Category: Wills and Probate

Baker v Sutton: 7 May 1836

A bequest of the residue of personal estate for such religious and charitable institutions and purposes within the kingdom of England, as in the opinion of the testator’s trustees should be deemed fit and proper, is a good charitable bequest.
A bequest of money, directed to be laid out on mortgage security, at the highest
interest that could be legally and safely obtained for the same, held to be void
under the Mortmain Act.

Citations:

[1836] EngR 681, (1836) 1 Keen 224, (1836) 48 ER 292

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 17 September 2022; Ref: scu.315013

Graves v Graves: 4 May 1836

Testator directed all his debts, legacies and funeral expenses to be paid as soon as conveniently might be after his decease. Afterwards he devoted a particular estate to the payment of his debts, legacies and funeral expenses in aid of his personal estate, and devised the rest of his estates to his children in strict settlement.
Held: nevertheless, that all his real estates were charged with his debts.

Citations:

[1836] EngR 661, (1836) 8 Sim 43, (1836) 59 ER 18

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 17 September 2022; Ref: scu.314993

Surtees v Parkin: 10 Jul 1854

A testator bequeathed legacies to A., B. and C., payable out of his personal estate, and he devised his real estates, subject to the payment of his debts, to D. and E. The personal estate being exhausted in payment of debts, the legatees were held entitled, on the principle of marshalling, to have recourse, for payment, to the real estate, to the prejudice of the devisees.

Citations:

[1854] EngR 736, (1854) 19 Beav 406, (1854) 52 ER 407

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 16 September 2022; Ref: scu.293593

Murray v King’s Advocate: SCS 18 Feb 1502

A bastard leaving a wife, but no children, the King’s donatary has right to the whole heritage and heirship moveables; also to the half of the other moveables, under burden of the bastard’s debts, funeral expences, andc. The relict has right to the remainder of the moveables.

Citations:

[1502] Mor 1346

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 15 September 2022; Ref: scu.543968

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 will fails to carry out his intentions because of a failure by Mr Wood to understand his instructions, and that that failure led to the inclusion in the will of clause 3. It is also accepted that because the will in its present form was executed with the necessary degree of formality, it requires convincing evidence to make out such a case.’
Held: The heavy burden was satisfied on the evidence, and rectification was appropriate. The clause complained of was clearly part of another arrangement between the parties and had not been altered with the rest.

Judges:

Evans-Lombe J

Citations:

[2006] EWHC 1757 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Citing:

Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 14 September 2022; Ref: scu.243152

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 disputed whether the will have been validly executed, and in particular whether a rectification could be ordered under the 1982 Act where the original document did not itself meet the requirements of the 1837 Act.
Held: The wife’s appeal succeeded. A rectification could be and was ordered. The solicitor’s error in handing over the wrong will for execution was a ‘clerical error’ within section 20(1)(a).
‘save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared). ‘
As to wholesale rectification: ‘As a general proposition, there may be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification. However, I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’s power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled – and it would also lead to uncertainty. ‘
Lord Neuberger of Abbotsbury PSC said: ‘During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases . .
When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn, at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989 , per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.’

Judges:

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, UKSC 2012/0057

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Statutes:

Wills Act 1837 9, Administration of Justice Act 1982 2091)(a)

Jurisdiction:

England and Wales

Citing:

At First Instance – 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 – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Appeal from – 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 . .
Cited – Boyes v Cook CA 1880
When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
Cited – Arbuthnott v Fagan CA 30-Jul-1993
The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Harter v Harter 1873
. .
Cited – In the Goods of Oswald 17-Feb-1874
The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’ . .
Cited – In the Goods of Hunt 1875
Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would . .
Cited – In the Goods of Boehm 1891
It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the . .
Cited – Re Meyer 1908
Two sisters made mirror codicils to their wills but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her . .
Cited – In re Hawksley’s Settlement; Black v Tidy 1934
A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
Held: Neither feature was sufficient to effect a complete revocation . .
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 – In re Reynette-James dec’d, Wightman v ChD 1976
A court does not have power to rectify a will. . .
Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
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 – 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 – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Bell v Georgiou and Another ChD 28-May-2002
Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes . .

