1904
A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
CitedAbraham v Attorney-General 1934
. .
CitedCordell v Second Clanfield Properties Ltd 1969
In a fast developing area of law, judges should acknowledge the value of ‘fertilisers of thought’: ‘argued law is tough law . . I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the . .
CitedTodd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
CitedIn re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
CitedG v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
CitedAEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .

Cited by:
CitedGaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedHolliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 11 November 2021; Ref: scu.238704

Schrader v Schrader: ChD 11 Mar 2013

Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the preparation of the later will was shown to be false by the amendments in his handwriting to the draft. There was no irrationality on the face of the will so as to remove the presumption that she had capacity, and indeed the evidence supported that. The evidence was that she understood knew what she was doing and its effect, and therefore. It could not be criticised a being executed with want of knowledge and approval.
As to undue influence: ‘It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles. ‘ The undue influence was found to be proved: ‘Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in doing so he took advantage of her vulnerability. It is not possible to determine any more than that the precise form of the pressure, or its occasion or occasions, but it is not necessary to do so. I am satisfied that this will results from some form of undue influence.’

Mann J
[2013] EWHC 466 (Ch)
Bailii
England and Wales
Citing:
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedRe Loxston, Abbot v Richardson ChD 2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
CitedWharton v Bancroft and Others ChD 30-Jan-2012
The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting . .
CitedEdwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 11 November 2021; Ref: scu.471578

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 children. The judge had held the will invalidly executed.
Held: The appeal succeeded. The decision that the will had not been duly executed was overturned on the basis that, where the will containing an attestation clause was regularly signed by the deceased at its foot, and by two witnesses, the strongest evidence was needed to reject the presumption of due execution.
The will appeared to be an extraordinary one in the light of the deceased’s expressed feelings about his wife. The judge had given great weight to the evidence of one witness, but had found her evidence incorrect in its most singular aspect when saying that the testator had signed the will first. She had also later talked about the will and said she witnessed it, though her evidence at court was that she had not known she was witnessing the will. Given the deceased’s insistence on the correct formalities, it was not credible that he did not have the will properly executed. In view of the identified errors in the evidence of the witnesses, the finding that the will was not executed and could not stand. Additional computer evidence tended to undermine the basis of the judge’s conclusions as to how it was drawn. An appellate court can be less cautious about interfering with a judge’s finding on a fact about which no direct evidence was given: the judge’s decision that the deceased did not know or approve the contents of the Will was contrary to all probability and beyond belief: it is plainly wrong. The appeal was allowed.
In overturning the factual findings Peter Gibson LJ said: ‘Before we go to the three issues, we must say a few words about the appropriate approach of the court to the issues so far as they are appeals on fact. As Mrs Talbot Rice rightly reminded us, an appellate court is severely handicapped in judging the credibility of oral evidence, even though transcripts are provided, because it has not heard and seen the witnesses giving evidence nor observed their demeanour. She has referred us to statements in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, [1955] AC 370 which made it clear how very difficult it is for an appellate court to interfere with a finding of primary fact founded on the credibility of a witness. Although that case suggests that it may be easier for an appellate court to interfere with an inference drawn from primary facts, that must now be read subject to the cautionary words of Lord Hoffmann in Biogen Inc v Medeva plc (1997) 38 BMLR 149 that specific findings of fact are inherently an incomplete statement of the impression made on the trial judge by the primary evidence and that such findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. It is accordingly necessary for this court to treat the judge’s findings with appropriate respect. It must be very slow indeed to interfere with any such findings. That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere.’

Lord Justice Peter Gibson Lord Justice Waller Lord Justice Neuberger
[2005] EWCA Civ 326, Times 24-Mar-2005, [2005] WTLR 587
Bailii
Wills Act 1837 9
England and Wales
Citing:
CitedHudson v Parker 1844
The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness ‘shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary’. He pointed to the . .
Appeal fromSherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
CitedBiogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
CitedBryan v White 1850
The court considered the proper execution of a will: ”Attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts’. . .
CitedRe Beadle 1974
Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed . .
CitedSmith and Smith v Smith 1969
The witnesses did not see the attestation clause on a will and although they saw the testatrix write something on the document, they did not see what was being written.
Held: Witnesses to the execution of a will need not know that the document . .
CitedBenmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
CitedGriffiths v Griffiths 1871
The court considerd the requirements for the proper execution of a will: ‘The statute says that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting to the fact that he saw the . .
DisapprovedIn the Estate of Benjamin, deceased 1934
The intention of a purported witness to the execution of a will is immaterial if the will is in proper form. . .
CitedRoberts v Phillips 1855
. .
CitedIn the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .
CitedIn the Estate of Bercovitz, deceased; Canning v Enever CA 1962
Upheld – The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. . .
CitedWright 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: . .
CitedWright v Sanderson 1884
The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor . .
CitedBarry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
CitedFuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
CitedHart v Dabbs ChD 6-Jul-2000
An executor under the will was a legatee and the sole residuary legatee. He was involved in the preparation of the will and organised the process of its execution. There was no professional assistance or involvement of any kind in the will-making . .
CitedFulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
See AlsoDaliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
. .

