Category: Wills and Probate

Spiers v English: 1907

The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if the circumstances lead reasonably to the investigation in regard to a propounded document. In the latter case the costs may be left to be borne by those who incurred them. In the former the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.
Sir Gorell Barnes P said: ‘In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.’
Sir Gorrell Barnes P
[1907] P 122
England and Wales
Cited by:
Cited – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
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 . .
Endorsed – Re Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.182792

Vincent v Revenue and Customs (Inheritance Tax – Whether The Drafting In A Will Created An Interest In Possession): FTTTx 30 Oct 2019

INHERITANCE TAX – whether the drafting in a will created an interest in possession – yes – was the interest disclaimed – no
[2019] UKFTT 657 (TC)
Bailii
Administration of Justice Act 1982 21, Inheritance Tax Act 1984 43
England and Wales

Updated: 27 September 2021; Ref: scu.644055

Johnston v Henry-Anderson and Others (Johnston’s Trustees): SCS 16 Nov 1892

A testatrix directed her trustees to hold one-half of her estate for her nephew in trust until he reached the age of twenty-five, with certain discretionary powers as to payment of interest and earlier payment of part of the capital, ‘but which discretion will lie wholly with my said trustees, whom I hereby appoint to be tutors and curators to him until he attain the age of twenty-five years complete.’ The trustees were directed to hold the remaining half of the estate for behoof of the testatrix’s brother and his children nominatim. By a codicil the testatrix cancelled the provision in favour of her brother and his children. She left her brother a legacy of pounds 100, and directed that the residue should be disposed of among her relatives ‘according to their legal rights.’
In a special case for the opinion of the Court it was decided that the half of the residue mentioned in the codicil fell to be divided equally between the brother and the nephew, and was immediately payable to them. Two of the trustees declined to accept the office of tutor, but one of them accepted, and the nephew’s share of the intestate succession was paid over to him as his tutor and guardian.
In an action of accounting and for payment against the trustees by the mother of the nephew, as his natural guardian under the Guardianship of Infants Act 1886- held that as the share now payable to the nephew passed to him as intestate succession, the trustees had no power to receive or administer it, and that the pursuer was entitled thereto.
Opinion per curiam, that the appointment of the trustees as tutors and curators was a joint appointment, and that one of them could not validly accept the office, the others declining to do so.
[Sheriff of Perthshire
[1892] SLR 30 – 97
Bailii
Scotland

Updated: 27 September 2021; Ref: scu.613587

Crellin v Latta: SCS 16 Nov 1892

One of the parties to an antenuptial contract of marriage conveyed to trustees certain funds to which ‘she will succeed in and through the settlements of her father, particularly a sum of pounds 4000, or such other sum as she may be entitled to’ under the said settlement. She never expressly discharged her claim to legitim, and the claim was not satisfied, as neither she nor her representatives ever received any payment or took any benefit under her father’s settlement. Nothing had happened to prejudice the rights of other beneficiaries, and the fund out of which legitim was payable was still extant.
In an action by her trustee and executor under a will executed subsequent to her settlement- held that the provisions of the antenuptial contract did not amount to election to take her conventional provisions, and that the pursuer as her representative was entitled to the share of legitim which vested in her on her surviving her father, with interest to date.
Lord Wellwood, Ordinary
[1892] SLR 30 – 72
Bailii
Scotland

Updated: 27 September 2021; Ref: scu.613581

Templeman v Warrington: 23 Dec 1842

Testatrix bequeathed the residue of her funded property in trust for her niece for life, and, after her death, to be equally divided amongst all her children, whether sons or daughters, share and share alike: in case it should happen that there was but one child at the niece’s death, then to go to that one only child ; and in case of failure of issue to go as the niece should appoint by her will. The niece had eleven children, three of whom died in her lifetime. Held, that all the children took vested interests, and, as more than one survived their mother, there was no divesting of interests.
[1842] EngR 1223 (B), (1842) 13 Sim 267
Commonlii
England and Wales

Updated: 21 September 2021; Ref: scu.308178

Dr Gilbert Wauchope, and Agnes His Sister v Andrew Wauchope of Niddrie, Esq: HL 14 Jun 1737

Succession – Tutor and Curator – Minor – Found that curators or administrators cannot directly alter the minor’s or constituent’s succession, by taking bonds secluding executors in lieu of bonds to heirs and executors, without the consent of the minor or constituent.
[1737] UKHL 1 – Paton – 200, (1737) 1 Paton 200
Bailii
England and Wales

Updated: 20 September 2021; Ref: scu.554681

Gaynon and Ann His Wife, Late Ann Foley v Wood: 19 Jul 1759

[1759] EngR 97, (1759) Dick 331, (1759) 21 ER 296
Commonlii
England and Wales
Cited by:
See Also – Wood v Gaynon 2-Mar-1761
The plaintiff sought a decree to compel a life tenant and her husband to put and keep the premises in repair, or the appointment of a receiver with directions to repair the premises. The plaintiff could not sue at law because a party who shared the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.377183

