Category: Wills and Probate

Carr and others v Beaven and others: ChD 29 Oct 2008

The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the time when the testator had made the amendments to his instructions for the second will excluding the children who now applied, the court was satisfied that the testator had capacity. There was clear evidence to that effect, and rational reasons for the choices made.

Floyd J
[2008] EWHC 2582 (Ch)
Bailii
England and Wales
Citing:
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Cited – Cattermole v Prisk 2006
Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.277333

Boughton v Knight: 1873

The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and quantity of intellect which is requisite to constitute testamentary capacity is eminently a practical question that does not depend solely on scientific or legal definition. Sir James Hannen said: ‘But it appears to me that it would be highly dangerous to encourage the notion that because a person is eccentric in his habits of life he is therefore incompetent to make a will. There was nothing in the case which led me to suspect that Sir Charles [the executor who propounded the will] had ever heard anything about the testator which went beyond eccentricity. His having bands of music at his house, the mode in which he exercised his horses, his shooting rooks in company with his servants, those and similar acts fell far short of evidence to establish incapacity . . The circumstances that made an impression on my mind, and therefore probably on the jury, were these: when the testator’s history came to be sifted, it turned out that he had recurring throughout his life a set of delusions which, from their nature, had a tendency to impair his disposing powers. He had suspicions of the motives which actuated the persons about him. Of all these incidents Sir Charles must have been totally ignorant. . . Sir Charles had no knowledge of this strange inner life. In determining whether or not he should propound this will, he had only before him evidence that the testator was a very eccentric man. Practically he had nothing more; that is the utmost to which it went. Under these circumstances, was he justified in propounding the will? I think he was.’
Sir John Hannen: ‘Accordingly, by the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England differs from that of other countries. It is thought better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters, of the past history, and future prospects of their children or other relatives may demand . . ‘ and ‘It is unfortunately not a thing unknown that parents – and in justice to women I am bound to say it is more frequently the case with fathers than mothers, – that they take unduly harsh views of the characters of their children, sons especially. That is not unknown. But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself. . . . . there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind.’

Sir John Hannen
(1873) LR 3 P and D 64
Citing:
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .

Cited by:
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Distinguished – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.242127

Curtis v Robison: 12 Feb 1845

A party was unable to obtain payment of his legacy and his portion of the residue The case being clear, and the remaining portion of the residue having been paid by the executor, he was charged with costs.

[1845] EngR 487 (B), (1845) 8 Beav 242
Commonlii
England and Wales

Wills and Probate

Updated: 18 December 2021; Ref: scu.303629

Da Silva v Heselton and Others: ChD 17 Nov 2021

whether an executor who is engaged in a profession or business unrelated to the administration of trusts or estates can rely upon a common form of professional charging clause contained in a will to charge for time spent on the administration of the estate.

Mr David Rees QC
[2021] EWHC 3079 (Ch)
Bailii
England and Wales

Wills and Probate

Updated: 18 December 2021; Ref: scu.669888

Re Nottage: CA 12 Jul 1895

A testator bequeathed a fund in trust to provide annually for ever a cup to be given to the most successful yacht of the season, stating that his object in giving the cup was to encourage the sport of yacht-racing.
Held: (affirming the decision of Kekewich J), that a gift for the encouragement of a mere sport, though it might be beneficial to the public, could not be upheld as charitable.
The law does not regard the promotion of any particular sport, for its own sake, as charitable.
Lopes LJ did not accept that ‘a gift, the object of which is the encouragement of a mere sport or game primarily calculated to amuse individuals apart from the community at large’, was charitable, even if that sport or game benefited the public. His reasoning was motivated by a reluctance to ‘open a very wide door’ through which courts would classify gifts for promoting other sports and games as charitable on the ground that they ‘promote the health and bodily well-being of the community’.