Cited by:
See AlsoDaliah Dorit Sherrington and others v Sherrington CA 22-Mar-2005
. .
CitedChannon 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 . .
See AlsoSherrington 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 . .
AppliedKentfield v Wright ChD 1-Jul-2010
The claimant disputed her mother’s will which left everything to her brother, challenging its execution. She said that the second witness had not been present when the will was signed.
Held: The will stood. Where a will appeared to be properly . .
CitedLim 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 . .
CitedNG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
CitedWilson 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, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.223780

Doodeward v Spence: 1908

(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.’
Higgins J (dissenting) said that no one could have property in another human being, live or dead.

Griffith CJ, Barton J, Higgins J
[1908] 6 CLR 40
Australia
Cited by:
ConsideredDobson 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 . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Wills and Probate

Leading Case

Updated: 11 November 2021; Ref: scu.195012

The Solicitor for the Affairs of HM Treasury v Doveton and Another: ChD 13 Nov 2008

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

Sir Mark Herbert QC
[2008] EWHC 2812 (Ch), [2009] BPIR 352
Bailii
Insolvency Act 1986 423(1)
England and Wales
Citing:
CitedHornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 November 2021; Ref: scu.377224

The Thomas and Agnes Carvel Foundation v Carvel and Another: ChD 11 Jun 2007

The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a further one, and created a trust. The claimant now sought removal of the executrix and to set aside earlier orders made in the administration of the Estate. The US courts had upheld the reciprocal and mutual wills, but the executrix had made applications to the court here without informing the court of the US proceedings, or the claimant of the proceedings.
Held: The applications succeeded. The obligations under a mutual will arose not under the wills themselves but under a trust created at the time when the wills were made. A court did not therefore have jurisdiction to remove an executor under the 1985 Act at the request of somebody not claiming under the will proved. However the Foundation was in a position to apply under the 1896 Act.
In summary proceedings it would be wrong to make any finding that the executrix had behaved dishonestly, but if not she had showed a failure to understand her duties, and the court was not inclined to believe that she would abide by court orders. The orders were made.
In proceedings under section 50 of the 1985 Act: ‘The overriding consideration is, therefore, whether the trusts are being properly executed; or, as he put it in a later passage, the main guide must be ‘the welfare of the beneficiaries.”

Lewison J
[2007] EWHC 1314 (Ch), [2007] 4 All ER 81
Bailii
Judicial Trustees Act 1896, Administration of Justice Act 1985 50
England and Wales
Citing:
CitedRe Smith 1880
Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal. . .
CitedRe Ratcliff 1898
The court has no inherent jurisdiction to remove a personal representative in that capacity. . .
CitedDufour 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 . .
CitedIn re Hagger; Freeman v Arscott ChD 1930
The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife . .
CitedBirmingham 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 . .
CitedRe Marshall’s Will Trusts 1945
The word ‘trust’ is to be given its ordinary meaning. Cohen J adopted, as its ordinary meaning, the definition then to be found in Underhill on Trusts: ‘A trust is an equitable obligation, binding a person (who is called a trustee) to deal with . .
CitedGleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
MentionedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedWytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
CitedNana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
CitedHouse of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
CitedKammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
CitedLetterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 November 2021; Ref: scu.253582

Di Placito v Slater and others: CA 19 Dec 2003

The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an undertaking the court should ask: ‘whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made.’
Potter LJ: ‘It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and ‘must be made in an unequivocal manner and must not run counter to any important public interest’, Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications ‘neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public’ (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case.’
A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences: ‘It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36.’

Lord Justice Laws Lord Justice Potter Lady Justice Arden
[2003] EWCA Civ 1863, Times 29-Jan-2004, [2004] 1 WLR 1605
Bailii
England and Wales
Citing:
CitedEronat v Tabbah CA 10-Jul-2002
. .
MentionedRe Hudson, Hudson v Hudson ChD 1966
The plaintiff’s marriage had been dissolved and her former husband was ordered to pay her maintenance at a specified rate. The husband subsequently filed evidence that he was unable to comply with that order but offered to undertake to pay one-third . .
CitedMiller and Another v Scorey and Others ChD 2-Apr-1996
Using disclosed documents in second action with similar parties may be a contempt, depending significantly upon whether any undertaking, express or implied was given. The court struck out an action where proceedings were commenced in reliance on . .
CitedBiguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
CitedWoodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
CitedAsiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
CitedEronat v Tabbah CA 10-Jul-2002
. .
CitedPurcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
CitedSiebe Gorman and Co Ltd v Pineupac Ltd 1982
The court should be expected to be reluctant to relieve a party of the consequences of a consent order. . .
CitedRopac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
CitedDermot Gerard Richard Walsh v Andre Martin Misseldine CA 29-Feb-2000
The claimant sought damages for injuries from 1989. His claim was pursued effectively, but a four-year delay ensued after 1994. He then sought to enlarge his claim greatly by introducing a lot of new issues of which the defendant’s insurers had no . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedHakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
CitedPfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
CitedPurdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .

Cited by:
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
CitedWarren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
CitedBarron and Others v Collins MEP QBD 22-Dec-2016
The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.188901

In Re D (Statutory Will); VAC v JAD and Others: ChD 16 Aug 2010

The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because the master said one was appropriate only where no will existed, and it was not a procedure to be used to challenge existing wills for doubt as to capacity or undue influence.
Held: The application succeeded: ‘Under section 4 (6)(a), one of the relevant factors to be considered by the Court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the ‘substituted judgment’ test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the Court to the protected person being remembered for having done the ‘right thing’ by his will, it is open to the Court, in an appropriate case, to decide that the ‘right thing’ to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. ‘

Hodge QC J
[2010] EWHC 2159 (Ch), [2011] 1 All ER 859, [2010] WTLR 1511
Bailii
Mental Capacity Act 2005 4(6)(a)
England and Wales
Citing:
CitedIn re P (Statutory Will) ChD 9-Feb-2009
A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring . .
CitedIn re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .

Lists of cited by and citing cases may be incomplete.

Health, Wills and Probate

Updated: 10 November 2021; Ref: scu.421525

Marley v Rawlings and Another (2): SC 18 Sep 2014

The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the error should bear the costs of such an action. However, the contingency fee aarrangements between the defendants’ solicitors and their counsel included a 100% uplift for ‘success’ where costs were ordered out of the estate. Since the agreement between the defendants and their solicitors could render the former liable for the latter’s disbursements, the proper order for costs was that the insurers, while paying the claimant’s costs and the defendants’ solicitors’ disbursements, should pay the unsuccessful defendant’s counsel’s base fees only where they agreed to disclaim the success fees they might otherwise have claimed.

Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2014] WLR(D) 402, [2014] UKSC 51, [2015] 1 AC 157, [2014] Fam Law 1682, [2014] WTLR 1511, [2014] 3 WLR 1015, [2014] 4 All ER 619, [2014] 5 Costs LR 905
Bailii Summary, SCBlog, Bailii, Bailli Summary, WLRD
England and Wales
Citing:
At CAMarley v Rawlings and Another CA 2-Feb-2012
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
At ChDMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Main JudgmentMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
CitedBimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .

Cited by:
CitedTrump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.536730

Stewart v Secretary of State for Work and Pensions: CA 29 Jul 2011

The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained that the refusal violated her right not to be discriminated against.
Held: The prisoner’s appeal failed. The system did not amount to direct discrimination: ‘The issue at the heart of this case is not whether prisoners are wrongfully denied access to income support for reasons referable to their status as prisoners, but whether they are wrongfully denied access to a funeral payment for such reasons. The short answer is that they are not. If the status in question was not ‘prisoner’ tout seul, but ‘a prisoner who is not entitled to income support’ then the answer would be different. But being a prisoner tout seul did not exclude Ms Stewart from entitlement to all qualifying benefits, and it did not therefore exclude her from entitlement to a funeral payment. Being a prisoner was not ‘the reason why’ she was refused a funeral payment.’
The refusal was accepted to be indirect discrimination. Nevertheless it was justified, because the discrimination was not against prisoners alone, and any adjustment would ‘in turn be subjected to complaint from all the other excluded groups who would complain that they were being unlawfully discriminated against, and in my judgment a decision to that effect in this case would justly expose the court to the charge that it is trespassing in territory in an area of social policy that is properly the preserve of the legislature.’

Rix LJ, Sir Henry Brooke, Dame Janet Smith
[2011] EWCA Civ 907, [2011] UKHRR 1048
Bailii
Public Health (Control of Disease) Act 1984 46(1), Social Security (Contributions and Benefits) Act 1992 138, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 7, Social Fund Maternity and Funeral Expenses (General) Regulations 2005 7, European Convention on Human Rights 14
England and Wales
Citing:
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedShamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedStec and Others v United Kingdom ECHR 6-Jul-2005
. .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedHumphreys v Revenue and Customs CA 11-Feb-2010
The court was asked as to entitlement to child tax credit where parents were separated but shared the care of the children.
Held: The discretion to be accorded to the legislature or executive is especially wide where the discrimination is . .
CitedShelley v The United Kingdom ECHR 4-Jan-2008
Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which . .
CitedEsfandiari and others v Secretary of State for Work and Pensions CA 23-Mar-2006
The claimant argued that the funeral benefits regime unlawfully discriminated against migrants because the 1987 Regulations did not permit payments to be made for a burial abroad, except as provided for by EU law.
Held: The argument was . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Benefits, Human Rights