In re Segelman (dec’d): ChD 1996

The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the Court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality represents his intentions is usually of such weight that convincing evidence to the contrary is necessary.’ The section required three questions to be examined: first, what were the testator’s intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error or a failure on the part of someone to whom the testator has given instructions in connection with his will, to understand those instructions.
The jurisdiction conferred by section 20 of the 1982 Act in England was limited to cases in which ‘the intended words of the testator’ can be identified with precision: ‘In my view the jurisdiction conferred by section 20(1), through paragraph (a) extends to cases where the relevant provision in the will, by reason of which the will is so expressed that it fails to carry out the testator’s intentions, has been introduced (or as in the present case has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect.’
Chadwick J: ‘The third question in relation to the claim for rectification is whether the failure of cl 11(a) to carry out the testator’s intention is in consequence of a clerical error or a failure to understand his instructions, or has come about for some other reason. I am satisfied that the reason why cl 11(a) with its proviso did not carry out the testator’s intention was that Mr White failed to appreciate on 5 May 1992 that the proviso which he had included in the draft will on his own initiative had become inapt once he had been instructed that the second schedule was to take the form which it did. Once he had a list for inclusion as the second schedule which included the issue of five of the six named beneficiaries Mr White ought to have deleted the proviso to cl 11(a) from the draft will. Failure to do so was a mistake. That mistake did not arise from any failure by Mr White to understand his instructions. Mr White told me that he simply forgot that the proviso was there. The question is whether that mistake can properly be regarded as a clerical error for the purposes of s 20(1).’ and
The distinction between (i) the introduction of words into a will per incuriam without advertence to their significance and effect (described in that passage as ‘a mere clerical error’), (ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions and (iii) the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) do not achieve the objective which he and the testator intended, was preserved when the law relating to the rectification of wills was altered by s 20(1) of the 1982 Act. The distinction had been recognised by the Law Reform Committee in their nineteenth report. . . Interpretation of Wills; a report which led to, but which was not wholly carried into effect by, the 1982 Act. The alteration of the law made by that Act gives power to the court to order rectification-as distinct from the former power merely to order the omission of words from probate-and extends that power to cases of failure to understand instructions, in addition to mistakes in consequence of clerical error; but there is no reason to think that that which the editor of Mortimer would have recognised as a clerical error in 1927 was not intended to be picked up by of s 20(1)(a)of the 1982 Act.
The mistake with which he was concerned lay in a failure to include in a new will made in 1989 a clause exercising a testamentary power of appointment in favour of her husband which had been conferred on the testatrix under the will of her father. The relevant clause exercising that testamentary power had been included in two earlier wills. The judge was satisfied that the testatrix intended that her 1989 will should include a provision precisely in the terms of the relevant clause in her immediately preceding will. He concluded: ‘It follows that in my judgment [the solicitor’s] error in failing to include in his draft new will a paragraph following the provisions of cl 4 of the 1979 will was an error made in the process of recording the intended words of the testatrix and, in my judgment, constituted a clerical error within s 20(1)(a) [of the 1982 Act].’
In reaching that conclusion the judge had considered the passage in Mortimer to which I have already referred and the judgment of Latey J in Re Morris (decd). He had also considered the Australian case of R v Comr of Patents, ex p Martin (1953) 89 CLR 381 and the nineteenth century English case of Re Sharp’s Patent, ex p Wordsworth (1840) 3 Beav 245, 49 ER 96. It was, I think, observations in those patent cases which led him to the view that: ‘the words ‘clerical error’ used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will.’
If taken out of context there is some danger, perhaps, that the judge’s reference to ‘the intended words of the testator’ might be thought to require a finding that the testator had actually reached the point of putting into words the relevant provision which was to give effect to his intention; or of approving words put to him by another for that purpose. There will, of course, be many such cases. Wordingham v Royal Exchange Trust Co Ltd was itself such a case, in that the judge was able to find that the error lay in not transposing the precise terms of the relevant clause in the testatrix’s earlier will. But, for my part, I do not think that the jurisdiction conferred by s 20(1)(a) of the 1982 Act is limited to cases in which ‘the intended words of the testator’ can be identified with precision.
In my view, the jurisdiction conferred by s 20(1), through para (a), extends to cases where the relevant provision in the will-by reason of which the will is so expressed that it fails to carry out the testator’s intentions-has been introduced (or, as in the present case, has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect. It is to this failure to apply thought that Latey J and the editor of Mortimer attach the phrase ‘per incuriam’. As Nicholls J pointed out in Re Williams (decd), Wiles v Madgin [1985] 1 All ER 964 at 969, [1985] 1 WLR 905 at 911-912 a testator writing out his own will can make a clerical error just as much as someone else writing out a will for him.
It follows that I am satisfied that the mistake which I have identified-namely, the failure by Mr White through inadvertence to delete the proviso to cl 11(a) from the draft will once he had the list for inclusion in the second schedule-can properly be regarded as a clerical error for the purposes of s 20(1) of the 1982 Act.
Chadwick J
[1996] Ch 171, [1996] 2 WLR 173, [1995] 3 All ER 676
Administration of Justice Act 1982 20
England and Wales
Citing:
Applied – Re Williams Deceased, Wiles v Madgin ChD 1985
A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – Simpkins v Pays 1955
The court found an intention to create legal relations and therefore an enforceable contract among the members of a family to share the winnings in a newspaper competition which the family regularly entered.
Sellers J said: ‘It may well be . .

Cited by:
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Powell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .
Cited – Goodman v Goodman, Clegg, Manuel ChD 14-Jul-2006
The claimant sought rectification of the will to alter a clause leaving a monthly sum to the first defendant. She said it did not reflect the deceased’s wishes. It was accepted that ‘ the burden of proof rests on her to establish a case that Guy’s . .
Cited – Clarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
Cited – Sprackling and others v Sprackling and Another ChD 6-Nov-2008
Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage. . .
Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Cited – Bimson, Re The Estate of ChD 26-Jul-2010
Application to rectify the will under the 1982 Act.
Held: The application succeeded. Henderson J said: ‘this case falls comfortably within the scope of clerical error within the meaning of section 20(1)(a). It appears to me plain that David . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.241679

Wintle v Nye: HL 1959

Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend of Mrs Wells. Mr Nye was appointed sole executor. Mrs Wells left the bulk of her large estate to him. The only evidence of her instructions for the will was that given by Mr Nye, in whose offices the will and codicil were executed. On the death of Mrs Wells probate of the will and codicil was obtained by Mr Nye.
Lt Col Wintle, as assignee of a person entitled in the event of the intestacy of Mrs Wells, attacked the validity of the will and codicil. He did not do so by advancing a positive case, such as lack of capacity, undue influence or fraud. Instead, he put Mr Nye to proof that Mrs Wells knew and approved the contents of her will and codicil. The case was tried by Barnard J with a jury, who found in favour of the will and codicil. By a majority the Court of Appeal dismissed the appeal brought on the ground that the judge had misdirected the jury. In the House of Lords, Lt Col Wintle appeared in person.
Held: The appeal succeeded, on the strict ground of a misdirection to the jury by the trial judge. Directions were given for the revocation of the will so far as it related to the gift of residue to the solicitor.
The court ought not to pronounce in favour of the validity of a will where the circumstances under which the will was prepared raised a well grounded suspicion that it did not express the testator’s mind. The court must be vigilant and jealous in circumstances in which a person who has prepared – or, in the vernacular, has ‘had a hand’ in the preparation of – a will under which he or she takes a benefit and seeks to admit it to probate. Viscount Simonds said: ‘It is not the law that in no circumstances can a solicitor or other person who has prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed’.
Viscount Simonds
[1959] 1 All ER 552, [1959] 1 WLR 284
England and Wales
Citing:
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 by:
Cited – Ewing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Boudh v Boudh and Another CA 22-Mar-2007
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.181902

In re Phelps: CA 1980

The intestate’s widow notified her husband’s personal representative that she had elected to exercise her statutory right to the matrimonial home. At first instance, Foster J held that the words ‘in or towards satisfaction’ were only applicable where the value of the entitlement was equal to, or exceeded, the value of the property, and were not applicable in a case where the entitlement would be more than satisfied by the appropriation. In such a case, the surviving spouse had no right of election.
Held: The appeal was allowed. There would be no point or purpose in the words ‘in or towards satisfaction’ they were to be confined to cases where either the value of the entitlement exceeded that of the property, or was exactly equal to it. The effect of the statute was to extend the power of appropriation by an administrator of an intestate’s estate to include a transaction that is partly an appropriation and partly a sale; and, in the light of the apparent policy of the Schedule, this confers a right of election upon the surviving spouse where the value of the property exceeds that of the entitlement but in which case the surviving spouse must make a cash payment to the deceased’s estate equal to the difference.
It is not only permissible but necessary to have regard to cross-headings in statutes.
Templeman LJ said: ‘The effect of the section is that for purposes of Schedule 2 a transaction which in essence is partly appropriation and partly sale becomes an appropriation, and Schedule 2 must be read as if the section included this new hybrid power of appropriation . . The section does not merely confer a new power
on the personal representatives; it directs that the power of appropriation under
section shall include the new power . . the object of that wording is to ensure that when, pursuant to the statute, the surviving spouse requires the personal representative to exercise the power conferred that requirement will include a duty to exercise where appropriate that power as extended.’
Buckley, Templeman and Bridge LJJ
[1980] 1 Ch 275
England and Wales
Cited by:
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.229698

In re Parkard: 1920

[1920] 1 Ch 596
England and Wales
Cited by:
Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.179723