Lopes LJ
[1895] 2 Ch 649, [1895] UKLawRpCh 118
Commonlii
England and Wales
Cited by:
Cited – Hunt 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 . .
Distinguished – Re Hadden ChD 1931
A trust of land for its use for the purposes of public recreation such as playing fields, parks, and gymnasiums, is charitable. Clauson J construed the late Mr Hadden’s will as establishing a trust for the supply of healthy recreation carried on . .

Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Updated: 18 December 2021; Ref: scu.245264

In the Goods of R R Peel: ChD 15 Mar 1870

The testator appointed ‘Francis Courtnay Thorpe, of Hampton . . Middlesex’ to be his executor. There was a Francis Courtenay Thorpe of Hampton, Middlesex. He was however only 12 years old and his father Francis Corbet Thorpe, of Hampton, Middlesex, was an old friend of the testator.
Held: These facts were inadmissible. Lord Penzance said: ‘If I am at liberty to look at the facts stated in the affidavits, I may possibly have no difficulty in deciding that the person meant is the father, but the question is, whether I am at liberty to do so.’ and ‘The testator makes use of a description which applies in fact to one person, and not to any other.’

Lord Penzance
(1870) LR 2 PD 46, [1870] UKLawRpPro 8
Commonlii
England and Wales
Cited by:
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.185091

Kousouros v O’Halloran and Another: ChD 10 Jul 2014

The claimant appealed against a decision on disclosure of documents in the context of their claims as to the contents of their late father’s estate. They sought disclosure of attendance notes made by the first defendant, the deceased’s former solicitor.

Simon J
[2014] EWHC 2294 (Ch)
Bailii
England and Wales

Wills and Probate, Litigation Practice

Updated: 16 December 2021; Ref: scu.534084

– – – – – – v Harvery Executrix of Sir Job Harvery: 1803

In debt. The defendant pleaded a joint judgment against the testator, and Erasmus Harvey who is now alive, and that he had not assets beyond the said judgment to satisfy. The plaintiff demurs ; and adjudged for the plaintif, because the lien survives, and the executrix not liable.

[1803] EngR 388, (1803) T Raym 153, (1803) 83 ER 82 (A)
Commonlii
England and Wales

Wills and Probate

Updated: 15 December 2021; Ref: scu.344429

Vallee v Birchwood: ChD 6 Jun 2013

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 December 2021; Ref: scu.512272

Creasey and Another v Sole and Others: ChD 24 May 2013

The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm.

Morgan J
[2013] EWHC 1410 (Ch)
Bailii
England and Wales
Citing:
Cited – Massy v Rogers 1883
. .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Cited – 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 . .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .
Cited – Betteridge v The United Kingdom ECHR 29-Jan-2013
The applicant prisoner complained of a delay in his release pending a review by the Parole Board.
Held: The violation of article 5(4) resulted from a delay in the holding of a review by the Board following the expiry of an IPP prisoner’s . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 December 2021; Ref: scu.510081

Re Tarnpolsk: ChD 1958

It was impossible to give sufficient meaning to the phrase ‘a person of the Jewish race’, and the condition failed for conceptual uncertainty, even in a condition precedent.

Dankwerts J
[1958] 1 WLR 1157
England and Wales
Citing:
Applied – Re Allen (dec’d) CA 1953
The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in . .

Cited by:
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 December 2021; Ref: scu.510142

Rogers, Re In the Estate of: ChD 6 Apr 2006

The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having decided at conference ‘where a testator has made a will appointing partners in a firm as executors and the firm has subsequently converted to a limited liability partnership, applications for grants coming from members of the limited liability partnership will no longer be allowed. ‘
Held: Lightman J said ‘For testators adopting a clause in the terms of clause 2 of the Will the legal distinction between a solicitors’ partnership and a solicitors’ (confusingly named) limited liability partnership and between a profit sharing partner in a solicitors’ partnership and a profit sharing member of a limited liability partnership is likely totally to escape them, unless given a lesson in the law which they may well not follow. Even if they do grasp the distinction, they are likely to regard it as a distinction without any relevant difference for their purposes. ‘ Therefore: ‘upon the true construction of the Will probate should be granted to applicants who are profit sharing members of the LLP.’ However, only profit-sharing partners in a firm may be granted probate.

