Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm): CA 11 Apr 2001

The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect.

Citations:

[2001] EWCA Civ 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedOtter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Appeal fromCorbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) ChD 25-May-2000
The testatrix had executed her will, but it was left undated pending preparation and execution of a second deed. The will failed, and her executors sought damages from her solicitors for negligence. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 23 May 2022; Ref: scu.135244

Hope v Hope: 12 Mar 1847

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 22 May 2022; Ref: scu.300942

Grant v Grant: 1870

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

Judges:

Blackburn J

Citations:

(1870) LR 5 CP 727

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 20 May 2022; Ref: scu.450443

Atkinson v Morris: CA 1897

The plaintiff was able to prove that the testator had said she had destroyed one copy of a will she had made in duplicate.
Held: Though that evidence would have had the effect of revocation, it was hearsay and inadmissible and her intentions were, to the annoyance of the court, frustrated. Hearsay evidence is inadmissible on the issue of due execution.

Citations:

[1897] PD 40

Jurisdiction:

England and Wales

Cited by:

CitedParks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
CitedParks v Clout CA 22-Oct-2002
Application for leave to make second appeal. Brother of deceased alleging that the widower had obtained probate by falsely representing that no will had been made by the deceased.
Held: Insofar as the judge had based his conclusion on an . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 May 2022; Ref: scu.213650

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

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

Judges:

Chadwick LJ

Citations:

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

Links:

Bailii

Statutes:

Partnership Act 1890 27 32 33 39

Jurisdiction:

England and Wales

Citing:

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

Company, Wills and Probate

Updated: 19 May 2022; Ref: scu.82291

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

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

Citations:

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

Links:

Bailii, Bailii

Statutes:

Administration of Estates Act 1925

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 May 2022; Ref: scu.81859

Harlow v National Westminster Bank Plc and Others; in re Jennings Dec: CA 13 Dec 1993

The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in comfortable circumstances, on a good income from two businesses.
Held: The claim failed. A past lack of maintenance could not to be relied on for claims from estates under the Act. The dependency on the deceased for a claimant based upon having been dependent upon the deceased must immediately precede the death. For such a claim there must shown be some special circumstance, perhaps a moral obligation of the deceased towards him, before the first question can be determined in his favour.
As to Re Coventry: ‘It was established by the decisions of Oliver J and this court in re Coventry decd. that, on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour. Although the decisions were in terms confined to the case of a son, the principle of them is applicable no less to the case of a daughter and, with developments in the structure of society, instances of its application in such cases may become more common. In that case Oliver J was of the opinion that financial provision was reasonably required for the applicant’s maintenance. But his application failed because the deceased owed him no moral or other obligation and no other special circumstance was shown.’

Judges:

Lord Justice Nourse, Lord Justice Henry And Sir John May

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

ExplainedIn re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
CitedRe Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
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 . .
CitedRe Callaghan, deceased 1984
An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council . .

Cited by:

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

Wills and Probate

Updated: 19 May 2022; Ref: scu.81244

Hamlin v Hamlin: CA 1986

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

Judges:

Kerr LJ

Citations:

[1986] Fam 11

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 10

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.545896

Re J(C): CoP 2012

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

Judges:

Lush J

Citations:

[2012] WTLR 121

Statutes:

Mental Capacity Act 2005

Cited by:

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

Wills and Probate, Health

Updated: 18 May 2022; Ref: scu.510003

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

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

Citations:

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

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

Harter v Harter: 1873

Judges:

Hannen P

Citations:

[1873] LR 3 P and D 11

Cited by:

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 . .
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 . .
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: 18 May 2022; Ref: scu.450180

Guardhouse v Blackburn: 1866

Judges:

Lord Penzance

Citations:

[1866] LR 1 P and D 109

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.450178

Parfitt v Lawless: 1872

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

Citations:

[1872] LR 2 P and D 462

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.450182

Re Hughes: 1943

Citations:

[1943] Ch 296

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.450448

In Re Vos; Dick v Kendall Freeman: 2006

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

Judges:

Chief Registrar Baister

Citations:

[2006] BPIR 348

Statutes:

