Category: Wills and Probate

Doe on the Demise of John Birtwhistle v Agnes Vardill: KBD 1835

Quaere, whether a child, born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland, (neither having in the meantime married any other person,) can take as heir lands of his father in England.

Citations:

[1835] EngR 75, (1835) 2 Cl and Fin 571, (1835) 6 ER 1270

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Land, Family

Updated: 16 August 2022; Ref: scu.315583

Wright v Doe Dem Sandford Tatham: KBD 13 Jun 1837

The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence.
Held: such letters were not admissible unless connected in evidence witb some act done by the testator.

Citations:

[1837] EngR 853, (1837) 7 Ad and E 313, (1837) 112 ER 488

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Wright v Doe Dem Tatham HL 22-May-1838
In an issue on the sanity of a testator, who made his will in 1825, the devisee offered in evidence the following letters of deceased persons, which were found open, and addressed to testator, with other papers bearing his indorsements, in a . .
See Also – George Wright v Sandford Tatham 7-Jun-1838
On a question of the competence of a party to make a will, letters written to that party by person since deceased, and found (many years after their date) among his papers, are not admissible in evidence without proof that he himself acted upon . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 16 August 2022; Ref: scu.313970

Evans v Westcombe; re Evans: ChD 10 Mar 1999

Where available, missing beneficiary insurance was the preferred way of dealing with the problem, rather than applications to the court for Benjamin or other similar orders. Insurance should be cheaper and more certain for the personal representatives. Where the cost of an application would be disproportionate, the cost of insurance may be paid out of the trust estate.

Judges:

Richard McCombe QC

Citations:

Gazette 10-Mar-1999, Gazette 17-Mar-1999, Times 10-Mar-1999, Gazette 10-Mar-1999, [1999] 2 All ER 777

Jurisdiction:

England and Wales

Cited by:

Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 August 2022; Ref: scu.80394

Hyett v Stanley and others: CA 20 Jun 2003

The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half share in the house during his life, and that she had accepted obligations to the bank on the strength of that promise. The executors contended that it has been intended only that she should acquire an interest which would persist during his lifetime.
Held: Mr Freeman and Miss Hyett rendered themselves jointly and severally liable to the Bank by the very transaction by which Miss Hyett acquired her beneficial interest, they could only reasonably have intended that they should each take a half share. A life insurance policy on joint lives was held for Mrs Hyett only to the extent required to repay the charge, but as to the rest for the executors.

Citations:

[2003] EWCA Civ 942, [2004] 1 FLR 394

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Smith v Clerical Medical and General Life Assurance Society CA 1993
. .

Cited by:

Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate, Land

Updated: 16 August 2022; Ref: scu.184606

In re Hallett’s Estate; Knatchbull v Hallett: CA 1880

Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust money. In the case of a mixed substitution the beneficiary is confined to a lien.

Judges:

Sir George Jessel MR

Citations:

(1880) 13 ChD 696

Jurisdiction:

England and Wales

Cited by:

Cited – Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
Cited – Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd CA 16-Jan-1976
The seller sold aluminium to the defendant, but included a clause under which they retained title in the materials sold, even if mixed in with manufactured goods, until they had been paid for the metal. The defendants appealed a finding that the . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Explained away – In re Tilley’s Will Trusts ChD 1967
The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property. . .
Disapproved – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 16 August 2022; Ref: scu.181238

Selkrig v Davis: 1814

Rules in Hotchpot

Citations:

(1814) 2 Rose 291

Jurisdiction:

England and Wales

Cited by:

Cited – Cleaver, Bodden v Delta American Reinsurance Company PC 1-Feb-2001
(Cayman Islands) In the course of trading the company had given security to carry on its insurance business. On its insolvency, the administrators required the creditor to bring into hotchpot credit received in a foreign jurisdiction. It was said . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 August 2022; Ref: scu.181830

Fuller v Strum: ChD 20 Dec 2000

Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that the will had been properly executed, but the claimant brought an expert handwriting witness to say that the signature was a forgery.
Held: The court was entitled to give precedence to the lay witnesses. A handwriting expert had a different status to a medical or other witness.

Judges:

Mr Jules Sher QC

Citations:

Gazette 08-Feb-2001, Times 14-Feb-2001, [2001] WTLR 677

Jurisdiction:

England and Wales

Citing:

Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Cited by:

Appeal from – 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 – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
At First Instance – Fuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
At first instance – Fuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 14 August 2022; Ref: scu.80708

Ghai, Regina (on The Application of) v Newcastle City Council and Others: CA 10 Feb 2010

The claimant appealed against a refusal of an order refusing him permission to use land for the purposes of an open air cremations, as required by his religion.
Held: His appeal succeeded. The 1902 Act should be interpreted generously in its reference to buildings.

Judges:

Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Moore-Bick and Lord Justice Etherton

Citations:

[2010] EWCA Civ 59, [2010] 7 EG 101, [2011] 1 QB 591, [2010] 3 WLR 737, [2010] PTSR 1003

Links:

Bailii

Statutes:

Cremation Act 1902, Cremation (England and Wales) Regulations 2008 (SI 2008 No 2841)

Jurisdiction:

England and Wales

Citing:

Cited – Ghai v Newcastle City Council Admn 8-May-2009
The claimant argued that the restrictions on open air cremations as required by his Hindu belief was unreasonable and infringed his human rights.
Held: The burning of a body otherwise than at a crematorium was a criminal offence. The claimant . .

