Succession – Division per stirpes or per capita
[1910] SLR 271
Scotland
Appeal from – Anderson and Others (Binnie’s Trustees) v Prendergast and Others HL 7-Dec-1910
. .
Lists of cited by and citing cases may be incomplete.
Updated: 21 April 2022; Ref: scu.615574
Jurisdiction – Forum non competens – Trial of Questions Arising in an Executry Estate under Chancery Administration at Time
[1879] SLR 17 – 208
Scotland
Updated: 20 April 2022; Ref: scu.614878
Application for rectification of will.
[2010] EWHC 3661 (Ch)
England and Wales
Updated: 18 April 2022; Ref: scu.434927
Court of Session Inner House Second Division – A testator by his trust-disposition and settlement directed his trustees to pay the whole income of his estate to his widow, and upon her second marriage or death to hold the residue of his estate for behoof of his children till the youngest of them should reach majority, when the trustees were to divide and pay over the same equally among the children, declaring that the issue of children predeceasing the time of division should succeed to their parent’s share. By a codicil he authorised his trustees to advance to sons on their attaining majority, or to daughters on their attaining majority or being married, a sum not exceeding one sixth of the share of his estate which would ‘probably fall to each child,’ such advances to be debited to such child and deducted from his share when it fell to be paid, and further provided that any of his children being major and unmarried and not desiring to reside in family with his widow, should ‘receive the whole income from the approximate amount of their shares in proportion to the income which might be derived from’ his estate. The widow took her legal rights and so forfeited her provisions under the settlement.
Held (diss. Lord Young) (1), following Wilson’s Trustees v. Quick, February 28, 1878, 5 R. 697, that the provisions in favour of the children vested a morte testatoris; and (2), following Miller’s trustees v. Miller, December 19, 1890, 18 R. 301; Wilkie’s Trustees v. Wight’s Trustees, November 30, 1893, 21 R. 199; Greenlees’ Trustees v. Greenlees, December 4, 1894, 22 R. 136; and Stewart’s Trustees v. Stewart, December 17, 1897, 35 S.L.R. 298, that the widow’s interest being now at an end, the direction to postpone payment till the youngest child attained majority was ineffectual, as being repugnant to the children’s vested right of fee, and that consequently those of the children who had attained majority were now entitled to immediate payment of their shares. Adam’s Trustees v. Carrick, June 18, 1896, 23 R. 828, distinguished, commented on, and doubted.
[1898] SLR 35 – 488
Scotland
Updated: 17 April 2022; Ref: scu.612165
Holman J
[2018] EWHC 906 (Fam)
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Updated: 13 April 2022; Ref: scu.609107
Whether proposed will had been revoked by a later will.
Clark M
[2018] EWHC 851 (Ch)
England and Wales
Updated: 13 April 2022; Ref: scu.609082
Trial of a preliminary issue in a claim under the 1975 Act, and in particular as to whether the deceased was domiciled in the UK and therefore subject to the jurisdiction of the Act.
Clark M
[2018] EWHC 767 (Ch)
Inheritance (Provision for Family and Dependants) Act 1975 1(1)
England and Wales
Updated: 13 April 2022; Ref: scu.609085
When faced with a dispute as to the disposal of a deceased’s body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements
[2016] EWHC 1073 (Ch)
England and Wales
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.571414
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and buried it in a family urupa. His partner successfully sued for orders allowing her to enter the urupa to disinter the body and re-inter it in Canterbury. The Tuhoe whanau was unsuccessful in all courts.
Held: (a) There is a common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased. (b) Where no executor has been appointed, is available or willing to act, the person who is the potential administrator in the sense of having priority to claim administration has the right to decide. (c) The rule becomes operative where there is no agreement or acquiescence on what is to be done, where arrangements have broken down, or where nothing is happening. The personal representative has the common law duty to attend to disposal and right to possession for that purpose. (d) Providing a rule for a decision-maker is practical and convenient, when differences arise as to the manner and disposal of the body. It assists in speedy resolution of differences. (e) The rule had been built on experience with regard to perceived social necessities and changing public policies. Personal representatives are required to take into account different cultural, religious, spiritual practices as well as the views of immediate and wider family. The views of those close to the deceased may arise from customary, cultural and religious practices, which they consider should be observed. There is no requirement to engage in consultation, which may be impractical. The representatives may have regard to the practicalities of burial or cremation without undue delay. They may also follow their personal views, provided they have considered all relevant factors and viewpoints. (f) This approach allows a range of values to be weighed without presuming in advance which cultural position will prevail, while also ensuring that decision-making will be prompt for reasons of public health and decency. (g) The power of the personal representative to ensure proper disposal continues after burial. (h) A person aggrieved at a decision of the personal representative or the failure of the representative to resolve matters may challenge it in the High Court, but any review process must be straightforward to provide a prompt decision. (i) The common law position was not displaced by whanau invoking tikanga as to burial.
However values and cultural precepts important to New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction according to the materiality in the particular case
Elias CJ, Tipping, McGrath, William Young and Blanchard JJ
SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733
New Zealand
Cited – In re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.571417
The court was asked to construe a provision in the will.
