Category: Wills and Probate

Krubert, Re; Krubert v Davis and Others: CA 27 Jun 1996

The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on every application under it the court must ask itself two questions: first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive? Provision for deceased’s wife were to be read to follow the Act and not necessarily as would occur on a divorce.
As to the two cases of Besterman and Moody: ‘
There had been confusion arising from the conflict of approach taken in Re Bestermann and in Moody v Stevenson. The case of re Besterman was to be preferred. The Recorder had made an error of principle: ‘While I fully appreciate that the question what is reasonable provision is not to be determined exclusively by the financial needs of the applicant, especially when he or she is a surviving spouse, it is a consideration which must be taken into account. Looking at the matter in the round, I think that if the deceased had made reasonable provision for Mrs. Krubert out of his other resources, it would have been reasonable for him to have left his brother and sister the reversionary interest in the house; conversely, it would not have been unreasonable for him only to have left Mrs. Krubert a life interest in it. Accordingly, to award her an absolute interest in the house and all but andpound;14,000 of the other assets was in my judgment an error of principle on the recorder’s part . . Having considering the question afresh, I think there is indeed a conflict between the two decisions, if only one of emphasis. However conflict of emphasis can often cause problems at first instance for busy district and circuit judges. Moreover we have some anecdotal evidence that the approach adopted in Moody -v- Stevenson may indeed have caused confusion at that level, especially in the cases of small estates. I can understand that, if only because on a divorce there are two parties to be provided for, whereas on an application under the (inheritance legislation) there is only one. In my view Oliver LJ’s approach is preferable, being more in accordance with the intention of the Act when read as a whole. I think it should be adopted accordingly.’

Judges:

Nourse LJ, Cazalet J

Citations:

Gazette 17-Jul-1996, Times 16-Jul-1996, [1997] Ch 96, [1996] EWCA Civ 1346

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Davis v Davis CA 1993
The deceased had left his widow a life interest in his residuary estate, with power for his trustees to purchase a house for her occupation, which they had duly exercised. The essential question was whether, as the widow claimed, she should be . .
Cited – Re Bunning, deceased; Bunning v Salmon ChD 1984
Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be 36,000 pounds. Yet on an application under the 1975 Act he awarded her 60,000 pounds. . .
Preferred – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Not preferred – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Jessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
Cited – Re Inns, Inns v Wallace 1947
. .

Cited by:

Cited – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Cited – Barron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 31 October 2022; Ref: scu.372642

Ram and Another v Chauhan and Another: Misc 19 Jul 2017

Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence

Judges:

Saffmann HHJ

Citations:

[2017] EW Misc 12 (CC)

Links:

Bailii

Statutes:

Wills Act 1837 9

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited – Re Loxston, Abbot v Richardson ChD 4-May-2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
Cited – Edwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Cited – Hawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
Cited – Simon v Byford and Others CA 13-Mar-2014
The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Estoppel, Undue Influence

Updated: 28 October 2022; Ref: scu.590780

Schrader v Schrader: ChD 11 Mar 2013

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

Judges:

Mann J

Citations:

[2013] EWHC 466 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Re Loxston, Abbot v Richardson ChD 4-May-2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
Cited – Wharton v Bancroft and Others ChD 30-Jan-2012
The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting . .
Cited – Edwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 28 October 2022; Ref: scu.471578

In re P (Statutory Will): ChD 9 Feb 2009

A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring what the protected person would have decided if he or she had had capacity. Best interests was not a test of ‘substituted judgment’ (what the person would have wanted), but rather required a determination to be made by applying an objective test as to what would be in the protected person’s best interests. Having followed a structured decision-making process, the Court must then form a value judgement of its own, giving effect to the paramount statutory instruction that any decision must be made in the protected person’s best interests. A protected person’s expressed wishes should not be lightly overridden, since adult autonomy is an important part of the overall picture. But what will live on after the protected person’s death is his memory; and for many people it is in their best interests that they should be remembered with affection by their family, and as having done ‘the right thing’ by their will. The decision maker is entitled to take into account, in assessing what is in the protected person’s best interests, how he would be remembered after his death.