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 . .
Cited – Richards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Main Judgment – 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 . .
Cited – Guthrie v Morel and Others ChD 5-Nov-2015
The will had failed clearly to identify a property in Spain the subject of a bequest.
Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract

Updated: 13 September 2022; Ref: scu.520062

The Official Solicitor To The Senior Courts v Yemoh and Others: ChD 15 Dec 2010

The deceased had died intestate in 1985, and the administration concluded only lately by the Official Solicitor, who now sought guidance from the court on the administration of the estate, given that he had been party to eight customary polygamous (but lawful) marriages, with associated numbers of children.

Judges:

Elleray QC J

Citations:

[2010] EWHC 3727 (Ch)

Links:

Bailii

Statutes:

Judicial Trustee Act 1896, Administration of Estates Act 1925 46(1)

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 13 September 2022; Ref: scu.440435

Bodh v Boudh and Another: ChD 9 Oct 2006

The claimant sought an order that the will he produced was the proper last will of the deceased, and that the earlier grant in respect of another will should be revoked.
Held: ‘the burden of proof rests on [the proponent to establish both due execution and knowledge and approval. It is also common ground that, in the absence of suspicious circumstances surrounding the execution of a will, the court will assume that a will, appearing on its face to have been executed by a deceased in the presence of a minimum of two independent witnesses who have also signed the will as such, was properly entered into with the knowledge and approval of the deceased. ‘ The defendant said there was ample evidence to cast doubt on the later document. In fact the later document was probably valid, and the earlier will clearly a forgery. Order accordingly.

Judges:

Evans-Lombe J

Citations:

[2006] EWHC 2419 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 12 September 2022; Ref: scu.245214

Irani v Irani and others: ChD 24 Jul 2006

The deceased had effectively settled his divorce ancillary relief proceedings by promising to leave a property by will to to his former wife, the claimant. He signed a document which appeared to be intended to give effect to his undertaking, but the document was not executed as a will. The respondents said that the agreement did not satisfy s40.
Held: The document showed a desire to give effect to the transaction, and was effective. There had been a written offer with an oral acceptance, and ‘it is quite clear as a matter of law that, if an offer is made in writing and is accepted orally, that contract is in law a contract in writing and accordingly there can be no question of any unenforceability of the contract made in this case by reason of the absence of a necessary memorandum.’

Judges:

Lightman J

Citations:

[2006] EWHC 1811 (Ch)

Links:

Bailii

Statutes:

Law of Property act 1925 40

Jurisdiction:

England and Wales

Citing:

Cited – Tiverton Estates Ltd v Wearwell Ltd CA 1975
“Subject to Contract” not to be diluted
‘subject to contract’ proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract, Land

Updated: 12 September 2022; Ref: scu.243393

Westendorp and Another v Warwick: ChD 27 Apr 2006

Judges:

Hart J

Citations:

[2006] EWHC 915 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Wills and Probate

Updated: 11 September 2022; Ref: scu.242150

Special Case Hill: SCS 21 Dec 1872

A testator bequeathed the interest of pounds 6000 to his brother a until the youngest son of another brother should attain majority. A died, and was survived by a widow and an only son b, who died in pupilarity. Held, in a question between (1) b’s heir-at-law and executor-dative, and (2) his mother, that the accruing interest was part of the moveable estate of b, and that his mother was entitled to one-third of the interest.

Citations:

[1872] SLR 10 – 164

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 09 September 2022; Ref: scu.576399

Re K (Deceased): ChD 28 Mar 2007

The administrators of the deceased’s estate sought permission of the court to pay certain creditors and then to distribute the balance to the beneficiaries without reference to claims against the estate which they disputed.
Held: Whilst a court should be reluctant in a normal case to make such an order, in this case, each potential creditor would face the prima facie liability of having their cases struck out for want of prosecution. The court should see what other protection might be avaiable to creditors. The order was made.

Judges:

Richard Arnold QC

Citations:

[2007] EWHC 622 (Ch), Times 16-Apr-2007

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Yorke Deceased ChD 3-Sep-1997
The plaintiffs were executors of the deceased, a ‘name’ at Lloyd’s from 1983 until his death in 1991. The estate was reinsured with Equitas for every possible Lloyd’s risk to which it would or might otherwise be liable. Having settled the debts and . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 September 2022; Ref: scu.251167

Sohal v Sohal: CA 30 Jul 2002

It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf in Wood v Gahlings, the allegation of fraud ‘can be clearly established’ or if, in the words of Lord Phillips (which come to the same thing) the fresh evidence or its effect is not ‘hotly contested’. In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside.’ As to Hamilton, ‘Those observations must be accorded every respect. I do not think that they can have been intended to depart from what was said in paragraphs 8 and 14. Whether that be right or wrong, it is clear that each case must be judged on its own merits. If this court takes the view that the fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action.’