Lightman J
Times 03-May-2006, [2006] EWHC 753 (Ch), [2006] 2 All ER 792, [2006] 1 WLR 1577
Bailii
England and Wales
Citing:
Cited – In re Horgan ChD 1971
The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors ‘who may act through any partner or partners of that firm or their successors in business at the date of my . .
Cited – Oswald Hickson Collier and Co (a firm) v Carter Ruck HL 1984
A firm is a partnership of two or more persons, and a one man practice is not a firm.
Lord Denning MR said: ‘It was submitted by Mr Cullen that – as the relationship between a solicitor and his client is a fiduciary relationship – it would be . .
Cited – Re Orwell’s Trust ChD 1982
The term ‘firm’ may include a company: ‘Whilst the term ‘firm’ in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company.’ . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 13 December 2021; Ref: scu.240115

Lim and Others v Walia: ChD 26 Sep 2012

The court was asked: ‘where the proceeds of a fixed term joint life policy are paid over as the result of the death of the first of the joint lives insured, but in circumstances where it is to be assumed that the payment of the sum insured might have been brought forward on the footing that the deceased had been suffering from a terminal illness, was the deceased, immediately before her death, entitled to a joint tenancy of the lump sum life cover for the purposes of section 9 of the 1975 Act?’
Held: The court should not ignore the fact that, immediately before her death, the deceased, together with her joint policy owner, the defendant, had a crystallised right, subject to proof, to have her death benefit brought forward because of her diagnosed terminal illness.

Hodge QC J
[2012] EWHC 4187 (Ch)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – Powell v Osbourne CA 1993
The deceased had separated from his wife and was cohabiting with Miss Osbourne. The deceased and Miss Osbourne purchased a property as joint tenants, with the assistance of a mortgage. The purchase price had been andpound;91,000 and the mortgage was . .
Cited – Murphy (By Her Litigation Friend Stockmont) v Holland CA 19-Dec-2003
A married couple had taken out an insurance policy on their joint lives. The policy was maintained after they divorced. On his death, his child by the later marriage claimed a share in the policy under the 1975 Act.
Held: (Chadwick LJ . .

Cited by:
Appeal from – Lim (An Infant) v Walia CA 29-Jul-2014
The parties disputed a claim under the 1975 Act. Immediately before her death, the deceased had, because of her medical condition, a vested right to bring forward an insurance benefit, but that right had ceased upon her death. The court had found . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 11 December 2021; Ref: scu.472525

Jeffs v Wood and others: CA 1723

Jeffs senior had made a will appointing his son Jeffs junior as his executor and leaving a legacy of pounds 500 to his nephew Wood, who was indebted to the testator in a smaller sum. Wood was made bankrupt after the testator’s death, but before the legacy had been paid.
Held: Sir Joseph Jekyll MR directed the executor to pay Wood the balance of the legacy after retention by the executor of the full amount of Wood’s debt to the testator.

Sir Joseph Jekyll MR
[1723] EngR 25, (1723) 2 P Wms 128, (1723) 24 ER 668 (B)
Commonlii
England and Wales
Cited by:
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 December 2021; Ref: scu.389913

Smith and Others (Mrs Crawford Brown’s Trustees) v Brown and Others: SCS 18 Jul 1890

(Court of Session Inner House First Division) By antenuptial trust-deed executed in Scotland a domiciled Scotswoman in contemplation of her marriage conveyed her whole estate to trustees, directing them to pay her the income during her life, to hold and apply the capital for behoof of the issue of the marriage, and failing them ‘for behoof of my heirs and assignees in fee.’ The truster married in Australia a domiciled Australian, and died there without issue.
In a competition between her heir-at-law, her heirs in mobilibus, and her husband, the latter maintained that he was entitled to the whole estate in terms of the law of the truster’s domicile.
Held that although according to the law of Australia the husband would have taken jure mariti if there had been no destination in the deed beyond the wife, as there was a destination to ‘heirs and assignees,’ which did not include the husband, and as the deed regarded as a will was not revoked by marriage, the husband’s claim fell to be dismissed.