Judges:

Lewison J

Citations:

[2009] EWHC 163 (Ch), [2010] EWHC 1592 (COP), [2010] Ch 33, [2009] NPC 24, [2009] WTLR 651, [2009] LS Law Medical 264, [2009] 2 All ER 1198, [2010] 2 WLR 253

Links:

Bailii, Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

Approved – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
Cited – In Re D (Statutory Will); VAC v JAD and Others ChD 16-Aug-2010
The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because . .
Cited – NT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 27 October 2022; Ref: scu.281710

Mrs Jean Forbes, Wife of Captain Dundas, and Elizabeth Forbes, Wife of Dr John Gregory, and Both Daughters of The Late Lord Forbes v James, Lord Forbes: HL 29 Jan 1756

An antenuptial contract of marriage, in the shape of an entail, contained a reserved faculty and power to grant provisions to younger children on deathbed, and to affect the estate therewith. Held, reversing the judgment of the Court of Session, that bonds of provision granted on deathbed were not reducible on deathbed, they having been executed in exercise of the reserved faculty.

Citations:

[1756] UKHL 2 – Paton – 8

Links:

Bailii

Jurisdiction:

Scotland

Family, Wills and Probate

Updated: 26 October 2022; Ref: scu.558229

Dellal v Dellal and Others: FD 1 Apr 2015

The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim.

Judges:

Mostyn J

Citations:

[2015] EWHC 907 (Fam)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Kemmis v Kemmis (Welland and Others Intervening) CA 1988
H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
Held: The application . .
Cited – Morrow v Morrow 1995
While it may be uncommon, the fact that a claimant stands to inherit whatever may fall into the actual death estate does not preclude an order being made under sections 10 and 2 in her favour. . .
Cited – Hamlin v Hamlin CA 1986
A plaintiff under the 1975 Act must show as against each defendant that where that defendant is out of the jurisdiction that the order for payment would be enforceable in the foreign land. . .
Cited – AC v DC and Others (Financial Remedy: Effect of S37 Avoidance Order) (No 1) FD 19-Jul-2012
The effect of an order under section 37 is to annul or ‘avoid’ the transaction under attack. Moreover, the bad intention to defeat the principal ancillary relief claim is presumed for transactions done within the three year period before the . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Easyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
Cited – NLW v ARC FD 13-Jan-2012
The former wife sought leave to appeal against an ancillary relief order made by consent. The husband did not attend.
Held: The new rules intended to align family procedures with the CPR as applies for appeals to the Court of appeal. ‘The test . .
Cited – Wyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 26 October 2022; Ref: scu.545893

The Vegetarian Society and Another v Scott: ChD 7 Nov 2013

The deceased had left his residuary estate to the claimant charity. Family members now challenged the will for lack of capacity. Held The testator suffered mental disorder after a personal injury affected an underlying tendency to schizophrenia.

Judges:

Simon Barker QC

Citations:

[2013] EWHC 4097 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 October 2022; Ref: scu.519345

Birdseye and Another v Roythorne and Co and Others: ChD 15 Apr 2015

The claimant sought disclosure from the executors of various documents from the estate which might eb protected by privilege.
Held: Such a request must be supported by some evidence at least that the applicant might be a beneficiary.

Judges:

Newey J

Citations:

[2015] EWHC 1003 (Ch), [2015] WLR(D) 169

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Wills and Probate

Updated: 24 October 2022; Ref: scu.545432

Kaur v Dhaliwal and Another: ChD 17 Jun 2014

The court was asked whether the Claimant is a person to whom section 1(1A) of the 1975 Act applies, namely a person who ‘during the whole of the period of two years immediately before the date when the deceased died . . was living (a) in the same household as the deceased, and (b) as the . . wife of the deceased.’

Judges:

Mr Justice Barling

Citations:

[2014] EXHC 1991 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 23 October 2022; Ref: scu.527191

Campbell’s Trustees v Campbell: HL 30 Nov 1920

A testator directed his trustees in the event of there being any residue of his estate ‘to apply the same for behoof of such charitable or other deserving institutions in connection with the city of Glasgow as my said trustees shall think fit.’
Held (rev. judgment of the Second Division, diss. Lord Dundas) that the bequest was void from uncertainty.