Held: Ultimately a reference to ‘issue of mine’ was to be read to include the testator’s stepchildren despite initially observing that: ‘The ordinary and natural meaning of the word ‘issue’ does not in its ordinary and natural meaning include stepchildren;’
Asplin J
[2015] EWHC 946 (Ch), [2015] WTLR 1245
England and Wales
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.570851
Supreme Court Victoria – Will – Construction – Legacy, lapse of – Death of beneficiary ‘before he shall have become entitled,’ meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving brother or sister should attain the age of twenty-one years, and thereafter for the use and benefit of J. absolutely, charged, however, with the payment of oertain legacies to oertain named brothers and sisters. The testator then directed that’ in the event of any of my said brothers or sisters dying before he she or they shall have become entitled under this my will the share or shares of such my said brothers and sisters so dying shall be divided equally amongst those of my brothers and sisters them surviving with the exception of his brother J.
Held: that the word’ entitled’ meant ‘entitled in possession,’ and that therefore a legacy to one of the sisters who had survived the testator, but had died before his youngest brother attained twenty-one, was not payable to that sister’s executor.
Hodges J
[1912] VLR 310
Australia
Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.570711
Lopes LJ said: ‘It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination.’
Lopes LJ
[1894] P 248
Cited – Chilton v Saga Holidays Plc CA 3-Dec-1984
At a trial under the small claims procedure, the registrar had declined to allow the defendant company to dross examine the plaintiff, and the counr court judge had held that decision to be well within the registrar’s discertion under the rules, on . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.568890
When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James LJ said that when interpreting a will, the court should ‘place [itself] in [the testator’s] arm-chair’
James LJ
(1880) 14 Ch D 53, (1880) 49 LJCh 350
England and Wales
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.536790
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David was always meant to be included in the class of Beneficiaries for the purposes of the overriding powers in clause 9, and that the omission of his name from the Beneficiaries, in the context of that clause at any rate, was simply an oversight. It was a drafting slip, which both as a matter of ordinary language, and on the authorities, can readily be classified as a clerical error; and it is therefore one which the court happily now has jurisdiction to put right.’
Henderson J
[2010] EWHC 3679 (Ch)
Administration of Justice Act 1982 20
England and Wales
Cited – Pengelly v Pengelly ChD 2008
Where a word or words have been mistakenly omitted from a will there may well be greater potential for characterising the error as one of a clerical nature. This reflects a natural, almost intuitive, reaction that it is easier to find a clerical . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Cited – Marley v Rawlings and Another (2) SC 18-Sep-2014
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.439797
A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord’s fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord’s fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.
[1581] EngR 13, (1581) 4 Co Rep 21, (1581) 76 ER 911
England and Wales
Updated: 12 April 2022; Ref: scu.429391
[1572] EngR 126, (1572-1616) 10 Co Rep 95, (1572) 77 ER 1070
England and Wales
Updated: 12 April 2022; Ref: scu.432092
That Thomas Hall deceased, having only one Child the Plaintiff, made his Will, and three Executors in Trust, for the Use of the Defendant Mary Pollard, whom he intended to have married ; and by his Will, after Debts and Legacies, gave the Residue of his Estate to his Executors, in Trust for the said Mary Pollard : That two of the Executors declared by their Answer, That the Trust was for the said Mary Pollard, but the third Executor declared, He conceived the Trust was for the Plaintiff, and that the said Hall declared no Trust in him for the said Mary Pollard.
That it being doubtful to which of them this Trust is, it was referred to a Judge, who certified.
That he conceives, That in Extremity there is no Trust proved according to the Will, but it appearing that the said Mary Pollard was a lewd Woman, and had abused the said Hall, This Court, in Respect the Trust was not proved according to the Letter of the Will, think it not fit to relieve the said Mary Pollard on her Bill, for the Surplus of the said Hall’s Estate, this Court much disliking that the Estate of the said Hall should be given away from his own Child to the said Mary Pollard, who hath and had an Husband living at the Time of the said Will, and dismissed Pollards Bill.
[1635] EngR 2, (1635-36) 1 Rep Ch 101, (1635) 21 ER 519 (B)
England and Wales
Updated: 12 April 2022; Ref: scu.420573
[1653] EngR 418, (1653) Godb 246, (1653) 78 ER 143 (C)
England and Wales
Updated: 12 April 2022; Ref: scu.412725
The Suit is to discover the Estate of Richard Alexander deceased, which is come to the Defendant’s hands, to satisfy a Debt of andpound;300 due to the Plaintiff from the said Richard Alexander.
The Defendant insisted, That the Plaintiff ought not to have ReIief in this Court, in regard the Assets in the Defendant’s hands were legal Assets, and nothing appeared, but that the Plaintiff had her proper Remedy at Law, having not proved any Thing more to be in the defendant’s hands than was confessed in the Defendant’s Answer.
But the Plaintiff insisted, That this Court hath directed Accounts in Cases of this nature to avoid Circuity of Action, and further Charge and Trouble of Suits ; and that this Court being possess’d of the Cause, and the Parties at Issue on Proofs, the same was as proper for this Court, as at Common Law.
This Court ordered Precedents to be searched, where this Court hath directed Accounts and given Relief in this Case, and the Cause coming to be heard on the Precedents and Merits thereof, and the Plaintiffs insisted, that there is sufficient Assets of the said Richard Alexander come to the Defendant’s hands, to satisfy the Plaintiffs Debt with Overplus.