Cited by:

Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Human Rights

Updated: 13 August 2022; Ref: scu.396710

Brauer v Germany: ECHR 28 Jan 2010

Just satisfaction – friendly settlement

Judges:

Peer Lorenzen, P

Citations:

3545/04, [2010] ECHR 74

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Citing:

See Also – Brauer v Germany ECHR 28-May-2009
The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .

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.

Human Rights, Wills and Probate

Updated: 13 August 2022; Ref: scu.396383

In re Abrahams: ChD 1908

A debt was owed by the beneficiary to the estate which was payable by way of future instalments which were not due.
Held: The debt did not entitle the executors to hold back distribution of the beneficiary’s share of the estate.

Judges:

Warrington J I

Citations:

[1908] 2 Ch 69

Jurisdiction:

England and Wales

Cited by:

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

Updated: 08 August 2022; Ref: scu.641435

In re Lysaght: CA 1898

The testator bequeathed certain shares and declared that they ‘shall carry the interest accruing thereon at my death.’
Held: But for this clause the Apportionment Act would have allowed the residuary legatees to take the benefit of the dividends up to the date of death. Lord Lindley MR said that the clause amounted to ‘a stipulation, within the meaning of section 7, that no apportionment shall take place.’

Judges:

Lord Lindley MR

Citations:

[1898] 1 Ch 115

Jurisdiction:

England and Wales

Cited by:

Cited – Tael One Partners Ltd v Morgan Stanley and Co International Plc SC 11-Mar-2015
This appeal raises a question of contractual interpretation. Its significance lies in the fact that the contractual condition in question forms part of the Loan Market Association standard terms and conditions for par trade transactions which are a . .
Cited – Hartley and Others v King Edward VI College SC 24-May-2017
The teacher appellants challenged the quantification of deductions from their salaries after engaging in lawful strike days.
Held: The appeal as allowed. The correct approach under section 2 to a case like this, where the contract is an annual . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 August 2022; Ref: scu.564965

Bell v Fothergill: 1870

The presumption that where a will is found after death with the deceased but in a mutilated condition, the will has been revoked, is a rebuttable one.

Citations:

[1870] 2 PD 148

Jurisdiction:

England and Wales

Wills and Probate

Updated: 07 August 2022; Ref: scu.424275

Tyrell v Painton: CA 1894

The proposed will had been made by the testatrix when ill. She had signed a first will two days earlier. Her doctor said she was exhausted and was drowsy and had complained to her. The treating doctor that she had been disturbed by the introduction of a strange young man to her room. The strange young man was an attesting witness to her alleged further will. The trial judge accepted the evidence of the attesting witnesses, one of whom was the son of the person who would take under the alleged will.
Held: It was not necessary to show that the will was the result of a fraudulent scheme on the part of the beneficiary or the attesting witnesses. It was enough that suspicion attached to the execution of the second will which was not removed. Davey LJ said that: ‘wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless that suspicion is removed.’

Judges:

Davey LJ, Tyrell LJ

Citations:

[1894] P 151

Jurisdiction:

England and Wales

Cited by:

Cited – Ark and Others v Kaur and Others ChD 17-Sep-2010
The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 August 2022; Ref: scu.424107

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 the andpound;500 after the decease of her mother), to TB for his life, without power of anticipation and free from his debts ; and after his decease to pay the principal to such persons as he should appoint, and in default of appointment to his executors and administrators, for his and their own use and benefit. TB died without having obtained his certificate, and without having attempted to make any appointment.
Held: The executors of the testatrix had no right to set off the debt due from TB to the testatrix against the legacies, but that the assignee of TB was entitled to so much of the legacies as the assets were sufficient to pay. A person who owes an estate money, that is, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim a share given to him out of that mass estate without first making the contribution that completes it.

Judges:

Lord Langdale MR

Citations:

[1838] EngR 541, (1838) 2 Keen 319, (1838) 48 ER 651 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal From – 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 – 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 . .
Cited – 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 . .
Cited – In re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
Applied – 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 . .
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, Trusts

Updated: 07 August 2022; Ref: scu.312547

Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis: CA 24 Oct 2003

Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate for solicitors to make a separate charge based on value, provided always that one remembers that the solicitor is entitled only to what is fair and reasonable remuneration, taking all relevant factors into account. ‘ There are significant differences in the circumstances in which charges are made for contentious and non-contentious business and the approach to such charges can properly differ even though similar factors apply. It can be of assistance to clients to budget, to substitute an element of a value charge for uncertainty deriving from purely time based costs. Any scale should be regressive. The ultimate safeguard remains the costs judge’s duty to allow only such costs as are fair and reasonable in all the circumstances.