Updated: 10 November 2021; Ref: scu.442416

Banks v Goodfellow: QBD 1870

Test for Capacity to Execute Will

The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.’
Held: The will was effective. English law gives testators ‘absolute freedom’ in the disposal of their property. However the court pointed to ‘a moral responsibility of no ordinary importance . . the instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection.’ To disappoint reasonable expectation of this kind is to ‘shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law’. English law ‘leaves everything to the unfettered discretion of the testator’ on the assumption that ‘the instincts, affections and common sentiments of mankind may safely be trusted to secure, on the whole, a better disposition of the property of the dead’ than stereotyped and inflexible rules. The court considered the test for testamentary capacity.
Cockburn CJ said: ‘It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Cockburn CJ
(1870) LR 5 QB 549
England and Wales
Citing:
ApprovedGreenwood v Greenwood 1776
‘If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.’ . .
ApprovedCharles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
CitedDen v Vancleve 1819
When asking as to the capacity of a testator, the court should ask: ‘was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?’ and ‘By the terms ‘a sound and disposing mind . .
CitedBurdett v Thompson 1878
. .

Cited by:
CitedEwing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
CitedClancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
CitedThompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedPotter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
CitedBillington (By Billington Her Next Friend) Billington, Warburton v Blackshaw CA 16-Dec-1997
The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt . .
CitedRobin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
CitedMasterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
CitedKostic v Chaplin and others ChD 15-Oct-2007
The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, . .
CitedJudy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
CitedBoughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
CitedCarr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
CitedScammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
CitedZorbas v Sidiropoulous (No 2) 10-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had . .
CitedPerrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
CitedKey and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
CitedPerrins 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 . .
CitedHawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
CitedSchrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .
CitedRam and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Leading Case

Updated: 10 November 2021; Ref: scu.181899

Re His Royal Highness The Duke of Windsor (Deceased): FD 15 Nov 2017

Royal Will: Seal to be broken for copyright query

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

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

Wills and Probate

Updated: 10 November 2021; Ref: scu.599579

In re Morris Deceased: ChD 1970

A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the pecuniary legacy given by cl 7(iv). The error was that of her solicitor in giving effect to her instructions.
Held: Latey J said: ‘The introduction of the words ‘Clause 7’ instead of ‘Clause 7(iv)’ was per incuriam. The solicitor’s mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix’s instructions and intentions were, and what he did was outside the scope of his authority.’ The fact that a will had been read over to a testator was not necessarily presumptive or conclusive proof that the testator approved the contents of the will. The court has a limited power to omit words from the probate on proof that they had been included in the will by fraud or mistake. Rectification as ‘a broad sense’ could only be ordered, through the omission from probate of words of which the Testator did not know and approve.
Where a testator has had the contents of a will brought to his or her attention and has executed it: ‘the inference would be that the testator knew and approved, but the point is that the court is not precluded from considering all the evidence to arrive at the truth, and this is so not only if fraud is suggested but also if mistake is suggested.
In my opinion, the approach of the court today is as stated by Sachs J in Crerar v Crerar. This case was not reported. . Sachs J said that ‘inquiries touching the validity of a testamentary disposition have always been considered matters touching the conscience of the court,’ and he rejected ‘the idea that there is any rule of law applicable to unusual cases which can so put that conscience into a strait-jacket as to preclude it from drawing inferences in the usual way and thus force the court to a decision which would, on the particular facts, be artificial’ sachs said the court had ‘to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law.’.’

Latey J
[1970] 1 All ER 1057, [1970] 2 WLR 865, [1971] P 62
England and Wales
Citing:
CitedGuardhouse v Blackburn 1866
. .
CitedAtter v Atkinson 1869
. .
CitedHarter v Harter 1873
. .
ApprovedGregson v Taylor ChD 1917
Hill J said: ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’ . .

Cited by:
CitedWalker 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 . .
CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
CitedIn 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 . .
CitedIn 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 . .
CitedSprackling and others v Sprackling and Another ChD 6-Nov-2008
Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage. . .
CitedLamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
CitedMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
CitedMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.241678

Dingle v Turner and Others: HL 16 Feb 1972

Gift to Specified person not Charitable

The testator left part of his property on charitable trusts for the relief of the poverty of ‘the poor employees’ of a company. The appellant argued that it was not a charitable gift, and that the gift failed.
Held: The purpose will not be charitable if the intention is to make a gift to a specified person, even if it is a gift to alleviate poverty. Here, the intention of the gift was to benefit the poor generally who fell within a certain description, rather than certain individuals. Since they were a ‘section of the public’, the gift was charitable and did not fail. (Majority) The fiscal advantages obtained by making a gift charitable should not be taken into account in assessing its motives and charitable status.
Lord Cross of Chelsea said: ‘In truth the question whether or not the potential beneficiaries of a trust can fairly be said to constitute a section of the public is a question of degree and cannot be by itself decisive of the question whether the trust is a charity. Much must depend on the purpose of the trust. It may well be that, on the one hand, a trust to promote some purpose, prima facie charitable, will constitute a charity even though the class of potential beneficiaries might fairly be called a private class and that, on the other hand, a trust to promote another purpose, also prima facie charitable, will not constitute a charity even though the class of potential beneficiaries might seem to some people fairly describable as a section of the public . . To establish a trust for the education of the children of employees in a company in which you are interested is no doubt a meritorious act; but however numerous the employees may be the purpose which you are seeking to achieve is not a public purpose.’