This Court decreed the Defendant to come to an Account for the Estate of one Blackhall, unadministered.
[1669] EngR 8, (1669-70) 2 Rep Ch 37, (1669) 21 ER 609 (C)
Updated: 12 April 2022; Ref: scu.406848
Si error lou infant executor appiert per atturnie.
[1675] EngR 1764, (1675) 1 Rolle 380, (1675) 81 ER 549 (B)
England and Wales
Updated: 12 April 2022; Ref: scu.405889
[1670] EngR 54, (1670) 3 Rep Ch 54, (1670) 21 ER 726 (B)
England and Wales
Updated: 12 April 2022; Ref: scu.406510
Appeal from a Decree in Chancery : The Case in short was this; That Peter Crooke and Elizabeth his Wife, who was Sister of the half Blood to George Watts, claimed to have an equal Share with John Watts and Elizabeth Camfield, who were Brother and Sister of the whole Blood to the Deceased, of his Personal Estate; and a Decree was made in Chancery in Favour of Crooke and his Wife.
[1690] EngR 31, [1690] Shower PC 108, (1690) 1 ER 74
England and Wales
Updated: 12 April 2022; Ref: scu.393261
[1678] EngR 54, (1678) Fin H 358, (1678) 23 ER 196
England and Wales
Updated: 12 April 2022; Ref: scu.402786
[1822] EngR 468, (1822) Turn and R 281, (1822) 37 ER 1107
England and Wales
Updated: 12 April 2022; Ref: scu.329361
[1823] EngR 823, (1823) Turn and R 445, (1823) 37 ER 1172
England and Wales
Updated: 12 April 2022; Ref: scu.328863
A testatrix executed a wiil, and thereupon destroyed a former will, and subsequently executed two other wills. The last mill was propounded, but abandoned. A decree then issued calling on all parties interested to shew cause why probate of the instructions for the first will should not be granted; and the Court, on proof per testes that the instructions were of the same effect is the first will, that that will was executed wheri the deceased was sane, but destroyed and the other wills executed when insane, pronounced for the instructions, and refused coats out of the estate to persons in distribution who by interrogatories set up insanity when the first will waa executed.
[1831] EngR 118, (1831) 3 Hag Ecc 754, (1831) 162 ER 1333
England and Wales
Updated: 12 April 2022; Ref: scu.319996
The witnesses did not see the attestation clause on a will and although they saw the testatrix write something on the document, they did not see what was being written.
Held: Witnesses to the execution of a will need not know that the document which they see the testator sign is a will. The court was prepared to infer that the testatrix was signing the will, the presumption that everything was duly done being a strong one in the absence of evidence clearly rebutting the presumption.
(1869) LR 1 PandD 143
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.223789
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a different result.
Held: A judge who realised he had made an error before the judgment was perfected had a clear obligation to correct it. Under the Act there is an obligation to perform a two stage test. The judge had been correct to re-examine his draft judgment. A judge could correct an error.
May LJ said of the expression ‘exceptional circumstances’: ‘that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case’
Peter Gibson LJ said: ‘With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered . . Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for the judge to have the courage to recall his order. If . . the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required . . ‘
and ‘No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as an exception into some sort of criteria for what is required for the recalling of an order before it is sealed.’
Lord Justice Peter Gibson , May LJ
[2003] EWCA Civ 1820, Times 20-Jan-2004, [2003] WTLR 529
Inheritance (Provision for Family and Dependents) Act 1975 1(1)
England and Wales
Cited – Practice Statement (Supreme Court: Judgments) LCJ 23-Apr-1998
Sets out new arrangements under which judgments in the High Court and Court of Appeal are to be handed down. Copies available to parties first in order to spot need for corrections. . .
Cited – Practice Statement (Supreme Court: Judgments) (No 2) LCJ 2-Dec-1998
Reserved judgments handed down should be marked as such when subject to revision, and could be copied and published freely and without charge once the embargo on copies delivered to parties had been lifted. . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – Gravgaard v Aldridge and Brownlee (A Firm) CA 9-Dec-2004
After the court had sent its draft judgment to the parties, counsel on each side had written to the court making fresh submissions.
Held: Contentious matters should only be allowed to be re-opened in very limited circumstances once a draft . .
Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
Cited – Hutchinson v Metropolitan Police Commissioner and Another QBD 27-Jul-2005
The claimant sought damages for assault by a probationary constable. The constable had been called to a drunken party for Sainsbury’s employees.
Held: The claimant had been assaulted. Miss Morgan had introduced herself as a police officer, had . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 11-Nov-2005
Ultraframe asked the judge to re-open his ‘in the round’ decision on costs.
Held: The decision questioned was not a draft, but a concluded judgment. The judge said that he had not made such a ‘palpable error’ in his order as to give him . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
Cited – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
Cited – McKeown v British Horseracing Authority Admn 12-Mar-2010
The judge had been asked to revise his draft judgment. The court set out the circumstances under which a draft judgment might be amended and why in this case he had rejected the request save as to clerical errors. . .