Strover and Another v Strover and Another: ChD 10 May 2005

Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership funds, but from drawings accounts. The premiums had continued to be paid by the partnership after his retirement and also after his death.
Held: The trusts should be rectified to hold part of the proceeds for the defendant family members. The family had not raised the issue of an estoppel in their pleadings, but the judge finding that such a pleading was proper, he could apply an estoppel in the absence of it being pleaded.
Hart J
[2005] EWHC 860 (Ch), Times 30-May-2005
Bailii
England and Wales
Citing:
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Oxley v Hiscock CA 6-May-2004
oxley_hiscockCA2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Ramsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.224888

Ellis v Selby: 23 Mar 1835

Testator gave his bank stock to trustees, in trust for F. B, for life, and his funded property to the same trustees, in trust for WRE for life, and, after his death, in trust for his issue ; and he directed the trustees, after the decease of FB, to pay the dividends of his Bank stock to WRE for life, and, after his decease, to apply the dividends and capital for the benefit of the children or child of WRE, in such manner as he had directed respecting his funded property ; and, should WRE die without issue male or female of his body lawfully begotten, then he directed the trustees to apply his funded property and Bank stock, for such charitable or other purposes as they should think fit, without being accountable to any person; and he gave the residue of his personal estate and effects, wines, pictures, plate, books and furniture, to WRE Held, that the ultimate trust of the funded property and bank stock was not too remote, but was void for uncertainty; and that the residuary clause was general.
[1835] EngR 592, (1835) 7 Sim 352, (1835) 58 ER 872
Commonlii
England and Wales

Updated: 30 August 2021; Ref: scu.316100

Grundy v Ottey: CA 31 Jul 2003

The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him financially, and had suffered violence.
Held: Once a proprietary estoppel has been established, the remedy should be no more than is necessary to protect against unconscionable conduct. The judge was entitled to find the establishment of the estoppel, and that no claim was available under the 1975 Act.
[2003] EWCA Civ 1176, [2003] WTLR 1253
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – In re Basham dec’d; Basham v Basham 1986
The claimant and her husband had helped her mother and her stepfather throughout the claimant’s adult life. She received no remuneration but understood that she would inherit her stepfather’s property when he died. After her mother’s death and until . .

Cited by:
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.186398

John, Earl of Breadalbane v William Innes, George, Lord Reay, Et Alii: HL 11 Feb 1736

Foreign – A Scotchman dying in England, where his will was duly proved by the executor therein nominated, it was found that an executor-creditor could not recover in Scotland a debt due upon a bond to the deceased.
Oath of Party – Privilege- A claim of debt against a Peer being referred to his oath, the Court of Session found that he was not entitled to have his examination taken upon honour. This point was not expressly decided in the House of Lords.
[1736] UKHL 1 – Paton – 181, (1736) 1 Paton 181
Bailii
Scotland

Updated: 28 August 2021; Ref: scu.554677

Tempest v Lord Camoys: 18 Jan 1866

To a bill for the administration of real and personal estate, and for the appointment of a receiver and a new trustee, a plea in bar, by the alleged executors, that they had been prevented proving by the Plaintiff’s entering a caveat in the Court of Probate, was overruled.
[1866] EngR 61, (1866) 35 Beav 201, (1866) 55 ER 872
Commonlii
England and Wales
Cited by:
Appeal from – Tempest v Lord Camoys CA 1-Aug-1882
A testator gave his trustees a power to be exercised at their absolute discretion of selling real estates, with a declaration that the proceeds should be applied, at the like discretion, in the purchase of other real estates. He also gave them power . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.280772

Royal Society for The Prevention of Cruelty To Animals v Sharp and Others: CA 21 Dec 2010

The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of the band.
Held: The appeal succeeded. The court should not assume as a universal rule that a high street firm of solicitors will not take account of tax provisions in framing their advice. The natural readimng of the particular words used suggested the value of the house was first to be deducted.
Patten LJ said: ‘One thing on which the parties were in agreement was the approach of the Court to the construction of a will. As mentioned above, it was common ground before the judge that no extrinsic evidence was admissible. He had therefore to follow the guidance of Lord Simon LC in Perrin v Morgan [1943] AC 399 at 406 and to construe the language of the will so as to find: ‘the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.’
We have therefore to examine the language of the will in its context taking into account the will as a whole; any relevant background circumstances which inform the meaning of the words used; and giving to those words their ordinary meaning unless they are obviously used in some special or technical sense
. . it is dangerous to approach the assessment of the Testator’s intentions other than through the language of his will. The first relevant consideration in my view is that the will was professionally drafted by a solicitor who has to be assumed to be competent. Although solicitors do obviously make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the Court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.’
Lord Neuberger of Abbotsbury MR said: ‘ As Patten LJ impliedly acknowledges by his reference to Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896, the court’s approach to the interpretation of wills is, in practice, very similar to its approach to the interpretation of contracts. Of course, in the case of a contract, there are at least two parties involved in negotiating its terms, whereas a will is a unilateral document. However, it is clear from a number of cases that the approach to interpretation of unilateral documents, such as a notice or a patent, is effectively the same, as a matter of principle, as the court’s approach to the interpretation of a bilateral or multilateral document such as a contract: see Mannai Investments Ltd v Eagle Star Insurance Co plc [1997] AC 749 and Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9.
One obvious difference between a bilateral document such as a contract and a unilateral document such as a will, is that parties negotiating a contract may well be consciously content to include an obscurely drafted provision, on the basis that it represents an acceptable compromise, which enables overall agreement to be reached, whereas, save in a most exceptional case, which it is hard to conceive, a person making a will has no interest in obscurity.’
Patten, Black LJJ, Lord Neuberger of Abbotsbury MR
[2010] EWCA Civ 1474, [2011] 1 WLR 980, [2011] STI 253, [2011] STC 553, [2011] WTLR 311, (2011) 13 ITELR 701, [2011] PTSR 942
Bailii
Inheritance Tax Act 1984 4(1)
England and Wales
Citing:
Cited – Cancer Research Campaign v Ernest Brown 1998
An executor does not usually owe a duty to advise a beneficiary in connection with the affairs of the beneficiary. Tax avoidance is not an idea that runs naturally or should be attributed to ordinary people or to legal executives in a small firm of . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .

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

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.427374

Royal Society for The Prevention of Cruelty To Animals v Sharp and Others: ChD 19 Feb 2010

The parties disputed the effect of a term in the will leaving a share calculated according to the current rate of exemption from Inheritance Tax.
Held: ‘the purpose of clause 3 was to bequeath a legacy of the amount that was the maximum amount without inheritance tax being payable. The draftsman intended by the description to cover the possibility that the nil rate band might increase between the date of the will and the death. In other words it was intended that this legacy would be free of tax and would be an amount equal to the nil rate band at the time of the death of the Deceased.’ The claimant’s interpretation failed, and ‘ it is said that Trustees of charitable organisations are required to maximise the return for their charity but I really wonder whether the discharge of that duty required this action to be brought. In my view the RSPCA whatever the view as to the will ought really to have considered that the residuary legacy that I have determined it is entitled to was generous and ample provision out of this estate. The impact of the arguments on the size of the bequest to the Deceased’s brother was quite stark. This action has plainly caused distress to the Defendants and in my view ought not to have been brought.’
Peter Smith J
[2010] EWHC 268 (Ch)
Bailii
Inheritance Tax Act 1984 4(1)
England and Wales