Judges:

Lord Justice Mance Lord Justice Peter Gibson Lord Justice Longmore

Citations:

[2003] EWCA Civ 1476, Times 30-Oct-2003, [2003] NPC 126, [2004] 1 All ER 510, [2003] WTLR 1427, [2004] 1 Costs LR 66, [2004] 1 WLR 646

Links:

Bailii

Statutes:

Solicitors Act 1974 56, The Solicitors (Non-Contentious Business) Remuneration Order 1994

Jurisdiction:

England and Wales

Citing:

Cited – Property and Reversionary Investment Corporation Ltd v Secretary of State for the Environment 1975
In the context of a compulsory purchase of a central London building, the court commented on the various factors which the Order required to be taken into account. In relation to ‘the amount or value of any money or property involved’:- ‘This is an . .
Cited – Loveday v Renton (No 2) 1992
A brief fee might include work done during the course of a trial. The appropriateness of the approach and the need for elements to be calculated according to the value at stake and the hourly expense rate are to be calculated realistically. . .
Cited – Treasury Solicitor v Regester 1978
A challenge was made as to the legal costs on the grant of a lease of a valuable commercial property.
Held: In relation to the time spent on the business which was the third factor in the 1972 Order: ‘The magnetic attraction of factor (iii) as . .
Cited – Leopold Lazarus v Secretary of State for Trade and Industry 1976
The general principle governing the calculation of costs rates should allow for two elements, the value of the subject matter or amount at stake, and the expense of providing the service. . .
Cited – Maltby v D J Freeman 1978
The court laid down guidance for solicitors in charging in the administration of estates: ‘when one comes to translate value into terms of the legal bill, the approach involves two ingrained habits of legal thought. There is nothing strictly logical . .
Cited – Regina v Wilkinson 1980
The court was attracted by the Law Society’s submission that the general principles that costs should reflect the amount at stake and the expense of providing the service, should govern also court attendances during litigation. The court identified . .
Cited – In re Eastwood 1980
The court identified two elements to make up a solicitor’s hourly rate in contentious matters. The expense of time and a percentage mark up applied to take account of amongst other matters the amount of any money or property involved.
Held: . .
Cited – Finley v Glaxo Laboratories 1989
Hobhouse J said: ‘I would not lend support to the adoption of an unduly low hourly rate and then seeking to put it right by applying a higher uplift percentage. The right approach is that which I have emphasised, namely to adopt a realistic approach . .
Cited – Johnson v Reed Corrugated Cases Ltd 1992
The costs principles set out in the Masters’ Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all . .
Appeal from – Jemma Trust Company Ltd v Peter D’Arcy Liptrott Jo SCCO 12-Sep-2002
The applicant challenged a solicitor’s bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court’s task is to assess a sum which is fair and . .
See Also – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .

Cited by:

Appealed to – Jemma Trust Company Ltd v Peter D’Arcy Liptrott Jo SCCO 12-Sep-2002
The applicant challenged a solicitor’s bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court’s task is to assess a sum which is fair and . .
See Also – Jemma Trust Company Limited v Kippax Beaumont Lewis and others ChD 1-Apr-2004
. .
See Also – Jemma Trust Company Ltd v Kippax Beaumont Lewis and others CA 22-Nov-2004
The defendants asserted that they had executed a trust deed on the advice of senior counsel in conference. The judge said the notes of the meeting did not justify that conclusion. The firm sought permission to appeal.
Held: There was room for . .
See Also – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Wills and Probate

Updated: 06 August 2022; Ref: scu.187085

Hooper v Fynmores: ChD 21 Jun 2001

The elderly testator had wanted to make a new will which would have increased the claimant’s share of his estate by one eighth. The appointment to sign the will was cancelled when the solicitor was himself hospitalised, and the testator died before the second appointment. The solicitors appealed on the basis that the finding against them effectively imposed a higher duty to the beneficiary than would have been due to the testator.
Held: The appeal was dismissed. In undertaking to prepare a will, the solicitor entered into a special relationship with the beneficiaries, an incident of which was a duty to them to act with due expedition and care. The proposed appointment should not have been cancelled without enquiry as to the testator’s health and considering whether to send a substitute. It should not have been missed without the client’s consent.

Citations:

Gazette 21-Jun-2001, Times 19-Jul-2001

Jurisdiction:

England and Wales

Professional Negligence, Wills and Probate, Legal Professions

Updated: 06 August 2022; Ref: scu.81463

Jelley v Illife: CA 1981

The court referred to the case of In re Beaumont and continued: ‘In considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal illness.’ and ‘Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money’s worth towards the reasonable needs of the plaintiff on a settled basis or arrangement which either was still in force immediately before the deceased’s death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement.’ Griffiths LJ: ‘The words ‘immediately before the death of the deceased’ in section (1)(1)(e) cannot be construed literally as applying to the de facto situation at death, but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend, the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.’

Judges:

Stephenson LJ, Griffiths LJ

Citations:

[1981] Fam 128, [1981] 2 All ER 29

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1

Jurisdiction:

England and Wales

Citing:

Approved – In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd 1980
The words in the section ‘immediately before’ in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place . .

Cited by:

Cited – Gully v Dix; In re Dix deceased CA 21-Jan-2004
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm.
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 05 August 2022; Ref: scu.196713

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 jurisdiction to make an award arose.
Held: The court considered the application of section 3(2): ‘and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.’
Waite J said: ‘The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law.’ and ‘In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?’ If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?” and ‘The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce.’ In this case, the result was an order permitting him to continue to occupy the house.

Judges:

Mustill LJ and Waite J

Citations:

[1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-1991, Times 30-Jul-1991

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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 – In re Styler 1942
. .