Judges:

Sir Martin Nourse

Citations:

[2002] EWCA Civ 1297

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .

Cited by:

Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Wills and Probate

Updated: 07 September 2022; Ref: scu.197975

Barraclough v Mell and others: ChD 1 Dec 2005

Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: The trustee exemption clause was effective to protect the executor as such. She had acted mistakenly and negligently, but honestly. However, in her additional capacity as an overpaid beneficiary, she was liable to repay the sums. Also the rule against double portions applied to require repayment by one recipient of a mispayment.

Citations:

[2005] EWHC B17 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Allcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – In re Pollock; Pollock v Worrall 1885
An example of a gift which is made under a special consideration is where the gift satisfies a particular moral duty identified in the will. . .
Cited – In re Vaux CA 1939
The term ‘portion’ has a ‘qualitative significance’ as well as purely quantitative significance. As to the doctrine of ademption: (Sir Wilfrid Greene MR) ‘The rule against double portions rests upon two hypotheses; first of all, that under the will . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 07 September 2022; Ref: scu.236337

Boswell and Others v Lawson and Others: CA 19 Apr 2011

The claimants sought rectification of the will, saying that it did not represent his testamentary wishes. A solicitor’s letter explaining the effect was mistaken. The judge had found the error to be in the letter, and not the wills.
Held: The appeal failed: ‘it seems to me that by some way the most probable reconciliation of the facts is that the wills did correctly reflect the instructions given by Mr and Mrs Appleby.’

Judges:

Jacob, Lloyd, Wilson LJJ

Citations:

[2011] EWCA Civ 452

Links:

Bailii

Statutes:

Administration of Justice Act 1982

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 September 2022; Ref: scu.432833

Upton v United Kingdom: ECHR 11 Apr 2006

Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, and Tim’s mother was the wife of the testator’s youngest son. She died not long after Tim was born, and he was then adopted by his father in 1955.

Judges:

J. Casadevall, P

Citations:

29800/04, [2006] ECHR 1203, 47 EHRR SE24, (2008) 47 EHRR SE24

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

At Admn – Upton v National Westminster Bank Plc and others CA 14-Nov-2005
The claimant said that he had been disinherited from his grandfather’s will being illegitimate. . .

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 . .
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.

Human Rights, Wills and Probate

Updated: 06 September 2022; Ref: scu.432711

Doe On The Joint And Several Demises Of Sir Richard Bassett, Knight, And Others, Against Anna Mew Doe On The Several Demises Of Edwards, Jelly, Robert Tucker And Others v Gunning And Another: 10 Jun 1837

Citations:

[1837] EngR 828, (1837) 7 Ad and E 240, (1837) 112 ER 462

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Landlord and Tenant

Updated: 06 September 2022; Ref: scu.313945

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

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

Citations:

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

Jurisdiction:

England and Wales

Trusts, Wills and Probate, Costs

Updated: 06 September 2022; Ref: scu.79774

Randall v Randall: ChD 30 Jul 2004

The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been a difficult and eccentric character. In this case the defendant had failed to rebut the evidential presumption of undue influence. Trust and confidence had been placed by the deceased in the defendant, and the transactions called for an explanation which was not given.

Judges:

Bartley Jones QC

Citations:

[2004] EWHC 2258 (Ch), [2005] WTLR 119

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Allcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Cited – Niersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
Cited – Zamet v Hyman CA 1961
In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .
Cited – Hammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – Langton v Langton and Another ChD 24-Feb-1995
The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence. . .
Cited – Inche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 06 September 2022; Ref: scu.226175

Marley and 11 Others v Mutual Security Merchant Bank and Trust Co Ltd Co: PC 15 Oct 1990

BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
Lord Oliver of Aylmerton said: ‘A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his position by seeking the guidance of the court.’
He also said: ‘The question whether the trustee has demonstrated that the contract submitted for approval is in the best interests of the beneficiaries reduces, in such a case as this, to whether the trustee can satisfy the court that it has taken all the necessary steps to obtain the best price that would be taken by a reasonably diligent professional trustee. The question may equally well be expressed as whether the trustee has shown that it has fully discharged its duty. That question may appear to be very similar to the question whether to enter into the contract without taking further steps and without seeking the directions of the court would justify an action by the beneficiaries for misconduct justifying the removal of the trustee. Nevertheless there is an essential distinction in that, in such an action, the beneficiaries would be required to assume the positive burden of demonstrating a breach of fiduciary duty. A failure to do so does not demonstrate the converse, namely that the transaction proposed, because not proved to be a breach of fiduciary duty, is therefore one which is in the interest of the beneficiaries’ . . and ‘In the Court of Appeal, Rowe P regarded it as doubtful whether the respondent, having entered into the conditional contract, could even investigate an alternative offer, but regarded that offer in any event as unworthy of serious consideration because the respondent had no knowledge of the financial stability of the proposed purchaser and because, in postponing conclusion of the conditional contract whilst the matter was investigated, the respondent risked losing the ‘bird in the hand’. . .
What the Court of Appeal appears to have overlooked entirely was that, having regard to the course which it was proposed to take as regards the obviously unsatisfactory features of the conditional contract – that is to say the treatment of moneys falling due to the estate up to the closing date and in the interest-free postponement of a substantial part of the consideration – the ‘bird in the hand’ argument ceased to have any validity at all, for the effect of the order proposed and finally made was that the respondent had, in any event, to reject the conditional contract as it stood and to negotiate fresh terms with the purchaser if it proved willing to consider them.’

Judges:

Lord Oliver of Aylmerton

Citations:

[1991] 3 All ER 198, [1990] UKPC 44

Links:

Bailii

Statutes:

Trustee Act 1956 66

Jurisdiction:

England and Wales

Cited by:

Cited – John Weth and Others v Her Majesty’s Attorney General and Others CA 23-Feb-2001
A charitable trust had been established. Protracted disputes had taken place, and the burden of the costs required to be apportioned. The financial practices of the charity had been informal leading to confusion, and dissension. An intervention by . .
Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .
See Also – Marley and Others v Mutual Security Merchant Bank and Trust Co Ltd Co PC 2-Feb-1995
(Jamaica) . .
Lists of cited by and citing cases may be incomplete.

Banking, Wills and Probate

Updated: 02 September 2022; Ref: scu.429845

Lim v Thompson: ChD 14 Oct 2009

The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One witness had now deposed that she had only added her signature after the date of the death, and the other witness had failed to attend. One version was a photocopoy of another.
Held: The circumstances were suspicious. The court considered whether a photocopied signature might satisfy the Act. Section 9 ‘section requires . . that the will should both be in writing and ‘signed by the testator’. That signature has to be made in the presence of two or more witnesses or acknowledged in the presence of those witnesses. In my judgment, a photocopy a previous version of the will with a photocopied signature of the testator is not a document which is signed by the testator at all.’ The circumstances were such as to disapply the presumption of due execution. The request to revoke the letters was refused.

Judges:

Purle QC J

Citations:

[2009] EWHC 3341 (Ch), [2010] WTLR 661

Links:

Bailii

Statutes:

Wills Act 1837 9

Jurisdiction:

England and Wales

Citing:

Cited – In the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – In Re Papillon (deceased) ChD 2006
Mr Guy Newey QC considered the presumption of due execution when propounding a will: ‘The burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the will . . In certain circumstances, however, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 September 2022; Ref: scu.384445

Elder’s Trustees v Elder: SCS 16 Mar 1895

Succession – Conditio si testator sine liberis decesserit – Trust – Settlement – Revocation of prior will – Presumption. – While the law presumes that a will which makes no provision for children nascituri is revoked on the subsequent birth of a child, there is no presumption that a prior will which has been expressly revoked by the later will is restored, although it contains provisions for children nascituri.

Citations:

[1895] ScotCS CSIH – 1, (1895) 2 SLT 579, (1895) 32 SLR 365, 32 SLR 365, (1895) 22 R 505

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 02 September 2022; Ref: scu.279244

Hope and Another v Knight: ChD 15 Dec 2010

The separated widow and the deceased’s daughter sought reasonable provision from the estate.