Updated: 25 August 2021; Ref: scu.401667

Letterstedt v Broers: PC 22 Mar 1884

(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.’
. . and ‘It seems to their Lordships that the jurisdiction which a court of equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’
The court set out the principles underlying a decision to remove a trustee. Lord Blackburn said: ‘The whole of the matters which have been complained of, and the whole that, if this judgment stands, may yet have to be done by the Board, are matters which they had to do, as having accepted the burthen of carrying out the trusts which on the true construction of the will were imposed upon them, and so become trustees. What they had to do as executors merely, such as paying debts, collecting assets, andc., have long ago been over, and by the terms of the compromise the plaintiff cannot now say they have not been done properly. There may be some peculiarity in the Dutch Colonial law, which made it proper to make the prayer in the way in which it was done to remove them from the office of executor; if so, it has not been brought to their Lordships’ notice; the whole case has been argued here, and, as far as their Lordships can perceive, in the Court below, as depending on the principles which should guide an English Court of Equity when called upon to remove old trustees and substitute new ones. It is not disputed that there is a jurisdiction ‘in cases requiring such a remedy,’ as is said in Story’s Equity Jurisprudence, s. 1287, but there is very little to be found to guide us in saying what are the cases requiring such a remedy; so little that their Lordships are compelled to have recourse to general principles.
Story says, s. 1289, ‘But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity’
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate. The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries.’ He referred to cases in which there was a conflict between trustee and beneficiary and continued: ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’
However: ‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded.’
Lord Blackburn
[1884] UKPC 1, (1884) 9 App Cas 371, [1884] UKPC 18, [1884] UKLawRpAC 12
Bailii, Bailii, Commonlii
England and Wales
Cited by:
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Cited – Jones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Cited – Kershaw v Micklethwaite and Others ChD 12-Feb-2010
Application by the claimant, Mr Kershaw, for some or all of the defendants to be removed as executors of the Will of Mr Kershaw’s mother. . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.247442

In re Steed: CA 26 Jan 1960

The court considered an application under the 1968 Act to vary a trust. The testator had shown in the terms of his will a particular purpose in creating a protective trust; that was to protect the life tenant from improvident dealings with property in favour of certain members of her family.
Held: The court was satisfied that the testator’s purpose, evidenced in the will, was still justified at the time of the application to vary. That was a view also shared by the trustees, who opposed the application by the protected life tenant. In those circumstances there was an overwhelming reason for the continuation of the protective trusts and in the continuance of the interest of the paragraph (d) class of person. The court said that the 1958 Act conferred ‘a revolutionary discretion.’ The intentions, wishes and motives of the settlor or testator may be relevant and weighty in desiding whether to accept a proposed variation. The court upheld a refusal to approve a variation on the basis that the proposed variation was contrary to the testator’s clear intentions. The court had an unfettered discretion which it could refuse to exercise if the arrangement was contrary to the testator’s wishes.
Lord Evershed MR: ‘After all, if the court is asked to approve this proposal on behalf of a spectral spouse (if I may revert to that phrase) it must ask, I take it, why is the spectral spouse there at all under the trust? If one asks that question, nearly everything else, as it seems to me, follows. There is no doubt why the spectral spouse is there. It was part of the testator’s scheme, made as I think manifest by the language which I have read from the clauses in the will, that it was the intention and the desire of the testator that this trust should be available for the plaintiff so that she would have proper provision made for her throughout her life, and would not be exposed to the risk that she might, if she had been handed the money, part with it in favour of another individual about whom the testator felt apprehension, which apprehension is plainly shared by the trustees.’
Lord Evershed MR
[1960] Ch 407, [1960 1 All ER 487, [1960] EWCA Civ 2, [1960] 1 All ER 487, [1960] Ch 407
Bailii
Variation of Trusts Act 1958 1
England and Wales
Cited by:
Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.262817

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 choice, and it was easier to show a change of domicile of choice than for a domicile of origin. The court declined to make an order with respect to a case of a gift to build a bridge over the River Don in Scotland. This was in effect an issue of Scottish charity law, and the Scottish courts would have jurisdiction.
(1854) 18 Beav 552, (1854) Kay 341, [1854] EngR 317, (1854) 18 Beav 552, (1854) 52 ER 216
Commonlii
England and Wales
Citing:
See Also – Forbes v Forbes 9-Feb-1854
A man cannot have two domicils, at least with reference to the succession to his personal estate.
Legitimate children acquire by birth the domicil of their father.
An infant cannot change his domicil by his own act.
A new domicil . .

Cited by:
Cited – Gaudiya Mission and others v Brahmachary CA 30-Jul-1997
The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .
Cited – 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: . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.293174

Attorney-General v Sturge: 4 Nov 1854

The testatrix had left funds to support a school in Genoa.
Held: The courts have no authority to make a scheme where the trustees would not be within the jurisdiction of the English courts.
Sir John Romilly MR
(1854) 19 Beav 597, [1854] EngR 837, (1854) 52 ER 482
Commonlii
England and Wales
Cited by:
Cited – Gaudiya Mission and others v Brahmachary CA 30-Jul-1997
The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.200673

Vucicevic and Others v Aleksic and Others: ChD 10 Oct 2017

Consequential judgment
Paul Matthews HHJ
[2017] EWHC 2519 (Ch)
Bailii
England and Wales
Citing:
Main Judgment – Vucicevic and Another v Aleksic and Others ChD 20-Sep-2017
. .

Cited by:
See Also – Vucicevic and Another v Aleksic and Others ChD 14-Aug-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.597475

Vucicevic and Another v Aleksic and Others: ChD 20 Sep 2017

Paul Matthews HHJ
[2017] EWHC 2335 (Ch)
Bailii
England and Wales
Cited by:
Main Judgment – Vucicevic and Others v Aleksic and Others ChD 10-Oct-2017
Consequential judgment . .
Main Judgment – Vucicevic and Another v Aleksic and Others ChD 14-Aug-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.597464

In re Goodwin; Ainslie v Goodwin: ChD 1924

Request on condition – Annuity to Wife if smaller annuity under deed released within six months of testator’s death – estate encumbered – neither annuity paid to widow during her life – Death of widow without exercising realease – release by her executors – compliance with condition
The testator had given an annuity to his wife. In his will he gave another annuity expressed to be in substitution for it. The gift in the will was to be void if the wife did not release the lifetime gift. He died with no apparent prospect of any payment being made, and the wife did nothing to comply with the condition. Several years later it became possible to make payments.
Held: The condition was not personal to the widow, and since a release now would be as effective, it was a sufficient compliance with the condition.
Romer J
[1924] 2 Ch 26, [1924] 93 LJ Ch 331, [1924] 130 LT 822, [1924] 68 SJ 478
England and Wales
Cited by:
Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179724