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

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 18 May 2022; Ref: scu.442539

Re Vautier: 2000

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

Citations:

2000 JLR 351

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.428468

Schaefer v Schuman: PC 1972

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

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Lloyd v Harvey: 23 Jun 1832

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 18 May 2022; Ref: scu.319657

Saunders v Vautier: 5 Jun 1841

Citations:

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

Links:

Commonlii

Citing:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.308943

Burrows v Walls: 10 Mar 1855

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

Citations:

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

Links:

Commonlii

Cited by:

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

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.292216

Cattermole v Prisk: 2006

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

Judges:

Norris J

Citations:

[2006] 1 FLR

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.277385

Re Smith: 1880

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

Citations:

(1880) 42 Ch D 302

Cited by:

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

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.267735

Holtham v Arnold: 1986

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

Judges:

Hoffmann J

Citations:

[1986] 2 BMLR 123

Cited by:

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

Wills and Probate

Updated: 18 May 2022; Ref: scu.267632

Re Seaford Dec’d: CA 1968

A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made.
Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband’s death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.

Judges:

Willmer LJ, Davies LJ

Citations:

[1968] P 53

Cited by:

CitedRe Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Wills and Probate

Updated: 18 May 2022; Ref: scu.267521

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

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

Citations:

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

Wills and Probate

Updated: 17 May 2022; Ref: scu.77810

In re Groos Estate: 1904

Citations:

[1904] P 269

Statutes:

Wills Act 1861 3

Cited by:

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

Wills and Probate

Updated: 17 May 2022; Ref: scu.249364

Escritt v Escritt: 1981

Citations:

[1982] 3 FLR 280

Statutes:

Administration of Justice Act 1975 4

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 17 May 2022; Ref: scu.243300

In re Salmon (Deceased): 1981

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

Judges:

Megarry Ch

Citations:

[1981] Ch 167

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 17 May 2022; Ref: scu.243299

Bryan v White: 1850

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

Judges:

Dr. Lushington

Citations:

(1850) 2 Rob Ecc 315

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.223791

Hudson v Parker: 1844

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

Judges:

Dr. Lushington

Citations:

(1844) 1 Rob Ecc 14

Statutes:

Wills Act 1837

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.223790

Re Beech: 1923

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

Judges:

Salter J

Citations:

[1923] P 46

Jurisdiction:

England and Wales

Cited by:

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, . .
CitedIn the Estate of Knibbs, deceased. Flay v Trueman 1962
Wrangham J said: ‘As Salter J said in Beech’s case: ‘I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide . .
CitedAyling v Summers and Others ChD 14-Sep-2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.214015

Vaughan v Mark of Headfort: 1840

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

Judges:

Shadwell VC

Citations:

(1840) 10 SIM 639

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.214014

Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec): ChD 26 Jan 2001

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

Judges:

John Behrens

Citations:

Unreported, 26 January 2001, (2001) WTLR 493

Statutes:

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

Jurisdiction:

England and Wales

Citing:

ApprovedRe Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
CitedStead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
CitedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .

Cited by:

CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.213640

Re Hammersley: 1965

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

Citations:

[1965] Ch 481

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 16 May 2022; Ref: scu.198159

Davis v Davis: CA 1993

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

Judges:

Thorpe J

Citations:

[1993] 1 FLR 54

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2

Jurisdiction:

England and Wales

Cited by:

CitedKrubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.196906

Moody v Stevenson: CA 12 Jul 1991

The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose.
Held: The court considered the application of section 3(2): ‘and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.’
Waite J said: ‘The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law.’ and ‘In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?’ If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?” and ‘The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce.’ In this case, the result was an order permitting him to continue to occupy the house.

Judges:

Mustill LJ and Waite J

Citations:

[1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-1991, Times 30-Jul-1991

Statutes:

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

Citing:

CitedRe Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
CitedIn re Styler 1942
. .

Cited by:

CitedJessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Not preferredKrubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
CitedBarron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 16 May 2022; Ref: scu.196902

Re Besterman, decd: CA 1984

In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable’ is nowhere mentioned, although the parties’ financial needs – which have been construed to mean `reasonable requirements’ – constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard’ and the overriding consideration is what is `reasonable’ in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court’s attention.’