Judges:

Lord Chancellor, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw

Citations:

[1920] UKHL 69

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate, Charity

Updated: 22 October 2022; Ref: scu.631546

Mackinnon’s Trustees v Inland Revenue: HL 16 Jul 1920

In 1893 a Scotsman, who had contracted dissipated habits, executed a voluntary deed of separation and, with his wife’s approval, went to Australia. He lived in Brisbane from 1899 till his death in 1918. In 1902 he contracted in that city a bigamous marriage. His wife continued to live in Scotland till the date of her death, September 1915. Held ( aff. judgment of the First Division) that as the husband had at the date of her death acquired a domicile in Australia the wife’s domicile was also in Australia.

Judges:

Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Shaw

Citations:

[1920] UKHL 535

Links:

Bailii

Jurisdiction:

Scotland

Family, Wills and Probate

Updated: 22 October 2022; Ref: scu.631543

Brown’s Trustees v Gregson: HL 6 May 1920

A testator domiciled in Scotland conveyed his estate to trustees in trust for his seven children equally, six of them to take in fee and the seventh, a daughter, in liferent, the fee going to her issue. The estate included immoveable property in Argentina, and the courts of that country declared the testator’s provisions with regard to it null and void as being contrary to the laws of that country. These laws prohibit any trust in heritable property. The seven children consequently took that property ab intestato, and the daughter further claimed her legitim. Her issue now claimed that the other six children of the testator could not take benefit under the settlement without bringing into account their shares of the Argentine property.
Held ( dis. Viscount Cave, rev. judgment of First Division) that the six children were not put to their election, on the ground, per Viscount Haldane, Viscount Finlay, and Lord Moulton, contra Viscount Cave, that they were unable, under the law of Argentina, to make their shares of the property in that country available to the trust; per Lord Dunedin, that what was proposed would not ‘give legal effect and operation to the will.’

Judges:

Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Moulton

Citations:

[1920] UKHL 391, 57 SLR 391

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 22 October 2022; Ref: scu.631522

Reed v Madon: ChD 1989

The existence of exclusive rights of burial gives the owner of a body a right which is to be equated with a right of property, interference with which is actionable
Morritt J described an exclusive right of burial arising under the 1847 Act as something to be equated with a right of property but found it unnecessary to decide whether it was an interest in land.

Judges:

Morritt J

Citations:

[1989] 2 All ER 431, [1989] Ch 408

Statutes:

Cemeteries Clauses Act 1847

Jurisdiction:

England and Wales

Cited by:

Cited – HM Coroner for the Eastern District of London, Regina (On the Application of) v Sutovic Admn 31-Jul-2009
The deceased had died in Serbia, but was buried in Acton. A second inquest had been ordered on the request of the respondent, and an exhumation licence granted for the purposes of a second post mortem examination. The respondent had refused her . .
Cited – Brookwood Park Ltd v Guney and Others ChD 29-Jul-2014
The parties disputed whether the defendants, trustees of a local charitable Turkish trust providing funeral service, had acquired an exclusive rights of burial within an area of the claimants’ cemetery.
Held: There were signficant deficiencies . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Land

Updated: 21 October 2022; Ref: scu.371290

Upwell v Halsey: 1720

One devises that such part of his personal estate as his wife should leave of her subsistence shall go to his sister ; devise over good.

Citations:

[1720] EngR 35, (1720) 1 P Wms 651, (1720) 24 ER 554

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 October 2022; Ref: scu.390461

Re Rapley, deceased: ChD 1983

The deceased was an apprentice with Ellerman City Lines. He was discharged from one ship on 7 October 1960 and joined another of his employer’s ships on 29 November. He attempted to make a privileged will on 22 October when, as was common ground at the trial, he had not yet been notified by the shipping company when and where he was to join his next ship.
Held: Judge Finlay QC distinguished earlier cases saying that the deceased was not ‘at sea’ on 22 October.