[1890] SLR 27 – 995
Bailii
Scotland

Family, Wills and Probate

Updated: 11 December 2021; Ref: scu.614036

In re Beaumont: ChD 1902

Buckley J described a donatio mortis causa as: ‘a singular form of gift. It may be said to be of an amphibious nature being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the tide becomes absolute not under but as against his executor.
In order to make the gift valid it must be made so as to take complete effect on the donor’s death’.

Buckley J
[1902] 1 Ch 892
England and Wales

Wills and Probate

Updated: 11 December 2021; Ref: scu.548012

In re Horgan: ChD 1971

The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors ‘who may act through any partner or partners of that firm or their successors in business at the date of my death not exceeding two in number to be the executors and trustees of this my will’, but the firm not having a personality in law probate could not be granted probate to it.
Latey J said: ‘testators often want their solicitors to act as executors and, in case the individual solicitors they have in mind at the time of giving instructions pre-decease them, they want an appointment which will enable succeeding partners to act. Also they want such appointment to cover such contingencies as the sale of the practice or its amalgamation with another . .
The law does not permit the appointment as executor of a partnership firm as such. Where a will is so phrased as to purport to do this, the court construes it as appointing the individual partners as executor . .
Mr Bingham [for the Law Society] argued that prima facie it is wholly inappropriate to say: ‘I appoint X, Y and Z and they can act through A, B and C.’ But, he says, meaning can be given to it if one were to treat the firm as though it were a company and say ‘I want the partners at the date of my death . . ‘ the natural construction of the clause as a whole is that the testator was contemplating and intending the appointment of all [the partners], a grant to two and power reserved to the others.’

Latey J
[1971] P 50
England and Wales
Cited by:
Cited – Rogers, Re In the Estate of ChD 6-Apr-2006
The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 11 December 2021; Ref: scu.240150

Re Tuck’s Settlement Trusts: CA 1 Nov 1977

By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community.

Lord Denning MR Lord Russell of Killowen, Eveleigh LJ
[1977] EWCA Civ 11, [1978] Ch 49, [1978] 1 All ER 1047, [1978] 2 WLR 411
Bailii
England and Wales
Citing:
Cited – Re Coxen, McCallum v Coxen ChD 1948
The provision for an annual dinner for the charity trustees did not undermine the body’s charitable status.
Jenkins J summarised the law applicable where ‘a fund or the income thereof is directed to be applied primarily to purposes which are . .
Cited – Whishaw v Stephens (on appeal from In re Gulbenkian’s Settlement) (No 1) HL 31-Oct-1968
Parties disputed the effect of clauses describing the beneficiaries of a trust.
Held: The clause did not make sense as it stood. In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of . .
Cited – McPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
Cited – Clayton v Ramsden HL 1943
A condition in the will was that the legatee, his daughter, should not marry a person ‘not of Jewish parentage and of the Jewish faith.’
Held: The condition was void for uncertainty. Lord Russell of Killowen said: ‘The courts have always . .
Cited – Re Allen (dec’d) CA 1953
The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in . .
Cited – Patton v The Toronto General Trusts Corporation and Others PC 30-Jun-1930
(Ontario) The court considered the validity of gifts of annuities made subject to a condition precedent that the beneficiary proves himself to be ‘of the Lutheran religion’.
Held: The claim to the annuity was made out. Evidence might be given . .
Cited – Re Tarnpolsk ChD 1958
It was impossible to give sufficient meaning to the phrase ‘a person of the Jewish race’, and the condition failed for conceptual uncertainty, even in a condition precedent. . .
Cited – Re Selby’s Will Trusts ChD 1966
. .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 11 December 2021; Ref: scu.262703

Osoba v Osoba and others: CA 31 Oct 1978

Appeal by the plaintiff from an order declaring upon the true construction of the will of Patrick Jacob Osoba deceased, and in the events which have happened, that the residue of the estate of the testator, situate in England, is held upon trust for the persons other than the testator’s mother, named in clause 3 of the said will in equal shares absolutely.
Held: there is a general rule that when one sees a gift of income without any gift over to a particular named person for a particular purpose, that ordinarily the purpose is a mere indication of motive and does not cut down the out and out gift.