Judges:

Oliver LJ

Citations:

[1984] Ch 458

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2, Matrimonial Causes Act 1973 25

Cited by:

CitedMoody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
CitedJessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
ApprovedElizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
PreferredKrubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
CitedBarron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 16 May 2022; Ref: scu.196901

Clarke v Bruce Lance and Co: CA 1988

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

Judges:

Balcombe LJ

Citations:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Professional Negligence, Wills and Probate

Updated: 16 May 2022; Ref: scu.188810

Gurney v Gurney: 15 Mar 1855

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

Citations:

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

Links:

Commonlii

Statutes:

Wills Act 1937 15

Jurisdiction:

England and Wales

Wills and Probate

Updated: 16 May 2022; Ref: scu.182731

In re Rees: CA 1950

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

Judges:

Lord Evershed MR, Cohen, Asquith LJJ

Citations:

[1950] 1 Ch 204

Cited by:

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.535826

In re Gansloser’s Will Trusts: CA 1952

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

Judges:

Lord Evershed MR

Citations:

[1952] Ch 30

Jurisdiction:

England and Wales

Cited by:

CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.519435

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

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

Citations:

[1915] 1 Ch 673

Cited by:

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.510140

Casimir v Alexander: 2001

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

Citations:

[2001] WTLR 939

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.510023

Re Quinton Dick: 1926

Citations:

[1926] Ch 992

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.450447

Tyrrell v Painton: CA 1894

The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin and the discussion of circumstances which might excite the court’s suspicion, Lindley LJ said: ‘[W]herever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.’

Judges:

Lindley LJ

Citations:

[1894] 1 P 151

Citing:

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. . .

Cited by:

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

Updated: 15 May 2022; Ref: scu.450176

Espinosa v Bourke: CA 1999

The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed her application, holding that whilst the deceased had a moral obligation to the applicant, based both on a promise by the deceased to leave shares previously belonging to his wife to the daughter, and on the daughter’s care for the deceased during his lifetime, that moral obligation had been discharged by the deceased’s financial support for the daughter during his lifetime.
Held: Her appeal succeeded. the claimant was awarded andpound;60,000 from the total net estate of andpound;196,000. The Court attached weight to the claimant’s assertion that her father had promised her mother that those assets that she had left directly to her husband would pass to her.
Butler-Sloss LJ summarised the arguments presented: ‘Mr Norris QC for the appellant submitted that the judge fell into error in his approach to the claim. He concentrated on the issue of moral obligation and did not consider the criteria under s 3(1) as a whole. Mr Norris submitted that the most significant factor for the court to take into account was the applicant’s needs and resources and the judge failed, despite the evidence before him, to make any findings at all about the financial position of the appellant: s 3(1)(a). An adult child was in no special position and this appellant was, at the time of death, dependent upon the deceased. At the time of the hearing her financial position was precarious. The judge, having found that a moral obligation existed, was in error in concluding that it had been discharged.
Mr Herbert QC submitted that the judge had to make a value judgment and the appellate court should not interfere unless he was plainly wrong. A court should be reluctant to disturb a will. An adult child capable of earning a living had a big hurdle to overcome unless moral obligation or special circumstances could be established. He accepted that the judge did not make findings about the appellant’s financial position but submitted that on the facts of this case it was not necessary to do so. In any event it must be inferred that the judge considered it was a case where the appellant had needs in order for him to go on and consider the moral obligation. The appellant had never provided evidence nor sought to ask for details of the portfolio shares inherited by the deceased from his wife and there was no evidence about it. At the time of the trial the appellant had bought a business and her present financial position was adequate. He submitted that the judge was entitled to come to the conclusion that the contribution made by the deceased during his lifetime together with the conduct of the appellant discharged any obligation he might have towards her.’
Butler-Sloss quoted her own judgment in Re Hancock and said: ‘I have drawn attention to the passages above from earlier decisions of this court in order to show the way in which the words ‘moral obligation’ and ‘special circumstance’ have been applied in the judgments. Subsection (1)(d) refers to ‘any obligations and responsibilities’. Plainly those obligations and responsibilities extend beyond legal obligations and that is why, in my view, the word ‘moral’ has been used to underline and explain that the deceased’s obligations and responsibilities are not to be narrowly construed as legal obligations but to be taken into account in a broad sense of obligation and responsibility. Any other meaning of ‘moral’ (such as the distinction between right and wrong, see Concise Oxford Dictionary) would more appropriately be considered under (g). There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)-(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator’s dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act.
Applying these propositions to the present appeal, in my judgment the judge did fall into error by focusing too much upon the requirement for an adult child to show a moral obligation. At the stage that he decided that the moral obligation had been discharged, he failed to put the other criteria, particularly needs and resources of the appellant, into the balancing exercise. In the light of the way in which the case was presented to him, I have some sympathy with the judge’s approach to his decision. We were also told that it was an extempore judgment on the last day of his sitting in Manchester. Nonetheless his approach to the value judgment he had to make was flawed and his decision cannot stand.’