Cited – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.188902
Stuart-Smith LJ rationalised the possible conflict between Part 24 and the practice direction to Part 24 in its original form by saying that the correct view of the effect of the practice direction is to be gleaned from the heading to the paragraph which reads ‘the court’s approach’. It indicates no more than examples of situations where it could be right to give summary judgment in favour of one party or the other.
Stuart-Smith and Buxton LJJ and Rattee J
[1999] EWCA Civ 1917
England and Wales
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.146832
The parties disputed the validity of a will, and also whether lands in the estate were subject to a trust of proprietary estoppel.
Strauss QC J
[2011] EWHC 3848 (Ch), [2012] 1 WLR 1309
England and Wales
Updated: 12 April 2022; Ref: scu.515341
A joint life first death policy had been paid out to a bankrupt surviving husband. Since the policy was taken out for the benefit of the spouse under the Act, the husband received it in his capacity as a beneficiary and not as a trustee and he could not give good receipt for the proceeds.
Times 04-Mar-1999
Married Women’s Property Act 1882 11
England and Wales
Updated: 10 April 2022; Ref: scu.88858
The names and date of birth as shown in the entry of the register of deaths, and any other names by which the deceased was known are to be shown in any application for a grant in an estate, and also in any standing search application.
Times 26-Jan-1999
Updated: 09 April 2022; Ref: scu.84904
A sole personal administrator, appropriating private shares in company from an estate to satisfy his own statutory legacy, was in breach of the rule against self dealing, when this was done without the consent either of the court or the other beneficiaries.
Gazette 15-Jul-1998, Times 01-Jun-1998, Gazette 17-Jun-1998
Updated: 09 April 2022; Ref: scu.82667
A will had been executed, but left undated, awaiting for later condition to be fulfilled, and then it was to be dated. It did not show the necessary testamentary intent, and was not a valid will. The will must have an immediate testamentary effect. The testator cannot impose a precondition.
Mr Eben Hamilton QC
Gazette 06-Jul-1994, Times 12-May-1994
England and Wales
Appeal from – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 April 2022; Ref: scu.79503
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary effect. The testator cannot impose a precondition on its effectiveness. The awarded costs out of the estate.
Gazette 06-Mar-1996, Independent 07-Feb-1996, Times 05-Feb-1996
England and Wales
Appeal from – Corbett v Newey and Others ChD 4-May-1994
A will had been executed, but left undated, awaiting for later condition to be fulfilled, and then it was to be dated. It did not show the necessary testamentary intent, and was not a valid will. The will must have an immediate testamentary effect. . .
See Also – Corbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
See Also – Corbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 April 2022; Ref: scu.79500
Application for removal of executor
[2018] EWHC 489 (Ch)
Administration of Justice Act 1985
England and Wales
Updated: 07 April 2022; Ref: scu.608325
Jarman QC HHJ
[2018] EWHC 688 (Ch)
Inheritance (Provision for Family and Dependents) Act 1975
England and Wales
Updated: 07 April 2022; Ref: scu.608331
Application for removal of an executor, and for construction of the will, and in particular whether a letter of wishes was part of the will or binding on the trustees.
[2018] EWHC 730 (Ch)
Administration of Justice Act 1985 50
England and Wales
Updated: 07 April 2022; Ref: scu.608334
Keehan J
[2018] EWHC 583 (Fam)
England and Wales
Updated: 07 April 2022; Ref: scu.608306
[2018] ScotCS CSOH – 88
Scotland
Updated: 06 April 2022; Ref: scu.622434
Paul Matthews HHJ
[2018] EWHC 242 (Ch)
England and Wales
Updated: 05 April 2022; Ref: scu.605171
Application by the claimant, Mr Kershaw, for some or all of the defendants to be removed as executors of the Will of Mr Kershaw’s mother.
Newey J
[2010] EWHC 506 (Ch)
England and Wales
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 April 2022; Ref: scu.601929
[1881] SLR 19 – 66
Scotland
Updated: 05 April 2022; Ref: scu.579135
Appeal as to taking of deceased’s DNA to establish paternity or otherwise of the respondent.
McFarlane, King, Simpn LJJ
[2018] EWCA Civ 100
England and Wales
Updated: 04 April 2022; Ref: scu.604203
PaulMatthews HHJ
[2018] EWHC 43 (Ch)
England and Wales
Updated: 03 April 2022; Ref: scu.602671
Simon Barker QC HHJ
[2018] EWHC 21 (Ch)
England and Wales
Updated: 03 April 2022; Ref: scu.602673
[2019] EWHC 193 (Ch)
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Updated: 03 April 2022; Ref: scu.633199
[2017] EWCA Civ 2182
England and Wales
Updated: 02 April 2022; Ref: scu.601848
Morgan J
[2017] EWHC 2691 (Ch)
England and Wales
Updated: 01 April 2022; Ref: scu.599631
This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady (the ‘deceased’), one of the infamous Moors murderers.