Buckley, Goff, Eveleigh LJJ
[1979] 1 WLR 247, [1979] 2 All ER 393, [1978] EWCA Civ 3
Bailii
England and Wales

Wills and Probate, Trusts

Updated: 11 December 2021; Ref: scu.262696

Re Orwell’s Trust: ChD 1982

The term ‘firm’ may include a company: ‘Whilst the term ‘firm’ in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company.’

Vinelott J
[1982] 1 WLR 1337, [1982] 3 All ER 177
England and Wales
Cited by:
Cited – Rogers, Re In the Estate of ChD 6-Apr-2006
The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions, Company

Updated: 11 December 2021; Ref: scu.240152

Jenkins v Gaisford, Re Jenkins (deceased)’s goods: ChD 1863

The testator had become infirm and unable to sign his name. He had made a stamp which reproduced his signature. He used it to execute his will. The will was challenged.
Held: The will had been validly executed. The requirement of the Act could be fulfilled by somebody else executing a document on the direction of the testator, and therefore was equally fulfilled in this case.

164 ER 1208
Wills Act 1837 9
England and Wales

Wills and Probate, Administrative

Updated: 11 December 2021; Ref: scu.174455

Reddel v Dobree: 22 Jul 1839

The donor gave

[1839] EngR 945, (1839) 10 Sim 244, (1839) 59 ER 607
Commonlii
England and Wales
Cited by:
Cited – Sen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 December 2021; Ref: scu.311477

Duffield v Elwes: 1 Jun 1826

[1826] EngR 967, (1826) 2 Sim and St 544, (1826) 57 ER 454
Commonlii
England and Wales
Citing:
See Also – Duffield v Elwes 12-Jun-1823
Land subject to mortgage – possible gift donatio mortis causa? . .
See Also – Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others 1825
. .

Cited by:
Cited – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See Also – Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 07 December 2021; Ref: scu.325731

Lilleyman v Lilleyman and Another: ChD 26 Apr 2012

Costs of and occasioned by Mrs Lilleyman’s claim for reasonable financial provision from the net estate of her late husband.

Mr Justice Briggs
[2012] EWHC 1056 (Ch), [2013] 1 Costs LR 25, [2013] 1 All ER 325, [2012] WTLR 1033, [2012] 1 WLR 2801, [2013] 1 FCR 219, [2013] 1 FLR 69, [2012] Fam Law 949
Bailii
England and Wales

Wills and Probate, Costs

Updated: 06 December 2021; Ref: scu.453019

Tod v Judith Cobb Lady Barton, William Godfrey Lukes Barton, The Royal Society of Chemistry, In re Barton (Deceased): ChD 20 Feb 2002

The deceased was an English scientist who died domiciled in Texas. His beneficiaries in England executed a deed of variation, but this would not be recognised in the law of Texas. The will expressly stated it was subject to the laws of England. Texan law would override this.
Held: The essential validity of a will in so far as it relates to movables is governed by the law of the domicile at death. The question was however as to the applicability of the rule in Saunders v. Vautier, which allowed sui juris beneficiaries to execute a variation. Here the convention applied. The express choice of law was limited to those matters over which the testator had the opportunity to choose. That did not apply to the trusts created by the will. However, the convention suggested because of the several remaining connections with England, that English law applied to the trust. The deed of variation was valid.