Judges:

Butler-Sloss LJ

Citations:

[1999] 1 FLR 747

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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 . .

Cited by:

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, . .
CitedGarland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.431727

In Re Abram: 1996

Citations:

[1996] 2 FLR 379

Cited by:

CitedGarland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.432719

Re Marsland: 1939

The testator had made his will and contracted not to change it.
Held: A contract not to revoke a will is subject to contingencies. Revocation by operation of law on remarriage is not a breach of such a contract results from the operation of law. The testator could not be prevented from altering his will, but the other party to the contract may be free to bring an action for breach of contract.

Citations:

[1939] Ch 820

Wills and Probate

Updated: 15 May 2022; Ref: scu.424444

Aldrich v Attorney-General: ChD 1968

Judges:

Ormrod L

Citations:

[1968] P 281

Jurisdiction:

England and Wales

Citing:

CriticisedIn the Estate of Wayland 1951
Where a testator makes will in different jurisdictions, if each will deals only with property in a different country, the later will does not revoke the earlier one even if it does contain a revocatory clause. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.424269

Re Stable, deceased. Dalrymple v Campbell: 1918

It is not necessary for the validity of a privileged (nuncupative) will that the testator knew that he was making a will: what is required is that he ‘intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death.’ ‘at sea’ meant being engaged on a voyage or on work connected with the actual navigation of the sea.

Judges:

Horridge J

Citations:

[1918] P 7

Jurisdiction:

England and Wales

Cited by:

CitedAyling v Summers and Others ChD 14-Sep-2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.375762

St John v Bishop of Winton: 1774

One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: ‘All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;’ (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.

Citations:

[1774] EngR 31, (1774) 1 Cowp 94, (1774) 98 ER 985

Links:

Commonlii

Wills and Probate, Land

Updated: 15 May 2022; Ref: scu.373887

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; Ref: scu.372193

Jones v Randall: 1 Dec 1819

Bequest of an annuity to the children of A. in equal shares and proportions, to continue during their lives and the life of the survivor of them. The children take as tenants in common, and there is no survivorship between them by implication ; therefore the share of one dying goes to its representative.

Citations:

[1819] EngR 741, (1819) 1 Jac and W 100, (1819) 37 ER 313

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.331944

Swaffield v Orton: 2 Jun 1847

A testator, after bequeathing to his daughter (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to and to be equally divided between his grandson and granddaughter (by name) as tenants in common ; but in case of the death of the granddaughter, under twenty-one and unmarried, in the lifetime of the grandson, or in case of the death of the grandson in the lifetime of the granddaughter, under twenty-one, he bequeathed the whole to the survivor ; and, after directing payment, during the minority of the grandchildren, for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the principal of the share of his grandchildren in the residue, and directed that his grandchildren respectively should not be entitled to receive his or her share, or the accumulations, until after the death of their mother (the annuitant). The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, when she became entitled to the absolute and immediate possession of any part of the residuary estate, the same and all accumulations should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the granddaughter, during her mother’s lifetime, for a transfer of the fund : Held, that the direction to accumulate in the will was precarious and ineffectual, and was not rendered otherwise by the settlement, and that the granddaughter’s moiety became capital at her marriage, and that the accumulations since that period belonged to her for her separate use.