Cited by:

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 – 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 . .
Not 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: 05 August 2022; Ref: scu.196902

Perrins v Holland and Others: ChD 21 Oct 2009

Judges:

Lewison J

Citations:

[2009] EWHC 2558 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Main judgment – 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 . .

Cited by:

Costs at First Instance – 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 – 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 . .
See Also – Perrins v Holland and Others CA 8-Dec-2010
The court heard an appeal as to costs. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 04 August 2022; Ref: scu.377217

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 a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. ‘In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation’ . . and ‘in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator’: Greenough v Martin (1824) 2 Add 239 at 243′.

Judges:

Hodson, Guest, Donovan, Wilerforce LL, Sir Alfred North

Citations:

[1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, [1967] UKPC 23

Links:

Bailii

Jurisdiction:

Australia

Citing:

Cited – Verge v Somerville PC 1924
On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
Held: Trusts for education and religion do . .
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 – Methuen v Methuen 23-Jun-1817
Sir John Nicholl said: ‘In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.’ . .
Approved – 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 by:

Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Cited – 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 . .
Cited – Lamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Charity, Wills and Probate

Updated: 04 August 2022; Ref: scu.374776

Bowsher v Watkins: CA 16 Feb 1830

Residuary legatees brought suit against the estate executors and a surviving partner of the testator for an account. It was argued that there were no special circumstances justifying the action by legatees.
Held: Collusion between the executor and the partner was not an essential condition of such a claim.

Judges:

Sir John Leach MR

Citations:

[1830] EngR 401, (1830) 1 Russ and My 277, (1830) 39 ER 107

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 August 2022; Ref: scu.321281

Jemma Trust Company Ltd v Peter D’Arcy Liptrott Jo: SCCO 12 Sep 2002

The applicant challenged a solicitor’s bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court’s task is to assess a sum which is fair and reasonable.
Held: A rate above that generally charged by solicitors in the geographic area was justified where the practitioner was highly experienced and specialist. The claimant argued that a value element should no longer be paid. In view of the omnipresence of computer time recording systems, it is now wrong to charge on both a value element and a time element.

Judges:

Master Rodgers, Costs Judge

Citations:

[2002] EWHC 9008 (Costs)

Links:

Bailii

Statutes:

Solicitors (Non Contentious Business) Remuneration Order 1994 3

Jurisdiction:

England and Wales

Citing:

Cited – Jones and Another v Secretary of State for Wales and Another QBD 3-Dec-1996
Specialist provincial solicitors’ firm’s hourly cost rates were not limited by local average rates. . .
Appealed to – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .

Cited by:

Appeal from – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs, Legal Professions

Updated: 03 August 2022; Ref: scu.175484

Mack v Lockwood and Others: ChD 19 Jun 2009

The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his wife’s attack on him and to overreact.
Held: ‘it is not helpful to attach to these tragic events the labels used in the criminal courts to describe full or partial defences to murder. However, if this was not murder, an ordinary member of the public would no doubt regard what Mr Mack did as being so close to it as to make no difference in terms of his culpability. ‘ The murder was brutal, and it was not a case where the application of the rule would either confer an undeserved benefit to a third party, or leave the claimant in poverty. The application was refused.

Judges:

Geraldine Andrews QC J

Citations:

[2009] EWHC 1524 (Ch)

Links:

Bailii

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Land v Land; In re Land, deceased ChD 13-Jul-2006
The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – In Re K (Deceased) CA 1986
The wife who had been subjected to years of abuse shot her violent husband dead in the course of an argument, when a loaded shotgun she had picked up and pointed at him as a threat to deter him from offering her further violence went off . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 03 August 2022; Ref: scu.347453

Willers v Joyce and Others: ChD 8 Aug 2019

Claim for malicious prosecution and abuse of process

Judges:

Rose DBE LJ

Citations:

[2019] EWHC 2183 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 03 August 2022; Ref: scu.640894

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 court must decide what is objectively in the patient’s best interests, and not what the patient might have chosen themselves. The Act sets out the steps and considerations to be followed and these must be applied. Having applied that stuctured approach, the court must then check subjectively whether overall the result was in the patient’s best interests. The significance of the several elements will differ from case to case, but the Act gives none precedence. The views and wishes of the patient are included in the list, but have no priority over other considerations, and again the significance will reflect that particular case.
In this case a will signed by the patient, but not witnessed was helpful, but not of ‘magnetic’ importance.
Orders accordingly.

Judges:

Behrens J

Citations:

[2013] EWHC 684 (COP), [2013] EWCOP 684

Links:

Bailii, Bailii

Statutes:

Mental Capacity Act 2005 1(5) 4(2) 4(6) 4(7) 16 18(1)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – 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 – Re G(TJ) 2011
Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift . .
Cited – Re J(C) CoP 2012
Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 31 July 2022; Ref: scu.472017

Brauer v Germany: ECHR 28 May 2009

The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a marriage, but excluded children born before 1 July 1949, and had thus reached the age of majority as it came into force.
Held: The discriminatory provision was incompatible with the Convention. The aim of the legislation, distinguishing between children born before July 1949 and those born later, may have been legitimate, and the court even recognised the political and other difficulties which would have been involved if the distinction had been removed. However, this was not enough: ‘The Court considers, in particular, that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, the aspect of protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage.’
The Court then considered whether the means were proportionate, saying: ‘As to whether the means employed were proportionate to the aim pursued, a further three considerations appear decisive to the Court in the present case. First, the applicant’s father had recognized her after her birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German states. He had neither a wife nor any direct descendants, but simply heirs of the third order whom he apparently did not know. The aspect of protecting these distant relatives’ ‘legitimate expectations’ cannot therefore come into play’.
The other two considerations were specific to German legislation in the context of the reunification, and they do not assist in the present case.