Judges:

Purle QC HHJ

Citations:

[2010] EWHC 3443 (Ch), [2011] WTLR 583

Links:

Bailii

Statutes:

Inheritance (Provisions for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 01 September 2022; Ref: scu.428424

In re Avard (dec’d): 1948

Citations:

[1948] Ch 43

Jurisdiction:

England and Wales

Cited by:

Wrongly decided – 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.

Wills and Probate

Updated: 01 September 2022; Ref: scu.179728

Dale v Banga and Others: CA 24 Feb 2021

‘what the appeal court should do when fresh evidence is adduced after a trial which allegedly shows that the judgment below was obtained by fraud, the conduct relied upon being that of a witness and of a party to the action which took place after the events in issue, and is unrelated to the issues which were before the court. In particular, it raises the following questions: whether the fresh evidence (permission to rely upon it having already been granted) is capable of establishing that the Respondents misled the judge at trial by asserting that a letter of revocation in relation to a will had been duly attested; if so, whether the question of whether the judge was misled (the fraud issue) should be referred to the lower court to be determined or should be the subject of a separate action; and, if it is determined that the lower court was misled by fraud, whether a previous will should be admitted to probate on the basis of the original judge’s obiter dicta.’

Judges:

Lady Justice Asplin

Citations:

[2021] EWCA Civ 240

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 01 September 2022; Ref: scu.658877

Barrass v Harding: CA 27 Jun 2000

Elizabeth Butler-Sloss

Judges:

Elizabeth Butler-Sloss D P, Thorpe LJ

Citations:

[2000] EWCA Civ 521, [2000] Fam Law 878, [2001] 1 FLR 138, [2000] WTLR 1071, [2001] 1 FCR 297

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants Act) 1975 2

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 31 August 2022; Ref: scu.428030

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 over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
There is no legal fetter to the general principle of testamentary freedom by which a person may leave his or her assets as he or she sees fit, whether such disposition be unexpected, inexplicable, unfair and even improper.
The grant of probate to the will had been revoked. The Society which was the residuary beneficiary of the will now appealed. The testatrix had been said to have been under the excessive influence of a domineering husband, and the gift had been contrary to her expressed views of the Society.
Lord Nueberger MR said: ‘Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs. ‘
and, of the proposition in In Re Fuld ‘when all is dark, it is dangerous for a court to claim that it can see the light.’, that ‘that observation applies with almost equal force when all is murky and uncertain.’

Judges:

Neuberger MR, Lloyd, Jackson LJJ

Citations:

[2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
Appeal from – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Fulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
Cited – Tyrrell v Painton CA 1894
The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin . .
Cited – Gregson v Taylor ChD 1917
Hill J said: ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’ . .
Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
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 – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – 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 by:

Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 28 August 2022; Ref: scu.427175

Fry v Densham-Smith: CA 10 Dec 2010

The parties disputed whether wills made were mutual.
Held: The Court upheld the finding of the judge at first instance that there was an oral agreement between two testators (Denny and Laura, each with a son from a previous marriage, Martin and Jonathan) for mutual wills, based on extrinsic evidence alone.
Mummery LJ (with whom Smith and Wilson LJJ agreed) said: ‘Direct evidence is not available on the two critical points in Martin’s claim: the existence of a mutual wills agreement between Denny and Laura and the execution of a will by Laura pursuant to it. No will, or copy will, or instructions for a will relied on as the mutual will made by Laura during Denny’s lifetime has been produced. There is no indication in Denny’s professionally drafted will or in the solicitor’s attendance note that it is a mutual will.
The deficiency of direct evidence and the piecemeal nature of the evidence relied on by the judge for his conclusion do not, in my view, defeat Martin’s claim or undermine the judgment. It is, of course, unfortunate that Denny’s personal and financial papers were unavailable as direct evidence. However, evidence can be evaluated by a court and facts can be perceived and proved by the process of drawing reasonable and probable inferences from other facts, such as primary facts specifically found, undisputed events and uncontroversial circumstances surrounding them. All of those matters may be safe points of departure for the judicial process of drawing inferences that can lead to an evidentially satisfactory conclusion.’
. . And ‘I think that the judge both made, and satisfactorily explained how he made, reasonable and proper inferences from the facts, events and circumstances summarised earlier in this judgment about what was probably agreed to be done and probably done by Denny and Laura about the disposition of their estates to each other and to their respective sons.
In his detailed critique of the evidence (and the lack of it) Mr Norris paints a picture of a sparsely documented case based on unreliable oral evidence about events of almost 25 years ago involving two principal parties now both dead. Retrospective critical analysis is, of course, a necessary part of the process of evaluating the evidence and deciding what has been proved on the balance of probabilities. The critical process should not, however, deflect the court from the incontrovertible fact that, at the heart of the case, there was a testamentary predicament which was more likely to have been addressed than ignored by this elderly couple, each with a son from a previous marriage with prospects of inheritance of their parent’s assets. The probabilities are that they discussed the situation and reached an agreement along the lines alleged by Martin for the re-ordering of their affairs following the marriage. To me the judge’s findings on what was probably agreed and done have the ring of truth. They are based on reliable and satisfactory evidence given by Martin, which the judge was entitled to accept, even though he did not accept other aspects of his evidence; on the timing and contents of Denny’s last will; on Mundays’ note of what they were told by Denny about Laura making a will on their marriage; and on Laura’s unsent letter and her telephone conversations with Martin.’