Citations:

[1847] EngR 576, (1847) 1 De G and Sm 326, (1847) 63 ER 1088

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.301192

Miles v Miles: 12 Jan 1866

By his will, the testator gave ‘all that my messuage, partly freehold and partly leasehold,’ in Cannon Street, according to the nature and tenure thereof, respectively, in trust for his widow for life, or, as to the leaseholds, for so long as the term and interest in them should exist, with remainder over. After the date of his will, the reversion in fee of the leaseholds was purchased by, and conveyed to, the testator. Held, that the fee of the whole passed under the specific gift of ‘my messuage’ at C., and that the rent of the devise was descriptive.

Citations:

[1866] EngR 53 (B), (1866) 35 Beav 191

Links:

Commonlii

Wills and Probate

Updated: 15 May 2022; Ref: scu.280764

Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased): FD 2004

The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
Held: Munby J made an award under the Act to an adult child of the deceased, part of which was to pay off debts incurred by the claimant. However, these were debts for living expenses incurred after the date of death of the deceased, and Munby J excluded from his award any sum towards her debts incurred before the date of death.

Judges:

Munby J

Citations:

[2004] EWHC 1944 (Fam), [2008] WTLR 851

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

CitedBahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
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, . .
CitedGarland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.277860

Smith v Smith and Others: ChD 12 Jul 2001

The claimant had executed a voluntary disclaimer, under which he renounced all his expectation under a will. The testator was still alive. After her death, the executors relied upon the disclaimer, and the applicant said it was ineffective. He was correct. A disclaimer operates as an avoidance, not as a disposition. In order to be effective there must be some real interest upon which it could bite. An expectancy under a will was not such an asset, and the disclaimer was ineffective. Also, no consideration had been given for the disclaimer, neither could it be treated and enforced as an agreement by the executors.

Citations:

Times 18-Jun-2001, Gazette 12-Jul-2001

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.89347

In Re Estate of Monica Dale Dec, Proctor v Dale: ChD 11 Feb 1993

The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her will, but was under a binding trust to deal with the assets subject to the mutuality trust in accordance with that trust. With the rules on mutual wills, the element of mutuality operates to extend the enforceability to allow others beyond the couple making the wills to enforce the gifts agreed to be made. The aim of the principle was to prevent one party who transferred assets relying upon the mutuality of the wills to protect them, from being defrauded. The doctrine did not depend upon the second testator having received a benefit under the first will. To be enforceable there had to be a legally binding contract to make and not to revoke wills and one testator had had to have died having performed his or her part of that bargain.

Judges:

Morritt J

Citations:

Gazette 07-Apr-1993, Times 16-Feb-1993, Independent 14-Apr-1993, [1993] 4 All ER 129

Citing:

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 . .
CitedLord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 15 May 2022; Ref: scu.81867

D’Abo v Paget and Others (No 2): ChD 10 Aug 2000

Where a beneficiary having brought successful action against the trust fund, the rule in In re Buckton should still apply, but where the trustees could have brought the same action themselves, and had been ready and willing to do so, the beneficiary should not be awarded costs out of the trust fund. Under the new procedure, the court should take a more robust attitude to such claims. In effect the sole reason for the claimant’s participation was to make a claim for costs if the trustees failed.

Citations:

Gazette 05-Oct-2000, Times 10-Aug-2000

Trusts, Wills and Probate, Costs

Updated: 15 May 2022; Ref: scu.79774

Re 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 property over which he has control (which is called the trust property) for the benefit of persons (who are called the beneficiaries or cestuis que trusts), of whom he may himself be one, and any one of whom may enforce the obligation.’

Judges:

Cohen J

Citations:

[1945] Ch 217

Cited by:

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

Wills and Probate

Updated: 15 May 2022; Ref: scu.267736

Twist v Tye: 1902

The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her testamentary capacity.
Held: They had not acted improperly, but they had taken a view about the testatrix which turned out to be mistaken. The executors had taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event.