Sir Geoffrey Vos, Chancellor of the High Court
[2017] EWHC 2543 (Ch), [2017] WLR(D) 670
England and Wales
Updated: 01 April 2022; Ref: scu.599626
Challenge to will – allegation of procurement by fraud
Morgan J
[2017] EWHC 2632 (Ch)
England and Wales
Updated: 01 April 2022; Ref: scu.599619
[1843] EngR 362, (1843) 3 Curt 458, (1843) 163 ER 790
England and Wales
Updated: 01 April 2022; Ref: scu.306056
[1685] EngR 2254, (1685) 3 Keb 508, (1685) 84 ER 848 (C)
England and Wales
Updated: 01 April 2022; Ref: scu.399029
Dispute between two parts of a family as to the proper disposal or burial of the body of Mr X
Deputy Master Linwood
[2018] EWHC 4026 (Ch)
England and Wales
Updated: 01 April 2022; Ref: scu.655454
Dispute concerning the disposal of the body of Mr Olawola Akambi Lambo
Shuman M
[2018] EWHC 2960 (Ch)
England and Wales
Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 April 2022; Ref: scu.655450
[2019] EWHC 138 (Ch)
England and Wales
Updated: 01 April 2022; Ref: scu.633194
[2017] ScotCS CSIH – 60
Scotland
Updated: 01 April 2022; Ref: scu.598636
Whether the will of Mrs Ali, the deceased made in Pakistan (the 2017 will), is valid and whether that issue should be determined in Pakistan or England. The 2017 will was a radical departure from an earlier mirror will that the deceased made with her late husband (the 1993 will) where she broadly sought to distribute her estate equally between the family of her husband and herself, presupposing her spouse predeceased her.
[2019] EWHC 3692 (Ch)
England and Wales
Updated: 30 March 2022; Ref: scu.655172
Vos J
[2013] EWHC 1942 (Ch)
England and Wales
Updated: 29 March 2022; Ref: scu.512277
[1846] EngR 1021, (1846) 2 Ph 101, (1846) 41 ER 880
England and Wales
Updated: 29 March 2022; Ref: scu.302916
Challenge to will on the grounds of lack of testamentary capacity, and under the 1975 Act.
Paul Matthews HHJ
[2017] EWHC 1750 (Ch)
Inheritance (Provision for Family and Dependents) Act 1975
England and Wales
Updated: 28 March 2022; Ref: scu.591435
Leeds County Court
Saffmaqnn HHJ
[2017] EW Misc 11 (CC)
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Updated: 27 March 2022; Ref: scu.590779
The solicitor and proposed executor of the will of the infamous Moors Murder sought an injunction to prevent the publication by the defendant newspaper of the terms of the will, alleging that the information had been received in breach of confidence. The court now gave reasons for refusal of the application.
Held: ‘i) there was a public interest in the fact that the will contained details of a book which Brady had apparently written about his crimes which he wanted published;
ii) there was obviously no risk that publication would cause detriment to Brady or his reputation;
iii) the will would have to be made public in due course in any even
iv) publication would not cause any material further prejudice to Mr. Makin in relation to the difficulties which he faced in making arrangements for Brady’s funeral. There had already been intense media speculation and interest in that regard;
v) there was a risk of significant loss and damage to The Sun if I granted the injunction, because it would have to stop, or make significant changes to its publication processes, if I were to require the article to be removed from the newspaper; and
vi) as executor, Mr. Makin had no significant assets from Brady’s estate with which to meet any cross-undertaking as to damages.
Snowden J
[2017] EWHC 1386 (Ch)
England and Wales
Updated: 27 March 2022; Ref: scu.588214
Appeal against an order made by a Tier 2 Court of Protection Judge (the COP judge) authorising the execution of a will for JKS (P) who is an 86 year old widow.
Charles J
[2017] EWCOP 8
England and Wales
Updated: 27 March 2022; Ref: scu.588178
Case relating to the disposal of the remains of a man who died on 15 September 2020 as a result of a road traffic accident
Deputy Judge Robin Vos
[2020] EWHC 2743 (Ch)
England and Wales
Updated: 26 March 2022; Ref: scu.655193
The office of Hereditary Standard Bearer of Scotland is held jure sanguinis, and cannot therefore be bought, sold, or adjudged. If the blood fails the grant is spent and the office becomes extinct.
The pursuer in an action of declarator of right to the office of Hereditary Standard Bearer of Scotland founded upon (1) a charter in his predecessor’s favour granted by Charles II as ultimus haeres of John Scrymgeour Earl of Dundee, in whom the office had been vested, and (2) a decree of the Court of Session in 1671 in an action in which the defender’s predecessor had been cited, declaring, inter alia, that the office belonged to his (the pursuer’s) ancestor-the grantee of the charter referred to.
Held that, as the office in question was in its nature inalienable, the pursuer had acquired no title thereto.
Lord Chancellor (Loreburn), The Earl of Halsbury, Lord Atkinson, Lord Collins, and Lord Shaw
[1910] UKHL 532, 47 SLR 532
Scotland
Updated: 26 March 2022; Ref: scu.619787
[2016] ScotSC 80
Succession (Scotland) Act 2016
Scotland
Updated: 26 March 2022; Ref: scu.583962
[2016] ScotSC 4
Scotland
Updated: 26 March 2022; Ref: scu.583938
[2016] ScotSC 5
Scotland
Updated: 26 March 2022; Ref: scu.583939
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place.
[1999] 1 FLR 767
England and Wales
Cited – University Hospital Lewisham NHS Trust v Hamuth and others ChD 23-Jan-2006
The body of the deceased had been retained by the hospital pending resolution of legal proceedings relating to his death. No grant had been yet obtained in the estate.