Judges:

Mummery, Smith, Wilson LJJ

Citations:

[2010] EWCA Civ 1410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .

Cited by:

Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 August 2022; Ref: scu.427000

Perrins v Holland and Others: CA 8 Dec 2010

The court heard an appeal as to costs.

Citations:

[2010] EWCA Civ 1398

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
See Also – Perrins v Holland and Others ChD 21-Oct-2009
. .
See Also – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 28 August 2022; Ref: scu.426904

O’Brien v Seagrave and Another: ChD 23 Mar 2007

The claimant had cohabited with the deceased. After his death, she applied for a grant of letters of administration in his estate, but this was rejected on the basis that she had no sufficient interest to make a claim to probate. The deceased had died but shortly after his divorce the defendants said that he had made a will, without a solicitor, leaving all to his step children through his former wife. The claimant said this was either fraud or undue influence.
Held: The appeal succeeded. The claimant’s right to make a claim under the 1975 Act gave her a sufficient interest. Under the Civil Procedure Rules as opposed to under the Probate jurisdiction, the answer would be clear.

Judges:

Mackie QC J

Citations:

[2007] EWHC 788 (Ch), Times 02-May-2007

Links:

Bailii

Statutes:

Civil Procedure Rules 57.7, Inheritance (Provision for Family and Dependants) Act 1975, Supreme Court Act 1981 121(1)

Jurisdiction:

England and Wales

Citing:

Cited – Kipping and Barlow v Ash 1845
. .
Cited – Hingeston v Tucker 1862
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 26 August 2022; Ref: scu.251168

Gray v Richards Butler (A Firm): ChD 24 Jun 1996

Solicitors were not entitled to payment of their costs in the administration of the estate after the will had been challenged.

Judges:

Lloyd J

Citations:

Gazette 02-Aug-1996, Times 23-Jul-1996

Jurisdiction:

England and Wales

Cited by:

Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions, Costs

Updated: 24 August 2022; Ref: scu.80995

H v Mitson and Others: FD 1 Dec 2009

Judges:

Eleanor King J

Citations:

[2010] 1 FLR 1613, [2009] EWHC 3114 (Fam)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

Cited by:

Appeal from – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of pounds 50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 August 2022; Ref: scu.421344

Re Endacott: CA 12 Oct 1959

The will had left the residue to a parish council for the purpose of providing some useful memorial to myself, subject to the proviso that if my wife outlives me they must during the lifetime of my wife pay to my wife the interest which may accrue on the capital when properly invested by them’. The gift was challenged as bad in law. The Council appealed saying that the purpose was the reason for the gift, not a trust affecting the gift.
Held: Non-charitable purpose trusts are anomalous.

Judges:

Lord Evershed MR, Sellers, Harman LJJ

Citations:

[1960] Ch 232, [1959] EWCA Civ 5, [1959] 3 All ER 562, [1959] 3 WLR 799

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Charity, Trusts, Wills and Probate

Updated: 20 August 2022; Ref: scu.245265

Re Seaford Dec’d: CA 1968

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

Judges:

Willmer LJ, Davies LJ

Citations:

[1968] P 53

Jurisdiction:

England and Wales

Cited by:

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

Family, Litigation Practice, Wills and Probate

Updated: 20 August 2022; Ref: scu.267521

Re Besterman, decd: CA 1984

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

Judges:

Oliver LJ

Citations:

[1984] Ch 458

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Approved – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
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 . .
Preferred – 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 . .
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.