Judges:

Peer Lorenzen, P

Citations:

3545/04 (Translation), [2009] ECHR 795

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

See Also – Brauer v Germany ECHR 28-Jan-2010
Just satisfaction – friendly settlement . .
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: 26 July 2022; Ref: scu.346628

Regina v Feist: 1858

A master of a workhouse may have legal possssion of a body before burial, and therefore a duty to provide for its burial.

Citations:

[1858] D and B 590

Jurisdiction:

England and Wales

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 July 2022; Ref: scu.195010

Regina v Kelly: 1999

Robbers who stole and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. The court considered the issue of ownership of a corpse: ‘We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights.’ However parts of a corpse are capable of being property: ‘To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority [1997] 1WLR 596, 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose.’

Judges:

Rose LJ

Citations:

[1999] 2 QB 621

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Sharpe CCCR 1857
The defendant was charged not with theft of a corpse, but of its removal from a grave: ‘Our law recognises no property in a corpse, and the protection of the grave at common law as contradistinguished from ecclesiastic protection to consecrated . .

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 July 2022; Ref: scu.195005

In Re the Estate of B (Deceased): ChD 26 Jan 1999

A dependency of a mother on her disabled daughter was not established by the making of payments by Court of Protection out of the estate during her life for the upkeep etc of a house for the mother and daughter, though mother indirectly benefited.

Citations:

Times 26-Jan-1999, Gazette 17-Feb-1999

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 July 2022; Ref: scu.82237

In Re the Estate of John Watson (Deceased): ChD 31 Dec 1998

Couples live together as men and wives, in many and various ways, and assessments of relationships should be seen, for the purposes of the Act, from the point of view of a reasonable man, but within that variety. The test as to whether the couple were living in the same household as husband or wife of the deceased is an objective one.

Judges:

Neuberger J

Citations:

Times 31-Dec-1998, Gazette 27-Jan-1999, Gazette 13-Jan-1999, [1999] 1 FLR 878

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 July 2022; Ref: scu.82238

Re Flynn Deceased: ChD 1982

An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval.
Held: There was no prior authority supporting the case that delay in institution might warrant the striking out of a probate claim. The issues fell to be decided by reference to the facts alleged in the pleadings. Slade J said: ‘The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.’ and ‘After an action of this nature has been started, he submitted, the court is under a duty to investigate the propriety or otherwise of the order under which the relevant grant was obtained, no matter how extreme the delay. The court, in his submission, is sitting as a court of conscience concerned with the sanctity of probate, so that it must allow the validity of the grant of probate to be investigated at whatever date the challenge may be made, unless there are other grounds, apart from questions of delay, upon which it is obvious that the action must, in due course, fail.’

Judges:

Slade J

Citations:

[1982] 1 WLR 310

Jurisdiction:

England and Wales

Citing:

Applied – 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 by:

Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 July 2022; Ref: scu.434919

Mausner and Another v Mincher and Another: ChD 26 Apr 2006

Citations:

[2006] EWHC 1283 (Ch)

Links:

Bailii

Citing:

Cited – Re Moss, Larke v Nugus CA 1979
Executors To Give Information Avoiding Expense
(Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 July 2022; Ref: scu.341765

Olins v Walters: ChD 19 Dec 2007

A claim was made for the proof of a will and of a codicil as a mutual will.
Norris J said of one witness: ‘I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document one or two decades ago) but upon a reconstruction of what she would have done having regard to her inability to recollect the Deceased’s attendance at Battersea and her willingness to do whatever Mr Walters requested. I am also alert to the danger that recollection can be coloured by the context in which it is invited.’

Judges:

Norris J

Citations:

[2007] EWHC 3060 (Ch), [2008] WTLR 339

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – 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: 24 July 2022; Ref: scu.341757

Stephen Lazar And His Wife Thamar Lazar v Colla Ragava Chitty: 3 Dec 1838

(India) Legacy of 12,000 star pagodas reserved by a Testator from his estate, and devised in favour of his Great-grand-daughter, having, in pursuance of the directions contained in the Will been put in strict settlement by the Executors, and subsequently secured by a mortgage of the real estate of the Testator to the Trustee of the settlement: held to be an equitable charge upon the whole of the real estate of the Testator, and there being no evidence of the payment off of such charge, the sale of a portion by the Sheriff of Madras, can under a writ of execution, declared to be invalid.