Held: In the absence of anybody else with authority, the hospital having . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Cited – Lambo v Kelly-Lambo ChD 25-Sep-2018
Dispute concerning the disposal of the body of Mr Olawola Akambi Lambo . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 March 2022; Ref: scu.267635
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 right as his parents to apply for letters of administration, that court could not, by that reason distinguish between them. The authorities suggested that the duty fell on the person with custody of the body in certain circumstances, but no precedent applied to this exact situation. The judge identified factors which were relevant to the exercise of the court’s jurisdiction, although she did not seek to limit the relevant factors to those she listed. The factors she identified were: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, ‘the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay’.
The fact that the deceased made his life in Kington for the last eight years of his life and that his fiancee as well as his father and brother wished him to be buried there, accordingly, outweighed the Defendant’s personal wishes and difficulties in visiting the grave.
Sonia Proudman QC sitting as a Deputy High Court Judge
[2008] EWHC B3 (Ch)
England and Wales
Cited – 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 . .
Cited – Rex v Stewart 1840
It is the duty at common law for a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Calma v Sesar 1992
(Australia) The court hearing a dispute between family members as to how the deceased should be buried, declined to hear evidence from them about the deceased’s childhood relationships. There was no good reason why the body should be flown thousands . .
Cited – University Hospital Lewisham NHS Trust v Hamuth and others ChD 23-Jan-2006
The body of the deceased had been retained by the hospital pending resolution of legal proceedings relating to his death. No grant had been yet obtained in the estate.
Held: In the absence of anybody else with authority, the hospital having . .
Cited – Re Grandison; Grandison v Nembhard ChD 10-Jul-1989
In a case where there is no dispute as to the executor’s entitlement to act in the estate, the right of the executor to decide on the mode of burial is likely to be accorded a high priority. The deceased’s wishes are one of the relevant factors to . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Applied – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .
Cited – Lambo v Kelly-Lambo ChD 25-Sep-2018
Dispute concerning the disposal of the body of Mr Olawola Akambi Lambo . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 March 2022; Ref: scu.267087
[1827] EngR 368, (1826-1827) 2 Russ 407, (1827) 38 ER 389
England and Wales
Updated: 25 March 2022; Ref: scu.324122
[1860] EngR 741, (1860) 1 Dr and Sm 85, (1860) 62 ER 310
England and Wales
Updated: 24 March 2022; Ref: scu.285580
[1837] EngR 830, (1837) 8 Sim 442, (1837) 59 ER 175
England and Wales
Updated: 24 March 2022; Ref: scu.313947
Richard Spearman QC
[2017] EWHC 769 (Ch)
England and Wales
Updated: 24 March 2022; Ref: scu.581737
Horner J
[2016] NICh 17
Inheritance (Provision for Family and Dependants) (NI) Order 1979
Northern Ireland
Updated: 24 March 2022; Ref: scu.581358
Horner J
[2017] NICh 1
Northern Ireland
Updated: 24 March 2022; Ref: scu.581360
Succession to Adjudications – Interest – Heritable or Moveable. – Whether the accruing interest in an adjudication belongs to the heir or executor? Held, in a question of compensation, that the interest accumulated and accruing, in an adjudication, is heritable, and belongs to the heir, and therefore did not fall under the husband’s jus mariti.
[1787] UKHL 3 – Paton – 64
Scotland
Updated: 23 March 2022; Ref: scu.581016
Succession – Fiar – Infeftment – Dispensation Clause – Prescription. – A father conveyed his estates to his heir male, whom failing to his eldest daughter. The heir male, after the death of the father, succeeded, but died without issue; having, previous to his death, conveyed the estates to a remote relation of the same name: Held, that as fiar, he was entitled so to convey the estates, notwithstanding the destination over in favour of the daughter. Objection to sasine, that the dispensation clause, granted by the Crown, making infeftment on one part of the lands good for the whole was inept, these lands being held of different superiors. Objection repelled, prescription having run upon the title. Affirmed in the House of Lords, without prejudice to any challenge appearing on the face of the sasine of the lands of Kirkbryde; said reservation being of consent of parties.
[1788] UKHL 3 – Paton – 101
Scotland
Updated: 23 March 2022; Ref: scu.581001
Mr Christopher Nugee QC
(Sitting as a Deputy High Court Judge)
[2007] EWHC 1366 (Ch)
England and Wales
Cited – Re Moss, Larke v Nugus CA 1979
Executors To Give Information Avoiding Expense
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 March 2022; Ref: scu.253760
The court revoked a grant of letters of administration with will annexed which had been granted in favour of judgment creditors on the grounds of their non-disclosure.