Judges:

Sir Gorell Barnes

Citations:

[1902] P 92

Citing:

DistinguishedBoughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .

Cited by:

CitedKostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
EndorsedRe Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 14 May 2022; Ref: scu.263525

In re Allen’s Estate: 1945

A will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made.

Citations:

[1945] 2 All ER 264

Cited by:

CitedDellar v Zivy and others ChD 9-Oct-2007
Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 14 May 2022; Ref: scu.259863

Ministry of Health v Simpson; In re Diplock dec: HL 1950

The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an estate.
Lord Simonds was clear that the principles with which he was dealing related to the administration of assets of a deceased person, and: ‘The broad fact remains that the Court of Chancery in order to mitigate the rigour of the common law or to supply its deficiencies established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid.’
Lord Simonds did not accept that a claim should not lie against a person who had received a legacy in good faith and then spent it, without knowledge of any flaw in his title: ‘My Lords, I find little help in such generalities. Upon the propriety of a legatee refusing to repay to the true owner the money that he has wrongly received I do not think it necessary to express any judgment. It is a matter on which opinions may well differ. The broad fact remains that the Court of Chancery, in order to mitigate the rigour of the common law or to supply its deficiencies, established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid. No doubt the plaintiff might by his conduct and particularly by laches have raised some equity against himself; but if he had not done so, he was entitled to be repaid. In the present case the respondents have done nothing to bar them in equity from asserting their rights. They can only be defeated if they are barred at law by some Statute of Limitations.’

Judges:

Simonds L

Citations:

[1951] AC 251, (1950) 2 All ER 1137

Jurisdiction:

England and Wales

Citing:

Appeal fromIn re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .

Cited by:

CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
MentionedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 14 May 2022; Ref: scu.259533

Re Grant’s Will Trusts: ChD 1980

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

Judges:

Vinelott J

Citations:

[1980] 1 WLR 360

Citing:

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

Cited by:

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

Trusts, Wills and Probate

Updated: 14 May 2022; Ref: scu.245260

In the Estate of Austin: 1929

A former solicitor, who had been struck off the Roll for professional misconduct, propounded a will under which he was named as an executor and the residuary legatee. The will which the former solicitor had prepared contained an unusual attestation clause stating that the will had the deceased’s knowledge and approval.
Held: The circumstances were enough to raise suspicion. The judge was not satisfied that the deceased understood the effect of the will. The onus of proof falling on its propounder had not been satisfied. The court pronounced in favour of some legacies, but not of others.

Judges:

Swift J

Citations:

(1929) SJ 545

Cited by:

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

Wills and Probate

Updated: 14 May 2022; Ref: scu.241761

The Law Society of the United Kingdom v Waterlow Brothers and Layton: HL 1883

There was a claim that there had been a breach of section 2 of the 1843 Act by law stationers (who had had various dealings with the Probate registry under the supervision of solicitors). The Rules of the Probate Court required applications for probate to be made, if not by the executor, then by a proctor, solicitor or attorney.
Held: If some step in a proceeding is required to be done only by the party or his solicitor, then if that step is taken by an unqualified person (not being the party), that person will necessarily be acting as a solicitor within the meaning of section 2 of the 1843 Act. such an application was ‘a solicitor’s or proctor’s business’. The claim was dismissed. The stationers were simply executing instructions to do ministerial acts in order to save the real solicitor from the trouble and expense of doing them: they had not been practising as solicitors themselves. In considering whether there had been a breach of section 2, the House of Lords proceeded on the footing that to act as a solicitor is to do what may only be done by a qualified practitioner. Lord Bramwell: ‘I am of the opinion that they have not; and I am of opinion that they have not because they have not; and really that is the only answer which one can give . . ‘

Judges:

Lord Bramwell

Citations:

(1883) 8 App Cas 407

Statutes:

Solicitors Act 1843 2

Jurisdiction:

England and Wales

Cited by:

CitedAndre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Wills and Probate

Updated: 14 May 2022; Ref: scu.237581

In re Evans Dec’d: 1999

Where the administration of a deceased’s estate remained incomplete the claimants rights to receive their share or interest had not yet accrued, and the limitation period had not yet commenced.