Judges:

Judge Finlay QC

Citations:

[1983] 1 WLR 1069

Jurisdiction:

England and Wales

Citing:

Cited – In the Goods of Wilson, Wilson v Coleclough ChD 1952
The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 October 2022; Ref: scu.375936

Gill v Woodall, Lonsdale and The Royal Society for the Prevention and Cruelty To Animals: ChD 22 May 2008

The daughter of the deceased challenged the will, saying that her mother had not known and approved the contents of her will which left the entire contents of her estate to charity.

Judges:

Norris J

Citations:

[2008] EWHC 1326 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 October 2022; Ref: scu.377222

Guest and Another v Guest: CA 17 Mar 2020

Judges:

Lord Justice Floyd

Citations:

[2020] EWCA Civ 387, [2020] WLR(D) 170, [2020] 2 P and CR 10, [2020] 1 WLR 3480, [2021] 1 All ER 503, 23 ITELR 532

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Guest v Guest SC 15-Dec-2020
. .
Appeal from – Guest and Another v Guest SC 19-Oct-2022
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 October 2022; Ref: scu.649117

Kenward v Adams: ChD 29 Nov 1975

The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed alterations should be discussed with the testator. It is prudent for legal advisors to seek the opinion of a medical practitioner (preferably one experienced in the field) and, if the practitioner is satisfied that the person does have the requisite capacity, he should act as one of the attesting witnesses.

Judges:

Templeman J

Citations:

Times 29-Nov-1975, [1975] CLY 3591

Jurisdiction:

England and Wales

Cited by:

Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Approved – Buckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 15 October 2022; Ref: scu.219627

Taylor v Graham: HL 12 Jul 1878

The residue of an estate was destined in equal shares to A, B, and C in liferent, and to their children in fee equally among them per stirpes. Failing issue of A or B the survivor was to liferent the predeceaser’s share, and failing issue of both, their two-third shares were to go to C and her children per stirpes as provided with respect to her own share of the estate. C predeceased A and B, who both died without issue. Held [ rev. judgment of Court of Session] that part of these shares had vested in a child of C who had died without issue before the date of the expiry of the liferent interest enjoyed by A and B.

Judges:

Lord Chancellor, Lord Hatherley, Lord Blackburn, and Lord Gordon

Citations:

[1878] UKHL 776, 15 SLR 776

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 08 October 2022; Ref: scu.646313

Willes v Greenhill: CA 16 Nov 1860

The testator had in 1830 backed a bill for his son Henry. It was dishonoured, and after the testator’s death in 1832 his executors met the liability. Henry had a one-sixth interest, subject to his mother’s life interest, in the residuary trust fund. Henry mortgaged this interest and the mortgage was transferred to Willes. The issue of priority in the distribution of Henry’s share arose on the widow’s death in 1849.
Held: The executors’ right to make an adjustment to indemnify themselves took priority to the rights of the mortgagee.

Judges:

Sir John Romilly MR

Citations:

[1860] EngR 1148, (1860) 29 Beav 376, (1860) 54 ER 673

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 October 2022; Ref: scu.285987

Saltmarsh v Barrett: CA 27 Apr 1861

A testator gave legacies of nineteen guineas to each of his executors, and he bequesthed his residue to the m ‘absolutely’, charged with certain legacies. He also charged them to deduct their costs, charges and expenses out of any part of his estate. Held, that the executors were trustees of the residue of the residue for the next of kin.

Judges:

Sir John Rommily MR, Knight Bruce LJ

Citations:

[1861] EngR 521, (1861) 29 Beav 474, (1861) 54 ER 711

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Saltmarsh v Barrett HL 13-Jul-1861
A testator after directing payment of his debts, funeral and testamentary expenses and legacies, bequeathed some legacies to charities, and gave to three persons legacies of nineteen guineas each, and appointed them executors. He then bequeathed . .
See Also – Saltmarsh v Barrett 9-Jun-1862
An executor, under a bona fide belief that on the true construction of the will they were entitled thereto, sold out stock, retained one-third and paid two-thirds to the co-executors. It having been declared in the suit that the next of kin were . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 October 2022; Ref: scu.284282

Vaughan v Foakes: 25 Feb 1836

A testatrix gave the residue of her property to A, and by a codicil, reciting that gift, and that, as life was uncertain, A might be removed before her, she in such case appointed B and C her residuary legatees. The testatrix made a second codicil, as follows:- ‘As the death of Mrs W (the mother of B and C) has taken place, and as her two children will ultimately become my residuary legatees, the andpound;15 she was to have I give to Mrs H’
Held: That A was entitled to the residue.