Lord Wright MR: ‘But the President or probate judge has discretion either to take or to refuse to take the course [of passing over an executor], and when he is acting on an ex parte motion or petition, he is entitled, according to the universal rule applicable to all ex parte applications, but peculiarly applicable to a matter of this gravity, to have from those who ask him to exercise his discretion the very fullest possible information and disclosure of all relevant circumstances. It may be that there was not such full disclosure of all relevant circumstances owing to a perfectly bona fide failure to appreciate its importance, and I am willing to assume that in the present case that was so; I have no reason to say the contrary. But, however well-intentioned the applicants may have been, if they had knowledge or information of relevant circumstances, it was their bounden duty to put that as fully as they could before the President. ‘
Romer LJ: ‘Whenever a party applies ex parte to a court of justice, it is essential that the applicant should state every relevant fact within his knowledge. The importance in the interests of the administration of justice of maintaining that rule in its entirety can hardly be exaggerated. An applicant who succeeds in obtaining an order without strictly observing that rule cannot complain if the order is subsequently discharged and he is ordered to pay the whole of the costs which have been occasioned by his application. ‘
Lord Wright MR, Romer LJ
(1936) 155 LT 270
England and Wales
Cited – Shepherd v Wheeler ChD 2000
An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 March 2022; Ref: scu.241554
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the will.
Held: Her claim under the 1975 Act was struck out as disclosing no reasonable cause of action. Her alternative reliance upon the Forfeiture Act 1982 also failed, she having been convicted nearly three years before the Act was passed.
Slade LJ said: ‘It is not a consequence of the will or of the law relating to intestacy that the plaintiff is precluded from receiving the provision thereby made for her. Unhappily it is a consequence of her own act, coupled with the forfeiture rule’.
Slade LJ
[1985] 1 Ch 22
Inheritance (Provision for Family and Dependants) Act 1975, Forfeiture Act 1982
England and Wales
Cited – Sudershan Kumar Rampal v Surendra Rampal CA 19-Jul-2001
The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this . .
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Cited – In Re K, decd ChD 2-Jan-1985
A wife had pleaded guilty to the manslaughter of her husband, though she had been subject to long term abuse by him.
Held: Relief was granted to the wife under s.2(2) of the 1982 Act. The forfeiture rule for suicide operates to sever any joint . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 March 2022; Ref: scu.235262
Marcus Smith J
[2017] EWHC 491 (Ch)
Inheritance (Provision for Family and Dependants) Act 1975 1 2
England and Wales
Updated: 09 February 2022; Ref: scu.579950
Application for leave to bring claim out of time under the 1975 Act by widow.
David Cooke HHJ
[2018] EWHC 8 (Ch)
Inheritance (Provision for Family and Dependents) Act 1975
England and Wales
Updated: 09 February 2022; Ref: scu.602626
The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary estoppel. The court asked the question of whether in establishing an obligation to make a disposition in a will, an express promise had to be found.
Held: Where the assurances relied on fall significantly short of express promises made in terms as such, it will be all the more important for the claimant to be able to support his case with clear and substantial detrimental reliance, and perhaps with evidence from others corroborating the meaning and intention which he (the claimant) imputes to the deceased’s words or actions. An estoppel had arisen in this case by the father’s conduct. In the circumstances of this estate the expectation created could be fulfilled without causing injustice to other beneficiaries, by applying the minimum equity principle.
John Randall QC
[2007] EWHC 2422 (Ch)
England and Wales
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Ramsden v Dyson HL 11-May-1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Uglow v Uglow and others CA 27-Jul-2004
The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
Appeal from – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
At First Instance – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 February 2022; Ref: scu.260349
Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. . . The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’
Blackburne J VC
[2002] EWHC 1080 (Ch), [2002] WTLR 1105
Administration of Justice Act 1982 2091)(a)
England and Wales
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 February 2022; Ref: scu.520890
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the court.
Held: The request for rectification was granted. The claimant had demonstrated a specific common intention as to how the parties’ fiscal objectives were to be achieved; and that, owing to a mistake in the way in which that intention was expressed in the Deed of Variation, effect had not been given to that intention.
Hodge J QC said: ‘The court cannot rectify a document merely because it fails to achieve the fiscal objectives of the parties to it. A mere misapprehension as to the tax consequences of executing a particular document will not justify an order for its rectification. The specific intention of the parties as to how the fiscal objective was to be achieved must be shown if the court is to order rectification. The court will order the rectification of a document only if it is satisfied by cogent evidence (sufficient to counteract the effect of the parties’ subscription to the relevant document) that: (1) the document does not give effect to the true agreement or arrangement between the parties, and (2) there is an issue, capable of being contested, between the parties; it being irrelevant, first, that rectification of the document is sought or consented to by all of them; and, secondly, that rectification is desired because it has beneficial fiscal consequences. Conversely, the court will not order rectification of a document if the parties’ rights will be unaffected, and if the only effect of the order will be to secure a fiscal benefit for one or more of them.’
Hodge J QC
[2010] EWHC 1948 (Ch)
England and Wales
Cited – Whiteside v Whiteside CA 1950
The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Cited – Racal Group Services Limited v Ashmore CA 1995
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured.
Held: The company’s appeal . .
Cited – Allnutt and Another v Wilding and others; Re Strain (deceased) CA 3-Apr-2007
The trustees of a discretionary settlement requested its rectification on the basis that the now deceased settlor’s solicitor had mistakenly not appreciated the need to confer interests in possession on the beneficiaries, with the consequence that . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 February 2022; Ref: scu.421236
[1795] EngR 998, (1795) 1 Salk 79, (1795) 91 ER 75 (A)
England and Wales
Updated: 06 February 2022; Ref: scu.353343
The will was challenged as to whether it was executed with the testator’s knowledge and approval. In particular the court was asked whether the testator had to understand the nature and effect of testamentary provisions.