Mr Justice Lawrence Collins
[2002] EWHC 264 (Ch)
Bailii
Recognition of Trusts Act 1987, Hague Convention of 1985 on the Law Applicable to Trusts and their Recognition Art 6.1
England and Wales
Citing:
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 December 2021; Ref: scu.167736

Townsend v Moore: PDA 21 Dec 1904

Prima facie every testamentary document duly executed in accordance with the provisions of the Wills Act ought to be admitted to probate. But, if there are two testamentary documents of the same date and it cannot be ascertained which of them was executed first, and their provisions are so inconsistent that they cannot stand together, the presumption in favour of admissibility will be rebutted, and neither document will be admitted to probate.
But when the provisions of two testamentary documents, the priority of which is uncertain and in neither of which there are express words of revocation, are apparently inconsistent, the Court will endeavour so to construe the words that if possible the two documents may stand together and may both be admitted to probate as expressing together the whole testamentary intention of the testator.
The court was asked how far a second codicil had revoked an earlier one.
Held: It was necessary for the court to construe the subsequent will. If the terms of the subsequent will are ambiguous, it is necessary for the court to act as a court of construction to determine the extent, if any, of the inconsistency.
Vaughan Williams LJ said: ‘Then Sir James Hannen (in Jenner v Ffinch) proceeded to point out that, if the second document is ambiguous, parol evidence of the surrounding circumstances will be admissible in order to enable the Court to determine the intention of the second document. Speaking for myself, I should hesitate to say that that dictum would extend to the admission of parol evidence of the intention of the testator according to the view of those who were present at the time of the execution of the testamentary document. I think the basis for this principle (which, indeed, is plainly laid down in the first case which I cited by Sir James Wilde, that when there is, as between two documents properly executed in accordance with the Wills Act, the question to be solved how far the one affects the other, the Probate Court must to that extent and for this purpose act as a Court of construction) is this – that if a document purports to be testamentary, and it is executed in accordance with the provisions of the Wills Act, prima facie that document ought to be admitted to probate. In order to reject such a document you have to displace that presumption.’

Vaughan Williams LJ
[1905] P 66, [1904] UKLawRpPro 44
Commonlii
England and Wales
Cited by:
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 December 2021; Ref: scu.375067

O’Learly v Douglass: 25 Jan 1878

The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ However there were certain charitable donations contained in the wills which, under the law at the time, would have failed if dependant on the second will but would have been valid if effected by the earlier will. After referring to Birks, he said the Court may draw what light it can from such evidence.’ The function of the Court was ‘to admit to probate all testamentary papers which a testator has duly executed and which he has not revoked’.

Warren J
(1878) 1 LR IR 45, [1878] IELawRp 9
England and Wales
Citing:
Cited – Birks v Birks 21-Apr-1865
Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the . .

Cited by:
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 December 2021; Ref: scu.375066

Read v Great Eastern Railway Company: QBD 25 Jun 1868

A railway passenger was injured; he sued and was awarded damages. He died later from injury on the accident.
Held: The widow could not bring an action for loss of dependency under section 1 of the 1846 Act. The cause of action was the defendants’ negligence, which had been satisfied in the deceased’s lifetime, and that the death of D. Read did not create a fresh cause of action.
Lush J said that the statute overcame the old rule that a person’s action ended with his death. It provided a different mode of assessing damages but did not give a fresh cause of action.
Blackburn J said: ‘Before that statute, the person who received a personal injury and survived its consequences, could bring an action and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law, the statute was passed.’ and ‘Here, the party injured could not ‘maintain an action in respect thereof’ because he had already received satisfaction.’ Section 2 regulated the amount of damages and provided for apportionment in a manner different from that which would have been awarded to a man in his lifetime. He continued: ‘This section may provide a new principle as to the assessment of damages but it does not give any new right of action.
The intention of the enactment was that the death of the person injured should not free the wrongdoer from an action and in those cases where the person injured could maintain an action, his personal representatives might sue.’