Citations:

[1838] EngR 1035, (1838) 2 Moo Ind App 84, (1838) 18 ER 233, [1838] UKPC 21

Links:

Commonlii, Bailii

Wills and Probate

Updated: 23 July 2022; Ref: scu.313041

Ilott v Genge: PC 21 Feb 1844

(Prerogative Court of Canterbury) The mere circumstance of the deceased having called in two witnesses ‘to sign a paper for him,” (which they did in his presence,) but without any explanation of the nature of the instrument being made to them, or the witnesses being able to see if any signature or writing was upon it when they attested it : Held by the Judicial Committee of the Privy Council, affirming the judgment of the Prerogative Court not to amount to an acknowledgment of the signature by the deceased, so as to satisfy the provisions of 1 Tic., c. 26, see. 9, and Probate refused to such paper.

Citations:

[1844] EngR 282, (1844) 4 Moo PC 265, (1844) 13 ER 304, [1844] UKPC 8

Links:

Commonlii, Bailii

Wills and Probate

Updated: 23 July 2022; Ref: scu.304874

Cosnahan v Grice: PC 12 Jul 1862

Isle of Man – The Board emphasised the burden of proof in claims to have received a donatio mortis causa: ‘Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these death bed donations, that there is always danger of having an entirely fabricated case set up. And, without any imputation a fraudulent contrivance, it is so easy to mistake the meaning of a person languishing in a mortal illness, and, by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail, unless it is supported by evidence of the clearest and most unequivocal character.’

Citations:

[1862] EngR 910, (1862) 15 Moo PC 215, (1862) 15 ER 476, [1862] UKPC 12

Links:

Commonlii, Bailii

Cited by:

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

Wills and Probate, Commonwealth

Updated: 23 July 2022; Ref: scu.287076

CI v NS: FD 19 Mar 2004

The executor sought to appeal an order made on behalf of a residuary beneficiary that he produce accounts in an estate. The order had been made in his absence, and with a costs order.
Held: To avoid a breach of natural justice, time should be extended to allow an appeal.

Judges:

Baron DBE J

Citations:

[2004] EWHC 659 (Fam)

Links:

Bailii

Statutes:

Administration of Estates Act 1925 25

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 23 July 2022; Ref: scu.195133

Regina v Investor’s Compensation Scheme, ex Parte Bowden: QBD 17 Feb 1993

The Investors’ Compensation Scheme must exercise discretion in quantifying a claim. An investor’s right to make a claim under the scheme survives his death and passes to his personal representative.

Citations:

Independent 17-Feb-1993, Gazette 07-Apr-1993

Statutes:

Financial Services Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another CA 30-Jun-1994
The Scheme must award compensation in accordance with accepted methods of calculating damages. It had no authority to limit payment of legal fees of applicants to andpound;500.00. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Financial Services

Updated: 23 July 2022; Ref: scu.86956

Cowan v Foreman and Others: CA 30 Jul 2019

The Court considered the circumstances in which it is appropriate to grant permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’) to allow an application for an order under section 2 of the 1975 Act to be made out of time.

Citations:

[2019] EWCA Civ 1336

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 4

Jurisdiction:

England and Wales

Wills and Probate

Updated: 23 July 2022; Ref: scu.640095

Ross’s Judicial Factor v Martin: HL 4 Mar 1955

Appeal against an interlocutor recalling an interlocutor pronounced by the then Lord President giving the appellants certain legacies under the wills of each of two sisters, and the effect of its recall was to allow the estates of the two sisters to fall into intestacy. The wills of two unmarried sisters were identical but not mutual, each leaving her entire estate to the to her other sister and her only brother equally and the survivor of them. The brother had died before them, and the sisters died in a common accident. Each provided that, in the event of both her sister and brother predeceasing her, John Melville Clark, W.S., was to be appointed her trustee and executor for the purposes enumerated in her will. These purposes included the payment of certain bequests to the appellants. The appellants are the surviving legatees under the wills of each of the said sisters, each of whom bequeathed the same pecuniary legacies to the same legatees, and each of whom named the same residuary legatees for the same share of residue.
Held: The authorities set down only that: ‘. If one can find in the remainder of the document words which could give a secondary meaning to the critical clause, then it is possible to adopt that secondary meaning. If there is no such guidance, then one must give effect to clear words. In my view, ‘predecease’ means ‘die in the lifetime of’

Judges:

Lord Kilmuir LC

Citations:

1955 SLT 117, [1955] UKHL 6, 1955 SC (HL) 56

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 22 July 2022; Ref: scu.279714

Drummond’s Judicial Factor v LA: SCS 9 May 1944

There is no presumption as to survivorship in a common calamity

Judges:

Lord Justice Clerk Cooper

Citations:

[1944] ScotCS CSIH – 1

Links:

Bailii

Citing:

Cited – Wing v Angrave, Tulley, And Others 29-Feb-1860
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to . .
Lists of cited by and citing cases may be incomplete.

Scotland, Wills and Probate

Updated: 22 July 2022; Ref: scu.279390

Jemma Trust Company Limited v Kippax Beaumont Lewis and others: ChD 1 Apr 2004

Judges:

Mr Justice Evans-Lombe

Citations:

[2004] EWHC 703 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .

Cited by:

Appeal from – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence

Updated: 21 July 2022; Ref: scu.195028

In Re K, decd: ChD 2 Jan 1985

A wife had pleaded guilty to the manslaughter of her husband, though she had been subject to long term abuse by him.
Held: Relief was granted to the wife under s.2(2) of the 1982 Act. The forfeiture rule for suicide operates to sever any joint tenancy on the death. The rule applied in a case where death was not brought about intentionally, but was the unfortunate consequence of deliberate threats of violence with a loaded gun: ‘the court cannot go further and evaluate the degree of moral culpability to be attributed to her conduct in order to say whether the forfeiture rule applies or not.’ The court ordered a modification of the provision.