Citations:

[1999] 2 All ER 777

Wills and Probate

Updated: 13 May 2022; Ref: scu.223966

Inland Revenue Commissioners v Hawley: 1928

When a legatee of shares received them more than a year after the death, he was not treated as receiving all the accrued dividends as income of the year in which the shares became vested in him, but rather, by relation back to the death, in the year in which each dividend accrued.

Citations:

[1928] 1 KB 578

Cited by:

CitedJemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Wills and Probate

Updated: 13 May 2022; Ref: scu.223514

In Re Beaney deceased: ChD 1978

A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the property to be disposed of had not been explained to the mother. The donor could not understand the relevant transaction and its effects without explanation. ‘Mother should have been in a condition to fully understand; (1), that she was disposing of her only asset of value and depriving herself of title to it; (2), that she was thereby pre-empting the provisions of her Will and, (3), that she was preferring one child and cutting out the others from all benefit.’ and
‘The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of a gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor’s only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all of the potential donees and the extent of the property to be disposed of.’

Judges:

Martin Nourse QC

Citations:

[1978] 1 WLR 770

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 13 May 2022; Ref: scu.219625

Capron v Capron: 1874

By a will made before the 1870 Act, but amended by a codicil after the Act commenced to the use of his wife with remainders over. After her death having inherited the property, the parties disputed the apportionment of the rents.
Held: The rents were to be apportioned under the 1870 Act. The court noted that an equivalent result would have obtained without the codicil.

Judges:

Malins V-C

Citations:

(1874) 29 LT 826, [1874] LR17 Eq 288, 43 LJ Ch 677, 22 WR 347

Statutes:

Apportionment Act 1870

Jurisdiction:

England and Wales

Cited by:

CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Wills and Probate

Updated: 13 May 2022; Ref: scu.215868

Re Callaghan, deceased: 1984

An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council house at a most advantageous price. ‘I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased’s intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff’s needs.’ and he made that provision by way of a lump sum: ‘That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance.’ The claimant had demonstrated a need: ‘the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application.’

Judges:

Booth J

Citations:

[1985] Fam 1, [1984] 3 All ER 790

Statutes:

Inheritance (Provision for Family and dependants) Act 1975

Cited by:

CitedHarlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 13 May 2022; Ref: scu.214191

In the Goods of McLean: 1950

The presumption of regularity raises a probability that a will has been duly attested.

Citations:

[1950] IR 180

Jurisdiction:

England and Wales

Cited by:

CitedRother District Investments Limited v Corke, Orr, Richards ChD 20-Jan-2004
The court was asked as to the legal effect of a purported peaceable re-entry and forfeiture of a lease by a purchaser of the reversion prior to registration of the purchaser as proprietor at HM Land Registry.
Held: The appeal was denied. What . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.211371

Troja v Troja: 1994

(New South Wales) The court explained the application of the forfeiture rules in cases involving murder. Historically: ‘In a time of attainder, forfeiture, and common exaction of the death penalty following conviction for murder, the niceties of the civil property claims of the perpetrator of a homicide tended to be given less prominence. The abolition of criminal forfeiture, the repeal of the civil impediments upon suing, and the reduction, and final abolition, of the death penalty, have presented the legal system with new problems affecting property law. The so-called ‘forfeiture rule’ was one of the solutions devised to fill the gaps left following the abolition of the old rule. ‘ and ‘A search for a rule more flexible than the absolute legal rule stated in Cleaver, and in subsequent English cases, was soon seen to be necessary because of the grossly unjust consequences which that rule, in its full rigour, produced, both for the perpetrator of the homicide, and others taking through that person. In a word, the absolute rule, whilst apparently defensive of human life, paid no regard to the virtually infinite variety of circumstances in which a homicide may occur, and the ameliorative circumstances that may sometimes exist, especially in a domestic situation.’

Judges:

Kirby P

Citations:

(1994) NSWLR 269

Jurisdiction:

Australia

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 . .