Blackburn J, Lush J
[1867-68] LR 3 QB 555, [1868] UKLawRpKQB 83
Commonlii
Fatal Accidents Act 1846 1 2
England and Wales
Cited by:
Cited – Reader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Wills and Probate

Updated: 04 December 2021; Ref: scu.252561

In the Goods of Oswald: 17 Feb 1874

The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’
Held: Hannen J said: ‘It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them.’ The judge had received and relied upon an affidavit from one of the executors who attended on the deceased when she executed it that no instructions were given to the person who drew up the second will to insert a clause of revocation, the will was never read over by or to the deceased before she executed it and she was not aware of the clause of revocation contained therein.

Sir James Hannen P
(1874) LR 3 P and D 162, [1874] UKLawRpPro 8, (1872-1875) LR 3 PD 162
Commonlii
England and Wales
Cited by:
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 December 2021; Ref: scu.375065

Seeman v Seeman: 22 Dec 1752

The testator had made his will in August 1735 leaving several pecuniary legacies. At some time some of those legacies had been obliterated. He died in 1751. One of the disappointed legatees challenged the will on the grounds that the obliteration had been made after the testator’s death or before his death but after he had lost full testamentary capacity.
Held: The obliterations had been made in the testator’s lifetime but after he had lost full testamentary capacity, and: ‘I likewise thought that it was not necessary that the deceased should be in his senses at the instant the alterations were made; it was sufficient that he was fully in his senses when he directed the alterations to be made, and that they were made in his lifetime; in the case of Garnet v Sellars, Delegates, the only questions were whether the deceased was in his senses when he gave instructions for his will; and whether the will was reduced to writing before the testator was dead; and the court being satisfied on those two points, pronounced for the will without enquiring whether he remained in his senses during the time the will was writing.’

Sir George Lee
[1752] EngR 169, (1752) 1 Lee 181, (1752) 161 ER 67
Commonlii
England and Wales
Cited by:
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 December 2021; Ref: scu.378387

Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others: 1825

[1825] EngR 313, (1825) 3 B and C 705, (1825) 107 ER 894
Commonlii
England and Wales
Citing:
See Also – Duffield v Elwes 12-Jun-1823
Land subject to mortgage – possible gift donatio mortis causa? . .

Cited by:
See Also – Duffield v Elwes 1-Jun-1826
. .
See Also – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See Also – Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 02 December 2021; Ref: scu.326404

Simon v Byford and Others: CA 13 Mar 2014

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 December 2021; Ref: scu.522398

Moore v Darton: 13 Jun 1851

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 30 November 2021; Ref: scu.296922

Hawkins v Blewitt: 1798

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 November 2021; Ref: scu.669948

Pla and Puncernau v Andorra: ECHR 8 Aug 2011

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

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Wills and Probate

Updated: 28 November 2021; Ref: scu.519437

Gardner v Parker And Others: 28 Apr 1818

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

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 November 2021; Ref: scu.332388

Ward v Turner: 20 Jul 1752

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 November 2021; Ref: scu.378327

Sen v Headley: CA 28 Feb 1991

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

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 25 November 2021; Ref: scu.262630

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

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.323959

Birch v Treasury Solicitor: CA 1950

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.548013

In Re Craven’s Estate: ChD 1937

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.548014

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

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.547670

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

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.358011

Duffield v Elwes: 12 Jun 1823

Land subject to mortgage – possible gift donatio mortis causa?