Viscount Dilhorne, Lord MacDermott, Lord Hodson, Lord Simon of Glaisdale and Lord Cross of Chelsea
[1972] 2 WLR 523, [1972] UKHL 2, [1972] AC 601
lip, Bailii
England and Wales
Citing:
ApprovedIn re Scarisbrick’s Will Trusts, Cockshott v Public Trustee CA 1951
Possible Charity for poor persons within an area
The court was asked whether a trusts for poor persons within a restricted category, the testator’s descendants, not meeting the usual requirement that the benefits be available to a wider section of the community, may be held charitable.
Held: . .
CitedIn re Compton; Powell v Compton CA 1945
The court considered the charitable status of a trust ‘for the education of Compton and Powell and Montague children’.
Held: It was not charitable. If the group of beneficiaries is distinguishable from other members of the community by a . .
CriticisedOppenheim v Tobacco Securities Trust Co Ltd HL 13-Dec-1950
Trustees were directed to apply certain income in providing for ‘the education of children of employees or former employees’ of a British limited company or any of its subsidiary or allied companies. The number of eligible employees was over . .

Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Leading Case

Updated: 10 November 2021; Ref: scu.174317

Re JS (Disposal of Body): FD 10 Nov 2016

Child’s Wish for post-mortem cryonic Preservation

JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents were divorced, and they differed as to what should be done.
Held: The form of application was for a specific issue order. JS had capacity, and there would be no inevitable practical obstacle: ‘All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.’
Applying the JSB case, with acknowledgement to the different statutory context, a prospective order was available, and granted injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies.

Peter Jackson J
[2016] Inquest LR 259, [2016] EWHC 2859 (Fam), (2017) 153 BMLR 152, [2016] WLR(D) 650, [2017] WTLR 227, [2017] Med LR 37, [2017] 4 WLR 1
Bailii, Judiciary
Human Tissue Act 2004, Children Act 1989 8, Wills Act 1837 8, Non-Contentious Probate Rules 1987 22(1)(c)
England and Wales
Citing:
CitedWilliams 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 . .
CitedRegina v Gwynedd County Council ex parte B and Another 1992
The ambit of the 1980 act does not extend to regulating events arising after a child’s death. . .
CitedFessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
CitedBorrows v HM Coroner for Preston QBD 15-May-2008
The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral. . .
CitedIbuna and Another v Arroyo and Another ChD 2-Mar-2012
The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (‘Congressman Arroyo’) to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines. . .
CitedAnstey v Mundle ChD 2016
When faced with a dispute as to the disposal of a deceased’s body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements . .
CitedCurtis v Sheffield CA 1882
Lord Jessel MR said: ‘Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the . .
CitedGillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
CitedPublic Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
CitedBurke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
CitedHartshorne 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 . .
AppliedIn re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
CitedTakamore v Clarke and others 18-Dec-2012
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
CitedHughes and Others v Bourne and Others ChD 27-Jul-2012
A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children, Health Professions

Leading Case

Updated: 09 November 2021; Ref: scu.571412

Kloosman v Aylen and Others: ChD 8 Mar 2013

The deceased had before his death sold his principle property and made substantial gifts to beneficiaries under his existing will. The parties disputed whether the gifts should be brought into the estate to set off against the gifts made in the will.
Held: On the facts as found the gift was not a portion as now defined, and did not adeem the interest in the will. The deceased had learned that he had bowel cancer and particularly would need care and support from this daughter. His intention was that the gifts would, in part, repay two daughters for what they had already spent taking on his care and in part would help finance the inevitable future costs of the deceased’s care and housing. The lifetime gifts therefore did not have the character of portions and the presumption against double portions did not arise. It was not inappropriate to make provision in the way that he had.

Vivien Rose (Sitting as a Deputy Judge of the Chancery Division)
[2013] EWHC 435 (Ch)
Bailii
Administration of Justice Act 1985
England and Wales
Citing:
AppliedIn re Cameron deceased ChD 1999
The court was asked whether a gift was a ‘portion’ made in order to establish a child in life or make substantial provision for him.
Held: The presumption against double portions arises because it is assumed that a parent only intends to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 09 November 2021; Ref: scu.471748

Re Benmusa: FD 14 Mar 2017

No Access to will of Princess Margaret

The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.’