Hayward v Jackson: ChD 18 Feb 2003

The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the will if the option lapsed, and no other detriment was suffered by the delay. The delay had been caused by the Capital Taxes Office’s failure to agree a value for the land. Time should not be taken to be of the essence, and the option remained exercisable. There was no distinction to be made here in interpreting wills between a gift and an option.
Mr Justice Lawrence Collins
Times 27-Feb-2003, [2003] EWHC 253 (Ch), Gazette 03-Apr-2003, , [2003] Ch 422
Bailii
England and Wales
Citing:
Cited – Lord Lilford v Powys Keck (No 1) 1862
. .
Cited – Talbot v Talbot ChD 1968
A testamentary option was given relating to two farms which provided for the price to be the ‘reasonable valuation’ of the farms.
Held: This option was enforceable and the court ordered an enquiry as to what was a reasonable price for the . .
Cited – Taylor v Popham 1782
PT, in his lifetime granted two annuities to his son and there being subsisting accounts between them by his will he gave him an annuity of andpound;600 on condition that he should within three months execute a release of all demands on his estate. . .
Cited – In re Parkard 1920
. .
Cited – In re Goodwin; Ainslie v Goodwin ChD 1924
Request on condition – Annuity to Wife if smaller annuity under deed released within six months of testator’s death – estate encumbered – neither annuity paid to widow during her life – Death of widow without exercising realease – release by her . .
Cited – In re Goldsmith 1947
The testator had directed his trustees to hold his freehold house upon trust, after the death of his wife, for a Mr Bingham, but subject to the payment of andpound;800 by him to his trustees within six months of his death to form part of his . .
Cited – Powell v Rawle 1874
A legacy was given to the testator’s daughter on the ‘express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the . .
Cited – Brooke v Garrod 1857
The testator directed his trustees to offer all his real estate to his brother at the price of pounds 2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, . .
Wrongly decided – In re Avard (dec’d) 1948
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.179584

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 dissenting) It was a matter for construction of the policy. Though there was no evidence as to the circumstances of the taking out of policy, the death benefit was intended by the parties to be payable to the survivor of either them; it was to be for the exclusive benefit of the survivor, and was intended to enable the survivor to deal with the financial consequences of the death of the other. If the policy was joint then under the 1975 Act the court had a discretion to make provision from it for the child.
Thomas LJ said: ‘Next the question arises as to whether it was likely that the parties would have intended to include within a policy a terminal illness benefit that was owed to them jointly and a death benefit that was not. It might at first sight be thought surprising that that would be the case, but on consideration, I do not think so. The benefit payable on terminal illness would be needed by both of the policy holders to defray the cost of that illness; in contradistinction, the benefit on death would only be required by the survivor. On analysis, therefore, the purpose of the benefits was different and different treatment within a composite policy accorded with the obvious intention attributed to the parties in respect of the different nature of the benefits.’
Lord Justice Chadwick, Lord Justice Pill , Lord Justice ThomasLord Justice Thomas
[2003] EWCA (Civ) 1862, [2004] 1 FCR 1
Bailii
Inheritance (Provision for Family and Dependants) Act 1975 9(1)
England and Wales
Citing:
Cited – General Accident Fire and Life Assurance Corporation v Midland Bank CA 1940
Three parties were named as the insured under a fire policy, a company occupying the insured premises, the freeholders of the premises and the bank who had a floating charge over the property of the occupiers. A question arose as to the nature of . .
Cited – Reed v Royal Exchange Assurance Co 1795
A wife is presumed to have an insurable interest in the life of her husband. . .
Cited – Griffiths v Fleming CA 4-Mar-1909
A husband and his wife effected with an insurance association a policy whereby, in consideration of a premium of which each paid part, a sum of money was made payable upon the death of whichever of them should die first to the survivor. The wife . .
Cited – Lea v Hinton 1854
One person may have an insurable interest not only in his own life, but also in the life of another. . .
Cited – Branford v Saunders 1877
One person may have an insurable interest in the life of another. . .

Cited by:
Cited – 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 . .
Cited – Lim (An Infant) v Walia CA 29-Jul-2014
lim_walia1407
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.
Updated: 16 August 2021; Ref: scu.188899

Stoeckert v Geddes (Appeal No 66 of 1998): PC 13 Dec 1999

PC Jamaica The claimant claimed against the estate of her former partner. Though not married they had lived together for many years, and she claimed there had been an express understanding that she would receive part of his estate. A constructive trust was claimed and denied.
Held: The facts alleged were not capable of sustaining the claim. Leaving the claimant in charge of his business whilst the deceased had gone to live abroad did not establish such a trust, and nor did the several statements made.
Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Saville of Newdigate, Lord Hobhouse of Woodborough
[1999] UKPC 52
Bailii, PC
England and Wales
Citing:
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.163208

In Re K (Deceased): CA 1986

The wife who had been subjected to years of abuse shot her violent husband dead in the course of an argument, when a loaded shotgun she had picked up and pointed at him as a threat to deter him from offering her further violence went off accidentally.
Held: The appeal against an order for relief failed. The 1982 Act could be used in this case to releive the wife of the severe consequences of the forfeiture rule.
[1985] Fam Law 19, [1986] Ch 180, [1985] 2 All ER 833, [1985] 3 WLR 234
Forfeiture Act 1982 2
England and Wales
Cited by:
Cited – Mack v Lockwood and Others ChD 19-Jun-2009
The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.428470

Pescatore v Valentino and Others: ChD 15 Jul 2021

Application on behalf of the Claimant in this action, for an interim anti-suit injunction directed to the First and Second Defendants, who are currently claimants in proceedings in Italy against the present applicant, concerning the inheritance of the late Vincenzo Pescatore. T
HHJ Paul Matthews
[2021] EWHC 1953 (Ch)
Bailii
England and Wales

Updated: 09 August 2021; Ref: scu.666358

Richardson v Rusbridger: 10 Mar 1855

A stock legacy bequeathed to several in succession, was appropriated by the executors, and the residue paid over. In a suit between the remainder-man and the executors alone, the legacy was transferred into Court, and the costs of suit were paid thereout. The tenant for life afterwards filed a claim to have the amount of costs recouped out of the residue. It was dismissed with costs.
[1855] EngR 296, (1855) 20 Beav 136, (1855) 52 ER 554
Commonlii
England and Wales

Updated: 30 July 2021; Ref: scu.292218

Hughes and Another (Edwardes’ Trustees) v Edwardes and Another: HL 25 Jul 1892

In an antenuptial marriage-contract the wife conveyed a sum of pounds 4000 to trustees. The deed provided that in the event of the marriage being dissolved by the predecease of the wife leaving children, the husband should have an alimentary liferent of this fund, that after his death the capital should be paid over to the children of the marriage on their attaining majority, and that if there were no children alive at the dissolution of the marriage, or should they all die before the terms of payment of their provisions as aforesaid, the husband should continue to have the liferent of the fund during his life, but that the whole capital should be subject to the wife’s disposal by will. In the parallel clause which dealt with the event of the husband predeceasing the wife, it was provided that the wife should have an alimentary liferent of the fund; that after her death the interest was to be applied for behoof of the children during their minority, and that on their attaining majority the capital was to be paid to them, but subject to the declaration that if ‘such children should all die before their mother, or . . should they all die before attaining majority, and without leaving issue of their own bodies,’ the fund should continue to be held for the alimentary liferent of the widow; and it was further declared that in the event of the wife surviving her husband, and of the failure of issue of the marriage, she should have the right to test on the capital. It was expressly provided that the provisions to children should not be payable, or become vested interests, or be transmissible by them until after the death of the longest liver of the spouses, and until the children attained majority.
The marriage was dissolved by the predecease of the wife, who was survived by one son, and left a will in which she made over all she possessed to her husband.
In an action by the husband and son for payment upon their joint discharge of the pounds 4000, held (rev. judgment of the First Division) that the trustees were bound to maintain the trust, not only for the protection of the husband’s alimentary liferent, but also for the possible issue of the son.
Lord Chancellor, Lord Watson, Lord Herschell, Lord Macnaghten, Lord Morris, and Lord Hannen
[1892] UKHL 911, 29 SLR 911
Bailii
Scotland