Judges:

Vinelott J

Citations:

[1985] Ch 85, [1985] 1 All ER 403, [1985] 2 WLR 262

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Re Royse (Deceased) CA 1985
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime, Land

Updated: 21 July 2022; Ref: scu.185182

In Re the Estate of Ronald Ernest Chittock (Deceased); Chittock v Stevens and Others: ChD 5 Apr 2000

A widow had thought that she was to receive the bulk of her husband’s estate by survivorship, but discovered, only out of time and after the six months limit, that this was not the case. She applied for leave to apply out of time to rectify the will, saying that the revocation of the necessary provision was an error.
Held: The application should be decided on similar principles to applications for an extension of time under the Inheritance etc Act. The failure to proceed arose from a fundamental mistake as to the value of the estate. The beneficiaries had operated under the same misapprehension, and had not therefore acted to their detriment because of the delay. Leave was given.

Judges:

David Donaldson QC

Citations:

Times 05-Apr-2000, (2000) 1 WTLR 643

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Administration of Justice Act 1975 4

Jurisdiction:

England and Wales

Citing:

Distinguished – Escritt v Escritt 1981
. .
Cited – In re Salmon (Deceased) 1981
The time limit under the 1975 Act is ‘a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 21 July 2022; Ref: scu.82244

Mrs Mearns and Mrs Grant (Both Farquharsons, and Their Husbands) v James Farquharson, Esq, and Others, Trustees of James Farquharson of Inverey, Deceased, for Behoof of Alexander Farquharson: HL 20 Feb 1759

Destination – General Clause – Settlement. –
A party executed a general conveyance of all lands and heritages that should happen to belong to him at his death. The estate of Auchlossen belonged to him at the time he executed this settlement. He afterwards succeeded to the estates of Inverey and Tulloch, which had belonged to his brother, and the question was, Whether the heirs whatsoever under the above settlement, had a right to the Inverey and Tulloch estates. Held that they had not. Affirmed.

Citations:

[1759] UKHL 6 – Paton – 724

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 21 July 2022; Ref: scu.558276

M’Caig v University of Glasgow: SCS 18 Dec 1906

The heir in heritage of the late Mr M’Caig of Oban seeks to establish her rights as such, notwithstanding the fact that he has made a testament in favour of trustees, and has directed them to hold his estate and to apply the proceeds in doing certain things on the estate. She does not impugn the deed on the ground of mental incapacity. She attacks it on the ground that it does not give any disposal of the estate for the benefit of any person or class of persons, and is in no better position to exclude her than if it had simply disinherited her without putting anyone in her place, which it is plain would not have invalidated her right as heir.

Judges:

Lord Stormonth-Darling

Citations:

[1906] ScotCS CSIH – 2, 1907 SC 231, (1906) 14 SLT 600

Links:

Bailii

Scotland, Wills and Probate

Updated: 21 July 2022; Ref: scu.279270

Sammut and others v Manzi and others: PC 4 Dec 2008

(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic evidence in order to show that words used had a special meaning to the testator, but it has not been suggested that this is such a case.
Extrinsic evidence of the testator’s intention may also be admissible to resolve uncertainty or ambiguity . .
There were placed before their Lordships no less than 17 decided cases, some of which involved decisions on wording that bore some similarity with that used in the present case. Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction.’

Judges:

Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2008] UKPC 58, [2009] 1 WLR 1834, [2009] 2 All ER 234

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 21 July 2022; Ref: scu.279093

Sprackling and others v Sprackling and Another: ChD 6 Nov 2008

Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage.
Held: Some rectifications were agreed. However, as to the rest, the sons had overstated the deceased’s concerns about the businesses, and the business position could not support their arguments for further rectification.

Judges:

Norris J

Citations:

[2008] EWHC 2696 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20(1)

Jurisdiction:

England and Wales

Citing:

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 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

Updated: 19 July 2022; Ref: scu.277569

Warner v Verfides: ChD 29 Oct 2008

The deceased bankrupt’s Autralian trustees sought disclosure of documents recording his dealings in the UK. Third party Swiss lawyers now sought to intervene to say that such disclosure would breach the confidence of many of their clients. Redactions were agreed, and the court now looked to the costs.
Held: The interveners’ human rights had been engaged by the request. The court considered the technical meaning of correspondence within article 8, saying ‘To construe the term as applying only to letters still in the possession of the writer or in the process of transmission to the intended recipient appears unduly restrictive. In ordinary parlance, the term would be expected to apply to exchanges of letters in whosever hands they happened to be. ‘ and the interveners’ Article 8 rights are engaged by an application for production of documents in the hands of Verfides that were generated in the course of, or otherwise relate to, the interveners’ business activities. After initial doubts, the interveners had conducted their objections properly. Trustees and interveners were to bear their own costs.