Held: ‘In my view, it is not a requirement of the plea, in all cases, that it must be established that the testator must have appreciated the legal effect of the words used in the document in issue. Suppose that a solicitor drafts a will believing it accords with her client’s instructions but, through a drafting error which may be rectified by the court, the legal effect of the words is to divert a gift from its intended recipient to a third party. Suppose too that the solicitor advises or otherwise leads her client to believe that the effect of her drafting is that the intended recipient of the gift will receive it. Suppose too that the client fully and freely considers that advice or information and then approves the words used. I am of the view that it cannot be said, in these circumstances, that, solely because of the drafting error and its legal effect, the testator did not know and approve the contents of his will.’
Kleen HHJ
[2016] EWHC 3199 (Ch), [2017] 4 WLR 32, [2016] WLR(D) 685
England and Wales
Updated: 04 February 2022; Ref: scu.577844
Challenge to will – alleged lack of capacity
Safman HHJ
[2017] EWHC 386 (Ch)
England and Wales
Updated: 04 February 2022; Ref: scu.577828
Court of Session Inner House First Division
A truster directed his trustees, ‘previous to their dividing the residue of my said estate as after mentioned, to set apart and invest . . the sum of pounds 1600, in two sums of pounds 800 each, for behoof of my two unmarried daughters M and W, said sums to be so invested in the names of my said trustees for their behoof, and the interest to be paid to them respectively so long as they remain unmarried. . . Declaring that in the event of either of my two daughters contracting marriage or dying . . the interest on said sum effeiring to such daughter shall be paid to my other unmarried daughter so long as she shall remain unmarried.’ The trustees were further directed, in the event of the marriage of either of these daughters, to pay to her a sum of pounds 200 out of the pounds 1600 for her outfit. In the residuary clause the truster directed that after payment of his debts and ‘after investing the said sum of pounds 1600,’ his trustees should make over ‘the residue of my said estate and effects to and among my three daughters E., M., and W. . . but deducting from the shares of my said children any sum or sums that may have been paid by my said trustees to any of my said daughters for outfit in the event of the marriage of either of them.’ No other provision was made as to the fee of the pounds 1600 which the trustees were directed to invest for behoof of the two unmarried daughters.
Held (1) that no fee in the principal sum was conferred upon the unmarried daughters by the direction to hold it on their behoof and pay them interest; (2) that it fell into residue; (3) that on renouncing their liferent they were entitled to call upon the trustees to pay over their shares of the sum as residue.
[1897] SLR 34 – 782
Scotland
Updated: 03 February 2022; Ref: scu.612510
Whether will was valid and as to knowledge and approval of contents of will.
Nugee J
[2013] EWHC 4570 (Ch)
England and Wales
Updated: 03 February 2022; Ref: scu.592404
Mr Ashley Greenbank
(Sitting as a Judge of the High Court)
[2022] EWHC 11 (Ch)
England and Wales
Updated: 02 February 2022; Ref: scu.671014
The Claimant sought an order that the period prescribed by section 4 of the 1975 Act for the making of an application for an order under Section 2 (ibid.) (ie, 6 months) in relation to her deceased husband’s estate be extended (by 5 months) to the date of the issue of her Part 8 Claim.
The Honourable Mr Justice Cobb
[2021] EWHC 2894 (Fam)
Inheritance (Provision for Family and Dependants) Act 1975 4
England and Wales
Updated: 01 February 2022; Ref: scu.669912
Application for grant of probate of will in solemn form.
Andrew Simmonds QC
[2017] EWHC 133 (Ch)
England and Wales
Updated: 31 January 2022; Ref: scu.575352
The court was asked whether a potential Inheritance Act claim by a surviving husband against his deceased wife’s estate abates on the death of the husband.
Monty QC
[2017] EWHC 283 (Ch)
England and Wales
Updated: 31 January 2022; Ref: scu.575353
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The real issue was as to whether Sharia law should be applied and whether the will was executed properly. Issues to be decided by a court in Saudi would follow the decisions to be made first by the English court. Case management directions were to be made to bring before the English court the issues which that court can, and should, decide before addressing issues of Islamic law. The perpetual restraint against the defendant issuing proceedings in Riyadh was lifted, and the claimant was to be allowed to amend her pleadings.
Sir Andrew Morritt VC, Lord Justice Chadwick, Lord Justice Carnwath
[2004] EWCA Civ 857, Times 22-Jul-2004
England and Wales
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Wim Harry Gerard Maronier v Bryan Larmer CA 29-May-2002
The defendant had been a dentist in the Netherlands. An action for damages was begun against him, but then stayed. Judgment was later entered in the Netherlands after he had moved to the UK, and of which he was ignorant. There was no subsisting . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Pelligrini v Italy ECHR 2002
. .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 January 2022; Ref: scu.198514
[1838] EngR 914, (1837-38) 4 My and Cr 56, (1838) 41 ER 22
England and Wales
Updated: 31 January 2022; Ref: scu.312920
[1844] EngR 753 (B), (1844) 14 Sim 214
England and Wales
Updated: 31 January 2022; Ref: scu.305345