Updated: 29 July 2021; Ref: scu.634558

Commissioner of Stamp Duties (Queensland) v Livingston: PC 7 Oct 1964

A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New South Wales, but the husband’s estate was not yet fully administered. No clear residue had yet been ascertained and no final balance attributable to the shares of residue had been determined. The question was whether the deceased widow’s share in her husband’s real and personal estate in Queensland, a share that had devolved on her death on those entitled under her intestacy, was subject to Queensland succession duty. Did she die owning a beneficial interest in any real or personal property in Queensland?
Held: No Queensland succession duty was payable.
The estate of a deceased which devolves on personal representatives comes to them ‘virtute officii . . in full ownership, without distinction between legal and equitable interests’ but they hold the estate ‘for the purpose of carrying out the functions and duties of administration, not for [their] own benefit’.
A beneficiary under an estate has no interest in the property to be administered, but only a right to require the estate to be duly administered, and to receive an appropriate proportion of the nett estate.
Viscount Radcliffe said: ‘their Lordships regard it as clearly established that Mrs. Coulson was not entitled to any beneficial interest in any property in Queensland at the date of her death. What she was entitled to in respect of her rights under her deceased husband’s will was a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate’
Viscount Radcliffe
[1965] AC 694, [1964] UKPC 45, [1964] TR 351, (1964) 43 ATC 325, [1964] 3 All ER 692, [1964] 3 WLR 963
Bailii
Australia
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 – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Cited – Maye, Re (Northern Ireland) HL 6-Feb-2008
The defendant had admitted charges of obtaining property by deception. A confiscation hearing concluded that he had benefitted to a much greater extent than could be recoverd. Before then however both his parents had died, and he stood to inherit . .
Cited – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.190220

Joseph James, And Hannah His Wife v William Allen And Others, and The Attorney-General: ChD 30 Jun 1817

Bequest in trust for such ‘benevolent’ purposes, as the Trustees in their integrity and discretion may unanimously agree on; not to be supported as a charitable legacy; the word ‘benevolent’ not being to be restricted to the sense of ‘charitable’ so as to authorize the Court to say that the application of the property must be confined to such objects as are, strictly speaking, objects of charity. Therefore void for uncertainty, and distributable among the next of kin.
Elijah Waring, by his Will, after devising to his Niece the Plaintiff Hannah James for her life certain farms and lands therein described, and after her decease to her four daughters in fee, and making certain specific bequests of personal property to the said Plaintiff, gave to his Executors (the Defendants W. Allen, and J. Allen, and W. Matthews deceased) andpound;200 each, in consideration of their taking upon themselves the trusts of his will, and then proceeded as follows:
‘Lastly, touching all my personal property whatsoever and wheresoever not before disposed of, subject to whatever expences may be incurred relative to the ‘execution and fulfilment of this my will, I give and bequeath the same to my friends the aforesaid William Allen, Joseph Allen, and William Matthews (whom I constitute and appoint the Executors of this my Will), and to their Executors and Administrators, in trust to be by them applied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on.’
The Plaintiffs, by their bill, prayed that the will might be established, except as to the residuary bequest, and that such residuary bequest might be declared void; charging that the disposition was void for uncertainty.
Sir S. Romilly, Trower, and Phillimore, for the Plaintiffs, contended that this case was the same in principle with that of Morice v. The Bishop of Durham ‘(9 Ves. 399), and referred to Brown v. Yeall (7 Ves. 50, n.).
Hart and Spence, for the Defendants (the surviving Trustees and Executors), attempted to distinguish the cases. ‘Benevolence’ is technically a word of charity; but, when coupled with another (as in Morice v. The Bishop of Durham with the word ‘liberality’), it loses its technical sense, and is to be judged of by its acceptation in common language. It was on this ground that His Honor decided in the case referred to. But, when the word stands alone, as in the present case, it is to be construed according to its technical meaning.
The Lord Chancellor, in the same case, observed that Brown v. Yeall did not apply; for that was for a particular purpose; here, if a valid devise at all, it is for general purposes.
Lovat, for the Representatives of the deceased Trustee.
Mitford, for the Attorney-General.
The Master of the Rolls said: ‘I certainly did not conceive, that, in the case of Morice v. The Bishop of Durham (9 Ves. 399) it was merely by the addition of the word ‘liberality’ that the trust was rendered uncertain, and therefore incapable of being carried into execution. ‘Liberality’ is, no doubt, distinguishable from ‘Benevolence,’ but Benevolence is also distinguishable from ‘Charity.’ For although many charitable institutions are very properly called ‘Benevolent,’ it is impossible to say, that every object of a man’s benevolence is also an object of his charity. Nor do I see how the required concurrence of three persons in the selection of the objects does, by any necessity, exclude the appropriation of the property to purposes very different from any that are specified in the Statute of Queen Elizabeth (stat. 43 Eliz. c. 4), or that have been held to be within the analogies of that statute. In the case before referred to, it was attempted, in the argument on the appeal, to maintain that, although the bequest should be held to be void so far as it was made for purposes of ‘Liberality,’ yet it ought to be considered as good, in so far as it was for purposes of ‘ Benevolence ‘; which last word, it was said, was equivalent to ‘Charity.’ The Lord Chancellor does not say, that there could not be a proportional division, where a bequest was in part only for a charitable purpose, as in the Attorney-General v. Doyley (4 Vin. 485; 2 Eq. Ab. 194; 7 Ves. 58, note), but holds generally, that no charitable purpose was sufficiently expressed. In that case, as in this, the whole property might, consistently with the words of the will, have been applied to purposes strictly charitable.
But the question is, what authority would this Court have to say that the property must not be applied to purposes however so benevolent, unless they also come within the technical denomination of charitable purposes? If it might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute. I see no substantial difference between this case and the former, and therefore consider the point as already decided, though if it were still open, I should not entertain any doubt on the question.’
[1817] EngR 609, (1817) 3 Mer 17, (1817) 36 ER 7, [1817] EWHC Ch J89
Commonlii, Bailii
England and Wales

Updated: 24 June 2021; Ref: scu.333459

Lifely v Lifely: CA 30 Jul 2008

Unusually the court of appeal heard fresh oral evidence to assist in determing the appeal. Diaries had been discovered only after the trial, and the contents were of direct relevance. Ladd v Marshall might allow oral evidence on appeal in exceptional circumstances.
Lord Justice Ward, Lord Justice Sedley and Lord Justice Stanley Burnton
[2008] EWCA Civ 904, Times 27-Aug-2008
Bailii
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