Cited by:

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

Crime, Wills and Probate

Updated: 13 May 2022; Ref: scu.199532

Re S deceased: 1996

The court considred the application of the Act: ‘ such was the deliberate nature of his violent attack on his wife that the forfeiture rule of public policy applies so as to disentitle the plaintiff from any benefit he would otherwise take as a result of his crime.’

Citations:

[1996] 1WLR 325

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 13 May 2022; Ref: scu.199531

In re Giles Deceased: 1972

A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule should not apply.
Held: The court rejected any attempt to limit the common law rule to cases involving real moral culpability.
Sir John Pennycuick V-C said: ‘Now I do not think that I am concerned to analyse the ground upon which the courts have established the rule of public policy. It is sufficient to say that the rule has been established and that the deserving of punishment and moral culpability are not necessary ingredients of the type of crime to which the rule applies, that is, culpable homicide, murder or manslaughter’ and ‘In the present case, the widow was convicted pursuant to section 2 of the Homicide Act 1957 of manslaughter by reason of diminished responsibility. It is contended, on her behalf, that such a conviction does not fall within the general principle laid down in the cases to which I have referred. On the face of it, it seems to me that such a conviction does plainly fall within the scope of that principle. The principle is, to use a summary expression of Lord Atkin in the Beresford case [1938] AC 586, 599 that the ‘courts will not recognise a benefit accruing to a criminal from his crime’. It is accepted that a person convicted of manslaughter by reason of diminished responsibility has indeed been convicted of a crime. Therefore, on the face of it, such a person in the present connection is in precisely the same position as anyone who was convicted of manslaughter under the law as it stood before the introduction of the Homicide Act 1957. And the cases have established beyond question that a person so convicted of manslaughter is disqualified from taking a benefit under the will or intestacy of the person whom he has killed.
Mr Whitehead for the widow, has sought to exclude these cases of manslaughter by reason of diminished responsibility from the scope of the principle. What he contends is that the principle, only applies to crime deserving of punishment or, to use another phrase, crime carrying a degree of moral culpability, and that where the crime does not deserve punishment and carries no degree of moral culpability, then the principle does not apply. It is true that sentence of detention for hospital treatment under section 60 of the Mental Health Act 1959 is not in the nature of a punishment but is a remedial order. The answer, certainly in this court, is that neither the deserving of punishment nor carrying a degree of moral culpability has ever been a necessary ingredient of the crime the perpetrator of which is disqualified from benefiting under the will or intestacy of the person whom he has killed. That is an entirely new conception and it is actually contrary to the words used by Hamilton LJ in In re H. [1914] P.1, 7.’

Judges:

Sir John Pennycuick V-C

Citations:

[1972] Ch 554

Jurisdiction:

England and Wales

Cited by:

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 . .
CitedJ v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 13 May 2022; Ref: scu.199529

Re 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 or acknowledged his signature in their presence. The court rejected an argument that attestation was not a matter of intention.

Judges:

Goff J

Citations:

[1974] 1 WLR 417

Citing:

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 . .

Cited by:

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

Wills and Probate

Updated: 13 May 2022; Ref: scu.198739

Re Fleming’s Will Trusts: 1974

By his Will made in 1969, the testator bequeathed to the first defendants his leasehold house at Narcissus Road. The house was than held under a lease term expiring on 28th September, 2008 subject to covenants to repair. In April 1971, the testator purchased the freehold and registered it. The leasehold interest was unregistered and the testator died in February, 1973. As a sole executor of the Will, the plaintiff applied for determination of interest that passed on to the 12 first defendants. The residuary beneficiaries under the Will claimed that the first defendants was only entitled to leasehold interest.
Held: Repelling that contention, Templeman J, while delivering the judgment said: ‘In my judgment, a gift of property discloses an intention to give the estate and interest of the testator in that property at his death; a mere reference in the will to the estate and interest held by the testator at the date of his will is not sufficient to disclose a contrary intention. It follows that the freehold in the case passes to the first defendants.’

Citations:

[1974] 3 All ER 323

Cited by:

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

Wills and Probate

Updated: 13 May 2022; Ref: scu.198158