Sir James Munby P FD
[2017] EWHC 494 (Fam)
Bailii
England and Wales
Citing:
CitedBrown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
CitedBrown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA 8-Feb-2008
The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 November 2021; Ref: scu.580988

Williams v Lawrence and Another: ChD 28 Jul 2011

The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in favour of one of the purchaser, one of the defendants, and therefore reduced in value.
Held: The effect of Regulation 12 was to allow such an application to go back much further than could happen in a normal insolvency, but in this case, at the time of the transfer, the parties knew of the estate’s debts. On the facts, no common intention to create a binding right was established, and therefore the sale was at a gross undervalue, and was to be set aside.

David Cooke J
[2011] EWHC 2001 (Ch)
Bailii
Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999)
England and Wales
Citing:
CitedLloyds 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 . .
CitedPascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
CitedKernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency, Trusts

Updated: 09 November 2021; Ref: scu.442271

Wright v Waters and Another: ChD 6 Nov 2014

The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her behalf, and he claimant said it had been a gift. On falling out, the claimant was said to have disowned the mother. The mother had left a letter explaining her refusal to disinherit her daugter.
Held: The claimant was an unreliable witness. Money had not been given to the claimant, but was to have been held in trust. Though it apeared that she had worked more extensively for her mother without payment, the clim n proprietary estoppel failed also: ‘I am not satisfied that there were sufficiently clear representations that were relied on by Patricia Wright. Equally I am not satisfied that mention of inheritance by Harold Waters was intended to be taken seriously or was one that might reasonably have been expected to have been relied on by Patricia Wright. ‘

Behrens HHJ
[2014] EWHC 3614 (Ch)
Bailii
Inheritance (Provision for Family and Dependants) Act
England and Wales
Citing:
CitedIn Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
CitedEspinosa v Bourke CA 1999
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
CitedIlott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
CitedRe Pearce, Deceased, Pearce v Pearce CA 25-Jun-1998
The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
CitedThorner 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: 09 November 2021; Ref: scu.538687

Ark and Others v Kaur and Others: ChD 17 Sep 2010

The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the will in the Punjab.
Held: The will had been properly executed under both UK and Indian law, and had been executed with full knowledge. As to the allegation of undue influence, there was no sufficient and reliable evidence either direct or indirect to establish coercion. Nor could the will be construed so as only to refer to the properties in India. The will was to be admitted.

Cooke J
[2010] EWHC 2314 (Ch)
Bailii
England and Wales
Citing:
CitedWingrove v Wingrove 1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
CitedIn re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
CitedHall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
CitedTyrell v Painton CA 1894
The proposed will had been made by the testatrix when ill. She had signed a first will two days earlier. Her doctor said she was exhausted and was drowsy and had complained to her. The treating doctor that she had been disturbed by the introduction . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 November 2021; Ref: scu.424102

Will of His Late Royal Highness The Prince Philip, Duke of Edinburgh, Re The: FD 16 Sep 2021

Publication and Admission of Will

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

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

Wills and Probate

Updated: 09 November 2021; Ref: scu.668230

Parker and Another v Felgate and Tilly: ChD 7 Jul 1883

Capacity to execute Will once instructions given

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

Sir James Hannen, President
(1883) 8 PD 171, [1883] UKLawRpPro 41
Commonlii
England and Wales
Cited by:
AppliedClancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
AppliedThomas v Jones 6-Mar-1928
. .
CitedIn the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another 1952
The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was . .
CitedCarr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
CitedPerrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
CitedPerrins 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 . .
ApprovedPereira v Pereira; Perera v Perera PC 23-Mar-1901
The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is . .
ApprovedBattan Singh v Amirchand PC 1948
(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand . .
AppliedRe Flynn ChD 1982
The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge . .
AppliedRe Flynn Deceased ChD 1982
An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack . .
CitedRam and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 09 November 2021; Ref: scu.186107

re Irish and Another: ChD 27 Sep 2019

Presumption of Death – Expedited Hearings

A declaration was sought under the 2013 Act. Although the Act requires a compulsory directions hearing and a separate disposal hearing, where the procedural steps as to advertisement and notifications had been complied with, and no person had come forward in the notice period, there being no further need for directions, the court might go on immediately after the directions hearing to hold and complete the disposal hearing.

Judge Paul Matthews sitting as a High Court judge
[2019] EWHC 2508 (Ch), [2019] 4 WLR 122, [2019] WLR(D) 529
Bailii, WLRD
Presumption of Death Act 2013
England and Wales

Wills and Probate, Litigation Practice

Updated: 09 November 2021; Ref: scu.642625

Saunders v Vautier: 7 May 1841

A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of the legal title in the property to him.
Held: The beneficiary was entitled to call for the property. The intention of the testator was that the beneficiary would ultimately take the property, but had merely sought to postpone the date on which this would happen. Beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct: ‘once something has been given to a person the court will not enforce any attempt to keep it out of his grasp until a later date.’