Citations:

[1836] EngR 453, (1836) 1 Keen 58, (1836) 48 ER 228

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 October 2022; Ref: scu.314785

Ibuna and Another v Arroyo and Another: ChD 2 Mar 2012

The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (‘Congressman Arroyo’) to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines.

Judges:

Peter Smith J

Citations:

[2012] EWHC 428 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 October 2022; Ref: scu.451849

In re Akerman: ChD 2 Jul 1891

The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich J restated the rule in Cherry v Boultbee: ‘A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee ‘a right to pay out of the fund in hand,’ rather than a set-off.’

Judges:

Kekewich J

Citations:

[1891] 3 Ch 212, [1891] UKLawRpCh 118

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Restated – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Wills and Probate

Updated: 04 October 2022; Ref: scu.416576

Philllips v Low: ChD 3 Nov 1891

There had been a conveyance of land with a house on it whose window looked onto other land of the vendor.
Held: There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of a testator’s property to different grantees the same salutary principle that governs the implication and acquisition of easements on the contemporaneous grants to different grantees of properties previously in the ownership of the grantor.

Judges:

Chitty J

Citations:

[1892] 1 Ch 47, [1891] UKLawRpCh 158

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Palmer v Fletcher KBD 1793
‘. . the lights are a necessary and essential part of the house’ . .

Cited by:

Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.

Land, Wills and Probate

Updated: 04 October 2022; Ref: scu.381285

Cherry v Boultbee: HL 22 Nov 1839

B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested in the same person, and therefore B’s executors remained liable to pay the income as set out in the will.

Judges:

Cottenham LC

Citations:

(1839) My and Cr 442, [1839] EngR 1099, (1839) 4 My and Cr 442, (1839) 41 ER 171

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal From – Cherry v Boultbee CA 6-Apr-1838
TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to . .

Cited by:

Cited – In re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
Explained – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Explained – In Re Peruvian Railway Construction Co Ltd 1915
William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
Held: In the distribution of the company’s surplus assets the liquidator could . .
Explained – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Considered – Mills and Others v HSBC Trustee (CI) Ltd and Others ChD 18-Dec-2009
. .
Restated – In re Akerman ChD 2-Jul-1891
The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich . .
Applied – In Re Rhodesia Goldfields Ltd ChD 1910
Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his . .
Applied – Picken v Lord Balfour of Burleigh CA 1945
The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
Held: The rule in Cherry v Boultbee . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency

Updated: 04 October 2022; Ref: scu.238732

Ghafoor and others v Cliff and others: ChD 11 Apr 2006

The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s estate had assets internationally and his affairs were complicated. The family were in disagreement. The grant had been obtained to anticipate a grant in Pakistan, and to prevent intermeddling in the unadministered estate.
Held: A grant ad colligenda bona is a limited grant of administration, enabling the grantee to safeguard the assets of the deceased within the jurisdiction of the court. It is a useful, sometimes vital, power enabling urgent steps to be taken at a time when it is not yet practicable to obtain a full grant of probate or administration. However the affidavit which was the basis of the application was seriously flawed, and made allegations which were now accepted to be unfounded. The application for the grant should have been made on notice. It was clearly a contentious application, where allegations of dishonesty were being made, and whch was not so urgent as to preclude notice. The practice books said that it should be made without notice, but there was no such requirement in the rules. In these circumstances also, the solicitors who made the application were not sufficiently independent. Though the defendants had agreed to the withdrawing of the grant, that was inevitable. It was right that the defendants should pay the costs, and not out of the estate, but that should not be on an indemnity basis. Despite the decision in D’Costa, probate registrars in their duties exercise judicial functions: ‘It is inimical to a judicial process that a party should engage in private communications with the person exercising the judicial function whether during the proceedings or at a later stage. ‘