Judges:

John Martin, QC

Citations:

[2008] EWHC 2609 (Ch)

Links:

Bailii, Times

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Wills and Probate, Insolvency, Costs, Human Rights

Updated: 19 July 2022; Ref: scu.277551

Re Baronetcy of Pringle of Stichill: PC 20 Jun 2016

Her Majesty requires the Board to advise as to (i) who is now entitled to be entered on the Official Roll of the Baronetage as the Baronet of Pringle of Stichill and (ii) whether the evidence resulting from the obtaining of a DNA sample from Sir Steuart Robert Pringle in late 2009 or early 2010 should be admitted in order to determine the first question.

Judges:

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke,Lord Reed, Lord Hughes, Lord Hodge

Citations:

[2016] UKPC 16, [2016] WLR(D) 314, 2016 SLT 723, 2016 GWD 20-360, [2016] WTLR 1117, [2016] 1 WLR 2870, [2017] 1 All ER 106

Links:

Bailii

Statutes:

Judicial Committee Act 1833 4

Jurisdiction:

Scotland

Wills and Probate

Updated: 19 July 2022; Ref: scu.565714

Re G(TJ): 2011

Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift and/or the terms of the will are not being made by P but by the court. Furthermore, insofar as there is a dispute between family members, the unsuccessful members are not likely to think that he had done the right thing.

Judges:

Morgan J

Citations:

[2011] WTLR 231

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

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: 19 July 2022; Ref: scu.510002

Couwenbergh v Valkova: ChD 16 Oct 2008

Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted.

Judges:

Blackburne J

Citations:

[2008] EWHC 2451 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .
See Also – 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 by:

Cited – Ahluwalia v Singh and Others ChD 6-Sep-2011
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 July 2022; Ref: scu.276958

Van Kwawagen v Royal National Lifeboat Institution and Another: ChD 9 Jun 2008

The charities said that the deceased had left a will making gifts to them. The family said there was no will. A will had been executed, and was said by some witnesses to have been found after the death, and one witness remembered the family member asking if the will could be ignored. It was not subsequently produced for probate.
Held: It was implausible to say that the witnesses had not seen the will, and the reconstituted will was admitted to probate.

Judges:

Sarah Asplin QC

Citations:

[2008] EWHC 2246 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 July 2022; Ref: scu.276670

Weir v Crum-Brown: HL 6 Feb 1908

If a bequest in a will to a class of persons is capable of application by the trustees, or failing them, the court, the gift is not void for uncertainty. Lord Macnaghten said: ‘The testator has taken pains to provide competent judges. It is for the trustees to consider and determine the value of the service on which a candidate may rest his claim to participate in the testator’s bounty.’

Judges:

Lord Loreburn LC, Lord Macnaghten

Citations:

[1908] AC 162, [1908] UKHL 2, 1908 SC (HL) 3, (1908) 15 SLT 857

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Guild v Inland Revenue Commissioners HL 6-May-1992
The will left land for a sports centre to a local authority which no longer existed. If the gift was charitable, the gift would be applied cy pres, but if not it would fail and pass to the family and be subect to Inheritance Tax.
Held: A gift . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 July 2022; Ref: scu.273195

In Re Hughes Deceased: ChD 8 Jan 1999

The deceased had made a will providing for her daughter and charities. She became ill, and lost capacity, and then her daughter died. Her son applied for a statutory will. This was ordered and prepared, but she died before the court could confirm that it could be sealed. The son applied for an order allowing it still to be sealed.
Held: The will could still be sealed, and admitted to probate. Section 97 laid down no formal requirement that a statutory will need be sealed while the testator was alive, and explicitly disapplied section 9 of the 1837 Act. The sealing was, under the Rules, only a part of the process of evidencing the will. The role and function of the Court at this point was ministerial, confirming that the order had been given effect properly.

Judges:

Weeks QC J

Citations:

Times 08-Jan-1999

Statutes:

Mental Health Act 1983 97(1)(c), Wills Act 1837 9, Court of Protection Rules 1994 93

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 July 2022; Ref: scu.81942

Edmunds v Armstrong Funeral Home Ltd: 1931

(Canada – Court of Appeal of the Alberta Supreme Court) A widower claimed damages for the unlawful carrying out of an autopsy on the body of the claimant’s deceased wife. The claim was dismissed by the judge at first instance on the ground that it disclosed no cause of action.
Held: The Court allowed the appeal: ‘If then, as seems clearly established, the plaintiff had the right to the custody and control of the remains of his deceased wife any unauthorised interference with that right, such as is alleged, was an invasion of his right and would give a cause of action.’

Judges:

Harvey CJA

Citations:

[1931] DLR 676

Jurisdiction:

Canada

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 18 July 2022; Ref: scu.195015

Hughes v Robertson: 1930

The widow sought damages for an unauthorised autopsy carried out upon the body of her late husband.

Citations:

[1930] SC 394

Jurisdiction:

Scotland

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 July 2022; Ref: scu.195014

Clarke v London General Omnibus Co Ltd: 1906

The parent of an infant child who dies where the parent has the means to do so, has a responsibility to arrange and pay for the burial.

Citations:

[1906] 2 KB 648

Jurisdiction:

England and Wales

Citing:

Approved – Regina v Vann 1851
A parent of a child who had not the means of providing for the burial of the body of his deceased child was not liable to be indicted for the misdemeanour of not providing for its burial, even though a nuisance was occasioned by the body remaining . .

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 July 2022; Ref: scu.195008