Lord Cottenham
(1841) 4 Beav 115 affd Cr and Ph 240, [1841] EWHC Ch J27, [1841] EWHC Ch J82, (1841) Cr and Ph 240, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282
Bailii, Bailii, Commonlii
England and Wales
Cited by:
CitedTod v Judith Cobb Lady Barton, William Godfrey Lukes Barton, The Royal Society of Chemistry, In re Barton (Deceased) ChD 20-Feb-2002
The deceased was an English scientist who died domiciled in Texas. His beneficiaries in England executed a deed of variation, but this would not be recognised in the law of Texas. The will expressly stated it was subject to the laws of England. . .
CitedGoulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
CitedNelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
CitedClarence House Ltd v National Westminster Bank Plc ChD 23-Jan-2009
The claimant landlord alleged that the defendant tenant had transferred the lease under a ‘virtual assignment’ and that this was in breach of its lease.
Held: The Abbey National case was not helpful. However, the arrangement was not a breach . .
CitedClarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
See AlsoSaunders v Vautier 5-Jun-1841
. .
CitedAkers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .

Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Leading Case

Updated: 09 November 2021; Ref: scu.182790

Singh and Others v Ahluwalia: CA 11 Dec 2012

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

Mummery LJ, Morgan J
[2012] EWCA Civ 1635
Bailii
England and Wales
Citing:
Appeal fromAhluwalia v Singh and Others ChD 6-Sep-2011
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.466961

Marley v Rawlings and Another: ChD 3 Feb 2011

A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had not intended to sign the document he had in fact signed. The 1982 Act allowed rectification only in the case of clerical error. Though the section should be interpreted generously, it was not capable of use to rectify such a mistake by amending the words of the will. The claim for rectification failed and the documentcould not be admitted to probate.

Proudman J
[2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477
Bailii
Administration of Justice Act 1982 20, Wills Act 1837
England and Wales
Citing:
CitedIn re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
CitedRe Price ChD 2006
. .
CitedIn the Goods of Hunt 1875
Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would . .
CitedClarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
CitedRe Meyer 1908
Two sisters made mirror codicils to their wills but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her . .
per incuriamRe Vautier 2000
(Royal Court of Jersey) The court considered a request for the rectification of a will: ‘To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power . .
CitedIn 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 . .
CitedGuardian Trust and Executors Company of New Zealand Ltd v Inwood and Others 1946
(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: ‘but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the . .
CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
CitedRe Brander 1952
(British Columbia Supreme Court) . .
CitedIn re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .

Cited by:
Appeal fromMarley v Rawlings and Another CA 2-Feb-2012
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
At First InstanceMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
At ChDMarley v Rawlings and Another (2) SC 18-Sep-2014
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 November 2021; Ref: scu.428428

Fuller v Strum: CA 7 Dec 2001

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

Lord Justice Peter Gibson, Lord Justice Chadwick, And, Lord Justice Longmore
[2002] WTLR 199, Times 22-Jan-2002, Gazette 14-Feb-2002, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087
Bailii
England and Wales
Citing:
CitedFulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
CitedBarry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
CitedIn the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Appeal fromFuller v Strum ChD 20-Dec-2000
Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .
See AlsoFuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Leave applicationFuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
CitedHart v Dabbs ChD 6-Jul-2000
An executor under the will was a legatee and the sole residuary legatee. He was involved in the preparation of the will and organised the process of its execution. There was no professional assistance or involvement of any kind in the will-making . .

Cited by:
CitedClancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
CitedThompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
See alsoFuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Full AppealFuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedSherrington 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 . .
CitedParker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
CitedCarapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
CitedScammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
CitedKey and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.166982