Judges:

The Honourable Mr Justice David Richards

Citations:

[2006] EWHC 825 (Ch), [2006] 2 All ER 1079, [2006] 1 WLR 3020

Links:

Bailii

Statutes:

Non-Contentious Probate Rules 1987

Jurisdiction:

England and Wales

Citing:

Cited – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Cited – Shepherd v Wheeler ChD 2000
An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) and others CA 30-Nov-2001
. .
Cited – Simms and others v The Law Society CA 12-Jul-2005
The appellant challenged intervention proceedings brought against his solicitors practice by the respondent. Following disciplinary proceedings, the Society had obtained summary judgment rejecting the application, and awarding costs. The solicitor . .
Cited – D’Costa and Another, Regina (on the Application of) v Secretary of State for Constitutional Affairs and Another Admn 23-Feb-2006
The claimant sought a declaration that the District probate Registrars were judicial officers.
Held: They were not. . .

Cited by:

Cited – Chantrey Vellacott v The Convergence Group Plc and others ChD 31-Jul-2007
The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 04 October 2022; Ref: scu.241459

Marley v Rawlings and Another: CA 2 Feb 2012

Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of the document signed by her late husband, and now appealed against rejection of her claim, the judge finding that the document had not been intended to be his will.
Held: The appeal failed. The Will did not satisfy section 9(b) of the 1837 Act, and rectification was not available to correct it.

Judges:

Sir John Thomas

Citations:

[2012] 2 FLR 556, [2012] EWCA Civ 61, [2013] 2 WLR 205, [2013] Ch 271, [2012] WTLR 639, 14 ITELR 843, [2012] Fam Law 403, [2012] 4 All ER 630

Links:

Bailii

Statutes:

Wills Act 1837 3 9, Wills Act Amendment Act 1852, Administration of Justice Act 1982 20 21

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 by:

At CA – Marley v Rawlings and Another (2) SC 18-Sep-2014
The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
Held: The solicitors (or their insurers) who had made the . .
Appeal from – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 October 2022; Ref: scu.450549

Howard v Howard-Lawson Bt: CA 18 Jan 2012

The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my judgment inherently improbable given the antiquity of the Howard name. On this basis, there is no obligation to take up the name if an application for a Royal Licence is made but not granted within the year, and accordingly there is no ‘refusal’ or ‘neglect’ to take up the Howard name for the purposes of the forfeiture provision.’

Judges:

Arden, Black, Kitchin LJJ

Citations:

[2012] EWCA Civ 6

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bromley v Tyron 1952
Lord Simonds LC said: ‘Then it was said that even so the words are uncertain in content, for it is purely a question of degree what constitutes the ‘bulk’. I cannot accept this contention. I think that according to the ordinary use of language the . .
Cited – Howard’s Will Trusts, Leven and Bradley ChD 1961
It is undesirable that different judges of the same division should speak with different voices. A judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that . .
Cited – Grant v Grant 1870
Blackburn J said: ‘The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were . .
Cited – Re Neeld deceased, Carpenter v Inigo-Jones CA 1962
The court considerd the interpretation of a Names and Arms clause in a will under which the testator directed that any person becoming entitled to a particular gift under the will must: ‘take upon himself and use upon all occasions the surname of . .
Cited – Austen v Collins 1886
A condition in a will that a beneficary ‘take steps’ means that the heir must make every endeavour. . .
Cited – Re Hughes 1943
. .
Cited – Re Quinton Dick 1926
. .
Cited – Re Croxon 1904
A Royal Licence to take up a coat of arms specified by the testator could not be obtained because it could not be shown that the testator was entitled to those particular arms. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 October 2022; Ref: scu.450322

Hinton and Another v Leigh and Another: ChD 26 Oct 2009

The testator had made a will, agreed to be valid, but then purported to revoke it. A test at the time suggested he suffered moderate dementia.
Held: The revocation was invalid based on the medical evidence as to capacity. Whilst in the nursing home, the testator had completely changed his opinion on several family members and without apparent reason. There was however no evidence of undue influence or fraud.