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 22 November 2021; Ref: scu.328638

Delqoffe v Fader: ChD 1939

Conditions for Donatio Mortis Causa

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

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

Wills and Probate

Leading Case

Updated: 22 November 2021; Ref: scu.669896

Cain v Moon: QBD 9 May 1896

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.669895

Snellgrove v Baily: 11 Mar 1744

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 November 2021; Ref: scu.383578

Elliott v Elliott: 16 Jul 1841

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

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

Wills and Probate

Updated: 20 November 2021; Ref: scu.309111

Mitchell And Mitchell v Gard And Kingwell: 27 May 1862

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 November 2021; Ref: scu.286877

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

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

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

Wills and Probate

Updated: 19 November 2021; Ref: scu.632643

Rex v Saunders: 1719

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 November 2021; Ref: scu.371600

Elliott v Elliott: 3 Jul 1846

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

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

Wills and Probate

Updated: 17 November 2021; Ref: scu.302746

In re George’s Will Trusts: ChD 1949

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

Jenkins J
[1949] 1 Ch 154
England and Wales
Cited by:
Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 November 2021; Ref: scu.194475

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

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

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

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

Dunne v Byrne: PC 22 Feb 1912

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

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

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

Lists of cited by and citing cases may be incomplete.

Trusts, Charity, Wills and Probate

Updated: 17 November 2021; Ref: scu.181218

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

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

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

Wills and Probate

Updated: 12 November 2021; Ref: scu.632638

Challen v Challen and Another: ChD 27 May 2020

Forfeiture rule disapplied after spousal abuse

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

HHJ Paul Matthews
[2020] EWHC 1330 (Ch), [2020] WLR(D) 356
Bailii, WLRD
Forfeiture Act 1982
England and Wales
Citing:
Cited – Cleaver 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 – In the Estate of Cunigunda Crippen deceased 1911
Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
Cited – In Re Estate of Hall CA 1914
The rule of forfeiture applied as much to manslaughter as to murder. . .
Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Gray v Barr ChD 1970
The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public . .
Cited – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Cited – Regina v Cole CCA 1965
Six men robbed the bank manager and his assistant of monies in a safe in the vault of the bank premises. Two days later the appellant paid part of the proceeds of the robbery into two banks, located nearby to the vicinity of the robbery. Wax seals . .
Cited – S v Recorder of Manchester and Others HL 1971
S, a 16 year old boy pleaded guilty to attempted rape before a juvenile court. The magistrates adjourned the case for inquiry reports. On the adjourned hearing, his legal representative referred to evidence of the boy’s mental condition, and asked . .
Cited – Land v Land; In re Land, deceased ChD 13-Jul-2006
The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Cited – Chadwick v Collinson and Others ChD 24-Sep-2014
The deceased and the claimant lived together for about 10 years in an apparently stable and loving relationship. They had a son together. They also co-owned a house (by way of joint tenancy) in which they lived. In April 2013 the claimant was . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Criminal Practice

Updated: 12 November 2021; Ref: scu.650955

Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts: HL 14 Mar 1921

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

Viscount Cave, Viscount Finlay
[1921] 2 AC 1, [1921] UKHL TC – 7 – 646
Bailii
Income Tax Act 1842 88
England and Wales
Citing:
Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .

Cited by:
Cited – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Income Tax

Leading Case

Updated: 11 November 2021; Ref: scu.524660

Agulian and Another v Cyganik: CA 24 Feb 2006

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

Mummery LJ, Longmore LJ, Lewison J
[2006] EWCA Civ 129
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Cited – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
Cited – Aitchison v Dixon 1870
The testator, William Allan, had been Lord Provost of Edinburgh and unmarried. When 40 he moved to England ‘for a wife’ and ‘had the good fortune to win the hand of a widow . . of considerable wealth and expectations’. They lived for a while in . .
Cited – Atorney-General v Yule and Mercantile Bank of India 1931
The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin. . .
Cited – Forbes v Forbes 3-Mar-1854
General Forbes died. It became necessary to decide what was his domicile at the date of death. He had been born in Scotland, but then served for 35 years in India, before retirng to live in London.
Held: The domicile in India was a domicile of . .
Cited – Winans v Attorney-General HL 1904
A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
Cited – Abraham v Attorney-General 1934
. .
Cited – Cordell v Second Clanfield Properties Ltd 1969
In a fast developing area of law, judges should acknowledge the value of ‘fertilisers of thought’: ‘argued law is tough law . . I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the . .
Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – AEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 11 November 2021; Ref: scu.238704