Wills and Probate, Family

Updated: 19 August 2022; Ref: scu.196901

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 and Waite J which appears to give great prominence to the requirements of s 3(2) in a case of this kind. On the other side, Mr. Harrap referred us to a further passage in the judgment of Oliver LJ in Re Besterman deceased at p 469, which suggests that no greater prominence is required to be given to that consideration than to any of the others to which the court must have regard. It seems that Re Besterman deceased was not referred to in Moody v. Stevenson. In my view it is unnecessary for us to enter upon any possible conflict between those two decisions and I do not propose to do so.’

Judges:

Nourse LJ, McCowan LJ, Sir John Megaw

Citations:

[1992] 1 FLR 591

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – 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 – 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 . .

Cited by:

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

Family, Wills and Probate

Updated: 19 August 2022; Ref: scu.196903

Pudner and Another v Pudner: CA 27 Feb 2006

The parties challenged the validity of a will, and claimed the house by survivorship. The house had been conveyed into joint names, but the solicitors on registration had declared it a tenancy in common. This was said to have been a mistake.
Held: there had been no words of severance. The application failed.

Citations:

[2006] EWCA Civ 250

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Goodman v Gallant CA 30-Oct-1985
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance . .
Lists of cited by and citing cases may be incomplete.

Wills and probate, Trusts

Updated: 18 August 2022; Ref: scu.239182

Gavriel and Another v Davis: ChD 30 Aug 2019

‘This is perhaps, more than anything else, a claim that involves a cautionary tale where an executor takes a grant in respect of a will, which does not have a charging clause, without having obtained a clear agreement in writing from all the beneficiaries that reasonable or fixed charges can be made.’

Judges:

Chief Master Marsh

Citations:

[2019] EWHC 2446 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 18 August 2022; Ref: scu.641404

Falconar Stewart v Wilkies: SCS 16 Mar 1892

A person disponed heritable estate to persons in a certain order of succession ‘under this declaration, burden, and condition, that in the event of any part of the said lands and estate . . that may remain unsold at my death being thereafter sold or disposed of or excambed by any proprietor or possessor of the same, or adjudged or attempted to be adjudged or carried away in any manner of way for his or her debt, that then and in any of these events there shall be paid out of the price of the lands . . if and when sold, or created a real lien and burden upon the same if they shall remain unsold, to and in favour of such of the children of G. F. as may then be in existence, or to their heirs equally to and among them, the sum of pounds 10,000.’ . . One of the proprietors of the estate under this disposition gratuitously disponed it to a line of heirs so that shortly the estate would be given to a person not within the line originally pointed out.
Held that there was an obligation upon such person on succeeding to the estate to create a real burden over it for the sum of pounds 10,000 in favour of the children of G. F. or their heirs.

Judges:

Lord Kyllachy, Ordinary

Citations:

[1892] SLR 29 – 534

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 18 August 2022; Ref: scu.613479

Garland v Morris and Another: ChD 11 Jan 2007

The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. Michael Furness QC J said: ‘the most important factors are first the financial position of the claimant, living on a very low income in sub-standard housing. But bearing in mind that, particularly in relation to the house, she bares some responsibility for its defects. Second there is the close relationship which Mr Garland had with the second defendant. She is better off than the claimant but still in genuine need of the benefit which she was given under his will. Thirdly, there is the fact claimant never met or spoke to her father in the last fifteen years of his life and made no real effort to do so. Fourthly there is the fact that the claimant received all of her mothers estate and has owned her own home for the past 22 years.’

Judges:

Michael Furness QC J

Citations:

[2007] EWHC 2 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited – In re Dennis (Deceased) 1981
The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of . .
Cited – Espinosa v Bourke CA 1999
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
Cited – Williams v Johns 1988
. .
Cited – Gold v Curtis 2005
. .
Cited – In Re Abram 1996
. .
Cited – Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased) FD 2004
The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
Held: Munby J made an award under the Act to an adult child of the deceased, part of which . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Re Pearce (Deceased) CA 4-Nov-1998
An adult child succeeded in a claim under the Act against his father’s estate, having worked on his fathers farm for many years and for very low pay against a promise that he would inherit the house on the father’s death. . .
Cited – Cameron v Treasury Solicitor 1996
The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 August 2022; Ref: scu.408850