Judges:

Kevin Prosser QC

Citations:

[2009] EWHC 2658 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kenwood v Adams 1975
Templeman J set down the ‘golden rule’ that a lawyer should ensure that in the case of any doubt, a will should be witnessed or approved by a medical practitioner who had satisfied himself of the testator’s capacity and understanding. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 October 2022; Ref: scu.377354

Heardson v Williamson: 17 Feb 1836

Where an estate is devised, without any limitation of the quantity of interest, to trustees in trust for a limited purpose, with remainder to persons to whom the beneficial interest is given, the legal estate given to the trustees will cease on the satisfaction of the limited purpose, and will vest in the persons beneficially entitled in remainder.

Citations:

[1836] EngR 431, (1836) 1 Keen 33, (1836) 48 ER 218

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Trusts

Updated: 01 October 2022; Ref: scu.314763

Clayton v Ramsden: HL 1943

A condition in the will was that the legatee, his daughter, should not marry a person ‘not of Jewish parentage and of the Jewish faith.’
Held: The condition was void for uncertainty. Lord Russell of Killowen said: ‘The courts have always insisted that conditions of defeasance, in order to be valid, should be so framed that the persons affected (or the court if they seek its guidance) can from the outset know with certainty the exact event on the happening of which their interests are to be divested.’
. . And ‘Must both parents be of the Jewish race, or would one alone, and which, suffice? I confess myself unable to find any context which provides an answer; but the answer may well be that, in the absence of a context to the contrary, the true construction is that both parents must be of the Jewish race. But at this point the real difficulty begins, viz., the question of degree. The testator has given no information or clue as to what percentage or proportion of Jewish blood in the husband will satisfy the requirement that he should be of Jewish parentage. The daughter could never, before marrying the man of her choice, be certain that he came up to the requisite standard of Jewish parentage, nor could a court enlighten her beforehand. The standard is unknown, and incapable of ascertainment. It is this uncertainty of degree which prevents the divesting event from being seen precisely and distinctly from the beginning, and which makes this condition void for uncertainty. The uncertainty attaching to the requirement of Jewis parentage avoids the whole condition subsequent, with the result that no defeasance takes place.’

Judges:

Lord Russell of Killowen

Citations:

[1943] AC 320, 112 LJCh 22, [1943] 1 All ER 16

Jurisdiction:

England and Wales

Citing:

Cited – Clavering v Ellison 1859
Any provision determining or divesting an estate held on trust ‘must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’ . .

Cited by:

Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 September 2022; Ref: scu.231642

Moore v Holdsworth and Others: ChD 12 Mar 2010

The claimant sought reasonable provision from the estate of her late husband. She suffered advanced multiple sclerosis, and the estate was relatively small, from which she was to receive pounds 40,000. She sought all of it.
Held: It would be wrong to grant the claimant the entire estate. She should be awarded a life interest in the property, and the right to reside in the house.

Judges:

Kitchin J

Citations:

[2010] EWHC 683 (Ch), [2010] 2 FLR 1501, [2010] WTLR 1213, [2010] Fam Law 701

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 September 2022; Ref: scu.406640

Parkinson v Fawdon: ChD 30 Jul 2009

The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be counted a clerical error allowing amendment.
Held: The intended reference had clearly been to a male member of the family and on the evidence it had intended to refer to the claimant.

Judges:

Norris J

Citations:

[2009] EWHC 1953 (Ch), [2010] WTLR 79, [2009] NPC 103

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Citing:

Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Cited – Greenough v Martin 1824
A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected . .
Cited – Re Ofner; Samuel v Ofner 1909
Amongst other legacies to various nieces and a nephew, the testator gave a legacy ‘to my grandnephew Robert Ofner’ of andpound;100 and to another ‘grandnephew Curt Ofner’ of andpound;100. However he had no such grandnephew or other relative of the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 27 September 2022; Ref: scu.368644

Hertsmere Primary Care Trust and others v the Estate of Rabindra-Anandh and Another: ChD 7 Mar 2005

The appellants contested an indemnity costs order made against them. The claimant had sought repayment from the estate of the deceased of repayment of fraudulent overclaims by deceased optician. An offer had been made to settle the action. The defendant described the Part 36 offer as ineffective, but refused to say how or why. The error was held to be a technicality, and costs awarded ignoring the error.
Held: Parties to litigation were required to assist the court in achieving the overriding objective. Active case management required the courts to encourage parties to co-operate in the conduct of proceedings. The defendants had been obliged to answer and assist the claimants, and their failure to do so could be taken into account on costs.