These lists may be incomplete.
Updated: 22 June 2021; Ref: scu.271262

Williams v Arkle: HL 1875

The testator had a sister, a wife, and two illegitimate children. His appointed George Arkle (‘GA’), if GA should survive him, his executor and trustee, but if GA should die in his lifetime he appointed Benjamin Arkle (‘BA’). He then gave ‘the following legacies’: andpound;1000 each to GA and BA; andpound;2000 to a great nephew; andpound;100 to his wife, and andpound;100 apiece to his two children. After the gift of other legacies, he gave annuities to his wife and to his two children subject to restrictions as to anticipation, and an annuity to his sister Mary Williams. He then gave his freehold and leasehold property (specially described), ‘and all other my real estate and the residue of my personal estate’ (subject to two debts due to his sister) ‘unto the said GA for all my estate and interest therein respectively if he shall be alive at my decease, but if he shall die in my lifetime, then I give my said real estate and residuary personal estate unto BA for all my estate and interest therein respectively.’ He empowered his trustee to retain or change his investments, to be free from all responsibility on that account, to employ accountants and receivers, to be the guardian of his children during their minority, and he directed that the trustee should possess all powers granted to trustees by the 23 and 24 Vict. c. 145 (Lord Cranworth’s Act).
Held: (Lord Chelmsford dissenting) The gift of the real estate and of the residue of the personal estate (the former unaccompanied by any trust) was not affected by the other provisions of the will, and GA took them beneficially.
Lord Cairns LC restated the Appellant’s argument: ‘George Arkle, the Respondent, does not appear to be a relative of the testator. The residue is given, in case George Arkle dies in the lifetime of the testator, to Benjamin Arkle. The same George Arkle is made executor, and the same Benjamin Arkle appointed executor in case George shall die in the testator’s lifetime- George, and, in the event of his death, Benjamin is appointed not merely executor, but trustee of the will. George and Benjamin have, each, a legacy of andpound;1000. After the residuary clause there is a power authorizing the testator’s trustee to invest his personal estate on such securities as he shall think best, and to continue any investments subsisting at the testator’s death, and to employ such accountants and receivers as shall be necessary. The trustee is appointed guardian of the children, and it is declared that the trustee shall have, and may exercise, all or any powers and authorities given to trustees by the Act commonly called Lord Cranworth’s Act. These are the provisions in the will relied upon by the Appellant.’
He continued: ‘It is to be observed that none of these provisions refers to or touches the real estate, and, as I have already said, no trust has to be answered out of the devise of the real estate. As regards the personal estate, there are legacies given amounting to about andpound;5000, and annuities which would require the appropriation of something like andpound;10,000 more; and one of these annuities was for the separate use of a married woman. There were, therefore, trusts connected with the personal estate as to which the executors would be trustees, and as to which powers for investment would, and powers for employing clerks and accountants might, be necessary; but all these trusts and purposes connected with the personal estate would have to be satisfied before the residue could be ascertained, and it is the residue and not the universitas of the personal estate which is given to George Arkle.
But there are several other circumstances connected with the will which in my opinion strongly support the natural construction of the words as a beneficial gift to George Arkle. The testator had a wife and two illegitimate children, who at the date of the will were of the ages of twenty and sixteen, and for all of them he made specific provision by his will. His sister, the Appellant, was at the date of the will his heiress and sole next of kin, and the person to whom undisposed-of realty, and undisposed-of personalty, other than that which a widow would take, would result. It is true that, at her death, other persons might have become interested; but testators do not generally look beyond the state of their families at the time. It is difficult to reconcile the gifts to the sister and to the wife, both of them apparently intended for maintenance, with a right, reserved to them, to a large undisposed-of residue. Again, if the wife was to marry, or mortgage her annuity, it was to fall into the residue; but of the residue, according to the Appellant’s hypothesis, she would take one-half. Again, the real estate is apparently subject to a charge in favour of the testator’s sister. But if she were to take the estate as heiress-at-law under a resulting trust, a charge in her favour would be unmeaning. Lastly, there is a devise, to the trustee of the will, of trust and mortgage estates. But this also would be more consistent with a construction which gave the testator’s own real estate to George Arkle beneficially, than with one which would make the devise of all real estate to be a devise in trust.
My Lords, I have thus gone through the more minute details of this will for the purpose of pointing out that they appear to me to support the case of the Respondent rather than that of the Appellant; and as I think it cannot be shewn that the testator has used the words in the general gift to George Arkle, which I commenced by reading, otherwise than in their natural sense, according to which, I repeat, they import a beneficial gift, the case of the Appellant appears to me to fail, and the appeal, as I submit, and move your Lordships, ought to be dismissed, with costs.’
Lord Hatherley said: ‘Is he or is he not, intending by what he has done to give his property, both the realty and the residuary personal estate, after payment of debts and legacies, beneficially to the same person whom he has appointed as his executor and trustee? Now when a testator has provided, as the testator has done, most remarkably in this will, for his wife, for his sister (his presumptive heir-at-law), for his illegitimate children, and for his great nephew in Ireland, to whom he has given a considerable legacy, namely andpound;2000; when he has provided for all of them, what is there to make it improbable, or anything out of the ordinary course of a testator’s will, that this bequest, which undoubtedly was an absolute devise for these persons successively, not qua executors or trustees but nominatim, should be with the intention of leaving (as he does) the whole of his real estate beneficially, and the residue of his personal estate beneficially, to them after the payment of his debts and legacies? . .
My Lords, I fail to see in this case that any trust whatever is attached to that portion which is given to George Arkle. As in the legacy of andpound;1000 he is simply called George Arkle, and not executor or trustee, so in the gift of the real estate he is simply called George Arkle. The real estate is devised to him, and no trust whatever is imposed upon him as to that; and as to the only remaining portion of the gift, it is not a gift of the whole personalty, but a gift of the residue of the personalty after the trusts of the will have been satisfied. It appears to me, therefore, that no part of the property comes to him as George Arkle by virtue of the gift until all the trusts of the will are exhausted, there being no trust at all as to the real estate, and as to the personal estate only the payment of debts, leaving the whole of the remainder to come to him in his personal capacity.
But, my Lords, the difficulty is extreme, as it seems to me, of holding (for it comes back to that point) that the testator, who has so carefully provided in his will for those who would be entitled to his personal estate, namely, his widow and his sole next of kin, a testator who has carefully provided against any imprudence on the part of that widow and his daughter with reference to the annuities which he has given to them, and which are to fall into the residue in case of their attempting to alienate them, should proceed afterwards, having provided an annuity only during that time for his presumptive heir-at-law, his sister Mary Williams, who was at that time of the age of sixty-nine, the testator himself being of the age of seventy-four, to give to George Arkle the whole of his real estate without saying one word about trust for her or for anybody else, without any apparent object in creating a trust, inasmuch as (as I have said) he has not mistrusted her. Is it likely that, having a perfect confidence in her, he should give the property to George Arkle (referring expressly to a debt of andpound;2500 owing to his presumptive heir-at-law, and to another debt of andpound;500 to her, which he states to be in his hands) subject to this trust, whereas she being heir-at-law and presumptive heiress of the whole estate, there was no need whatever of mentioning any charge that she had upon it, because she would be mistress of the whole property?’
Lord Chelmsford dissented, saying of the will that ‘an air of trust pervades it throughout’.
Lord Cairns LC, Lord Hatherley, Lord Chelmsford
(1875) LR 7 HL 606
England and Wales
Cited by:
Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD 30-Jul-2014
The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.535825

Regina v Kelly; Regina v Lindsay: CACD 21 May 1998

Kelly was an artist allowed to draw anatomical specimens at the hospital, and Lindsay was a technician. They removed body parts from the hospital, and now appealed their convictions for theft.
Held: There is an exception to the traditional common law rule that ‘there is no property in a corpse’, namely, that once a human body or body part has undergone a process of skill by a person authorised to perform it, with the object of preserving for the purpose of medical or scientific examination or for the benefit of medical science, it becomes something quite different from an interred corpse. It thereby acquires a usefulness or value. It is capable of becoming property in the usual way, and can be stolen.’ The processes undertaken by a teaching hospital in which they preserved body parts created for them a sufficient proprietorial interest in the body parts to found a claim of theft against a defendant for removing them without their consent.
Rose LJ, Ognall J, Sullivan J
Times 21-May-1998, [1998] EWCA Crim 1578, [1997] 1 WLR 596, [1998] 3 All ER 741, [1999] QB 621, (2000) 51 BMLR 142
Bailii
Theft Act 1968 4 5
England and Wales
Cited by:
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.87047