Ilott v Mitson and Others: CA 31 Mar 2011

The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and the charities (beneficiaries under the will) said that no payment should have been ordered at all.
Held: The claimant’s appeal succeeded, and the matter remitted for reconsideration as to quantum. The value judgment of a trial judge, who has undertaken the section 3 exercise and has reached a judgment on the evidence should not be lightly disturbed unless the conclusion reached is ‘plainly wrong’. The district judge here had asked himself the correct question, and it had been wrong to find that he had erred in law.
Arden LJ said: ‘The totemic phrase in section 2(1) of the 1975 Act is ‘reasonable financial provision’. This phrase has a constant meaning, but its application in any individual case must take account of the circumstances of the case and current social conditions and values. There were three notable value judgments by the District Judge in this case. In the first of these, the District Judge held in a passage already cited that the applicant was entitled to make her life with a partner of her choice and to have a family of her own. In the second of these, the District Judge held that it was reasonable for her to wish to remain at home for the time being rather than work (outside the home). In the third of these the District Judge held that families, such as those of the applicant and her husband, ‘were not all to be blamed for their lack of income which makes a claim for tax credits necessary and possible.’ These were evaluations for the District Judge to make in the circumstances of this case. In my judgment the conclusions of the District Judge cannot be said to be plainly wrong.
Indeed, these three value judgments made by the District Judge demonstrate how under the 1975 Act the court must make value judgments in order to arrive at a decision as to whether the provision made by a testatrix constituted reasonable financial provision. I am not concerned that a judge should be called on to make such judgments. It is a reality in the twenty-first century that judges are called upon to make judgments of this kind in different cases and in different circumstances. They must do so with such assistance as they can find in existing decided cases. If (as often happens) there are no decided cases, they must decide questions involving value judgments within four corners of the statutory framework and with the benefit of their own awareness and experience of society and social issues, and their own considered view of how such matters ought fairly to be decided in the society in which we live. It is worthy of note that there was no other way that the District Judge could have made the three value judgments discussed in this paragraph. Judges are not unaccountable for value judgments. Those value judgments can be reviewed on appeal . .’
Black LJ said: ‘A dispassionate study of each of the matters set out in section 3(1) will not provide the answer to the question whether the will makes reasonable financial provision for the applicant, no matter how thorough and careful it is. . . [S]ection 3 provides no guidance about the relative importance to be attached to each of the relevant criteria. So between the dispassionate study and the answer to the first question lies the value judgment to which the authorities have referred. It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts.’

Sir Nicholas Wall P, Arden, Black LJJ
[2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779
Bailii
Inheritance (Provision for Family and Dependants) Act 1975 2(1) 3
England and Wales
Citing:
CitedIn Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Appeal fromH v Mitson and Others FD 1-Dec-2009
. .
CitedRe Gregory (Deceased), Gregory v Goodenough CA 1970
Fenton Atkinson LJ sought to discourage appeals in cases involvimg small estates. . .
CitedCameron v Treasury Solicitor 1996
The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between . .
CitedSnapes 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 . .
CitedIn re Dennis (Deceased) 1981
The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of . .
CitedMyers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased) FD 2004
The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
Held: Munby J made an award under the Act to an adult child of the deceased, part of which . .
CitedRe Pearce (Deceased) CA 4-Nov-1998
An adult child succeeded in a claim under the Act against his father’s estate, having worked on his fathers farm for many years and for very low pay against a promise that he would inherit the house on the father’s death. . .
CitedEspinosa v Bourke CA 1999
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
CitedFielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .

Cited by:
See AlsoIlott v Mitson and Others FD 3-Mar-2014
The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her andpound;50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
CitedWright v Waters and Another ChD 6-Nov-2014
The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her . .
See AlsoIlott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
First AppealIlott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 November 2021; Ref: scu.431607

Jump and Another v Lister and Another: ChD 12 Aug 2016

Omnibus Survivorship Clauses

Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the effect of an omnibus survivorship clause.
Held: ‘the question is not one as to the meaning of the survivorship clause but rather as to its application. Is it what has been termed an ‘omnibus’ survivorship clause, which applies throughout the will generally, or is its application confined to the secondary gift, which takes effect only if the primary gift to the spouse of the maker of the relevant will fails?’ This was not a case of a mistake in the draughtsmanship.
As to the burden of costs: ‘I am entirely satisfied that in this case the defence has been conducted, through Mr Hewitt, perfectly properly but for the benefit of the defendants themselves (or their professional indemnity insurers). The construction issue has been defended, not for the benefit of the estate, but for the benefit of the solicitors. They have lost; and, in my judgment, costs should follow the event. So I will order the defendants to pay the costs of this Part 8 claim. That is entirely separate from the outcome of any related professional liability claim.’

Hodge QC HHJ
[2016] EWHC 2160 (Ch)
Bailii
Administration of Justice Act 1982 21
England and Wales
Citing:
CitedBoyes v Cook CA 1880
When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James . .
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
CitedSammut and others v Manzi and others PC 4-Dec-2008
(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, . .
Not applicableChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedRe Buckton, Buckton v Buckton ChD 1907
An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek . .
CitedReading v Reading ChD 2015
The court was asked to construe a provision in the will.
Held: Ultimately a reference to ‘issue of mine’ was to be read to include the testator’s stepchildren despite initially observing that: ‘The ordinary and natural meaning of the word . .
CitedThe Royal Society v Robinson and Others ChD 17-Nov-2015
Claim to construe a Will or in the alternative to rectify it, or in the further alternative for it to be admitted to probate with certain words omitted.
Held: The court construed a reference to ‘the United Kingdom’ as including the Channel . .
CitedSlattery and Others v Jagger and Others ChD 10-Nov-2015
The court read the words ‘to my wife’ into a specific devise of a property from which they had accidentally been omitted by a process of construction. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 November 2021; Ref: scu.570846