Judges:

Lightman J

Citations:

Times 25-Apr-2005, [2005] EWHC 320 (Ch), [2005] 3 All ER 274

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 27 September 2022; Ref: scu.223692

Oliver, Iliffe v Trafford and Another: ChD 19 Dec 2001

Major Stibbard had died appointing family members and a solicitor to act in his will. The family had become embroiled in bitter litigation. The defendants were appointed administrators with will annexed. As personal representatives of the last surviving trustee of the legal estate, the defendants had the power to appoint new trustees of the various trusts in the estate. Within a year of the grant these proceedings were issued, without any letter before action, claiming damages for delay.
Held: The rash and highly speculative action must fail. The claim was insufficiently particular, and had not been made out.

Judges:

The Hon Mr Justice Hart

Citations:

[2001] EWHC Ch 469

Links:

Bailii

Statutes:

Trustee Act 1925 18(2) 36(1)

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 September 2022; Ref: scu.167319

King Arthur Pendragon, Regina (on The Application of) v Ministry of Justice: Admn 23 Aug 2011

The claimant sought review of a licence granted by the respondent for the temporary exhumation of human remains from the historical site at Stonehenge. He said that desppite the terms of the order allowing the disinterment, the licensee had said that he did not wish the bodies to be returned but rather that they should be exhibited in a museum.
Held: Despite the admission by the licensee that that would be his preferred option, there was no evidenc brought by the claimant that the respondent had any intention to alter the terms of the licence. The request failed.

Judges:

Wyn Williams J

Citations:

[2011] EWHC 2607 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 20 September 2022; Ref: scu.445482

Falkiner and Another v The Commissioner of Stamp Duties: PC 7 Nov 1972

New South Wales – The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of ‘the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration Act 1898-1954 of the State of New South Wales’. There was a claim for death duties on the settled property, and one of the issues was whether the clause contained ‘a trust . . . to take effect after [the deceased person’s] death’ within section 102(2)(a) of the Stamp Duties Act 1920-1959.
Held: The next of kin were to be determined at the settlor’s death, not at the date of the settlement, and death duties were payable accordingly.

Judges:

Reid, Morris of Borth-y-Gest, Dilhorne, Simon of Glaisdale LL, Sir Richard Wild

Citations:

[1972] UKPC 21, [1973] AC 565, [1973] STC 85, [1973] 1 All ER 598, [1972] TR 297, [1973] 2 WLR 334

Links:

Bailii

Cited by:

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

Commonwealth, Wills and Probate, Trusts

Updated: 19 September 2022; Ref: scu.444438

The Commissioner of Stamp Duties v Bone and Others: PC 5 Apr 1976

(Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the debtor is extinguished because an executor cannot sue himself.

Judges:

Lord Wilberforce, Viscount Dilhorne, Lord Cross of Chelsea, Lord Fraser of Tullybelton, Lord Russell of Killowen

Citations:

[1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145

Links:

Bailii

Citing:

Cited – Sibthorp v Moxton 10-Nov-1747
A woman by will forgives a bond-debt to her son-in-law, and desires her executor to deliver up the bond to be cancelled ; this held not to be lapsed by his dying before the testatrix. . .
Cited – The Attorney General v John Hollingworth 30-May-1857
By agreemerit made in 1794, 80001. stock was transferred by O. to H, upon the terms that H should repay the money produced by the sale of it or replace the stock at the option of O, and in the mean time pay interest at the rate of 5 per cent., the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 19 September 2022; Ref: scu.444267