Ex Parte Atkins In The Matter Of The London And Southampton Railway Act: 2 May 1837

A wife in extremis, and having just been delivered of a child, appointed by will real property to her husband, in fee. After her death, the husband gave his bond for securing 30001. to the infant ; which bond recited that he had upon the execution of the will given his wife an assurance that he would make provision for the child: Held, that the 30001. was a lien on the estate.
[1837] EngR 686, (1837) 2 Y and C Ex 536, (1837) 160 ER 509
Commonlii
England and Wales

Updated: 09 June 2021; Ref: scu.313803

Wrangle v Brunt and Another: ChD 6 Jul 2020

Challenge to purported wills as forgeries.
Held: Though the will was not executed as described in the attestation clause: ‘On the totality of the evidence before me, I am satisfied Dean understood and approved what was in the will when it was signed on his behalf by Howard Day.
In the circumstances, I will revoke the grant of letters of administration to Marlene and direct that the will executed in duplicate be pronounced for.’
Teverson M
[2020] EWHC 1784 (Ch)
Bailii
England and Wales
Citing:
Cited – Wilson v Lassman ChD 7-Mar-2017
Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and . .
Cited – Barrett v Bem and Others CA 31-Jan-2012
Under section 9(a) of the Wills Act 1937, as amended, the court should not find that a will has been signed by a third party at the direction of the testator unless there is a positive and discernible communication (which may be verbal or . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.652335

Hunter v Baxter Re W Freer’s Estate: 24 Jul 1861

Where a judgment has been recovered against executors for a debt due from their testator, and they paid the debt, the executors are entitled to be allowed such payment, although the Statute of Limitations might have been set up against the creditor who recovered the judgment.
[1861] EngR 837, (1861) 3 Giff 214, (1861) 66 ER 388
Commonlii
England and Wales

Updated: 02 June 2021; Ref: scu.284598

Re C (A Patient): ChD 1991

It may be likely that more than one kind of provision may be described as what the donor of the power of attorney ‘might be expected to provide’. ‘I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, says ‘might’ rather than ‘would be expected to provide’. In matters of detail there must be a range of choices which would be equally valid’.
References: [1991] 3 All ER 866
Judges: Hoffmann J
Statutes: Enduring Powers of Attorney Act 1985
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194468

Cooper v MacDonald: 1873

A testator by will gave a share in his residuary estate to his then unmarred daughter and later, under a marriage settlement to which he was party, gave two gifts, namely andpound;1,000 to the prospective husband for his own use and benefit and andpound;4,000 (which he covenanted would be paid within his lifetime or within 2 years after his death) to be held as to one moiety to pay the income to his daughter for her life and then to her husband for life and as to the other moiety to the husband for life and then to the daughter for life, with various remainders to their children, if any, and an ultimate remainder back to his own estate. There was no gift to the husband in the will which that inter vivos gift to him could adeem. ‘The Court has been in the habit of disregarding differences in the manner of settling gifts on a child or child’s family by different instruments which raise a question of ademption or satisfaction, when such differences appear to be in their nature consistent with a presumption that the one gift is meant to be substituted for the other’ ‘But I am not aware that this presumption has ever been held to arise (in the absence of express direction) when the persons taking under the several instruments are themselves altogether different’
References: (1873) LR 16 Eq 258
Judges: Lord Selbourne
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194492

In re Lacon: 1891

The doctrine of ademption serves to preserve equality between children. Bowen LJ said: ‘ . . it being the view of the law that equality is what the father, in dealing with his children, would in most cases presumably intend.’ and there may even be a presumption in favour of equality.
References: (1891) 2 Ch 48
Judges: Bowen LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Pym v Lockyer 1840
    It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: ‘in the case of a parent, a legacy to a child is presumed to be intended to be a portion . .’ The court queried the likelihood of an intention in a grandfather . .
    ((1840) 5 My and Cr 29, , [1841] EngR 340, (1840-1841) 5 My and Cr 29, (1841) 41 ER 283, , [1841] EngR 1054, (1841) 12 Sim 394, (1841) 59 ER 1183)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194485

In re Furness: 1901

A legacy may be adeemed as a portion ‘when a parent by will gives a legacy to a child . .’ It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift.
References: [1901] 2 Ch 346
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194482

Re Ashton: CA 1898

(Reversed)
References: [1898] 1 Ch 142
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

This case is cited by:

  • Appealed to – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194478

In re R (Enduring Powers of Attorney): ChD 1990

The claimant had worked for the deceased for many years. The deceased gave her nephew an enduring power of attorney which was in due course registered. The nephew dismissed the claimant. The claimant said he had worked for many years at a very low rate of pay on promises from the deceased that he would be rewarded in her will, and sought provision from the estate.
Held: There was no power for the court to give a direction to sastisfy a moral rather than a strictly legal duty. The claim failed.
References: [1990] 1 Ch 647, [1990] 2 WLR 1219
Judges: Vinelott J
Statutes: Enduring Powers of Attorney Act 1985 8(2)(b)(i)
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194467

Re Ware: 1926

No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such.
References: [1926] KIN 163
Jurisdiction: England and Wales
This case cites:

  • Cited – Re Ashton ChD 1897
    Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
    ([1897] 2 Ch 574)

This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194480

Re Ashton: ChD 1897

Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the mother of the child; but it appears to me that the burden of proving such to be the case lies on those who assert the fact so to be.’
References: [1897] 2 Ch 574
Judges: Stirling J
Jurisdiction: England and Wales
This case cites:

  • Appealed to – Re Ashton CA 1898
    (Reversed) . .
    ([1898] 1 Ch 142)

This case is cited by:

  • Appeal from – Re Ashton CA 1898
    (Reversed) . .
    ([1898] 1 Ch 142)
  • 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 . .
    (Gazette 21-Apr-99, Times 02-Apr-99, Gazette 28-Apr-99)
  • Cited – Re Ware 1926
    No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such. . .
    ([1926] KIN 163)
  • Cited – In Re Eardley 1920
    The court considered whether a gift might adeem a gift in a will by ‘by a father or a person in loco parentis’ but ‘the matter must be regarded from a wider point of view’. The rule against double portions is, in effect, no more than one way of . .
    ([1920] 1 Ch 397)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194477

Pankhurst v Howell: 1870

If both a gift by will to a donee and a later gift inter vivos by the testator to the same donee are a ‘pure bounty’, then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will be able to take both. In the absence of special considerations such gifts will be taken to be ‘pure bounty’ or ‘mere gifts’ and no ademption of the gift in the will will take place. A gift from parent to child may be assumed to be a portion. This is ‘. . in the natural [or) assumed relation of a parent to the legatee’.
References: (1870) LR 6 Ch App 136
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194470

In Re Shields: 1912

Warrington J said: ‘By ademption is meant 1 think in this context a transaction to which the donee as well as the donor is a party.’ Since the testator’s intention had not been communicated to the legatee in his lifetime there was no ademption.
References: [1912] 1 Ch 551
Judges: Warrington J
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194489