Category: Wills and Probate

In Re Estate of Monica Dale Dec, Proctor v Dale: ChD 11 Feb 1993

The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her will, but was under a binding trust to deal with the assets subject to the mutuality trust in accordance with that trust. With the rules on mutual wills, the element of mutuality operates to extend the enforceability to allow others beyond the couple making the wills to enforce the gifts agreed to be made. The aim of the principle was to prevent one party who transferred assets relying upon the mutuality of the wills to protect them, from being defrauded. The doctrine did not depend upon the second testator having received a benefit under the first will. To be enforceable there had to be a legally binding contract to make and not to revoke wills and one testator had had to have died having performed his or her part of that bargain.

Judges:

Morritt J

Citations:

Gazette 07-Apr-1993, Times 16-Feb-1993, Independent 14-Apr-1993, [1993] 4 All ER 129

Jurisdiction:

England and Wales

Citing:

Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 July 2022; Ref: scu.81867

Briscoe v Green: ChD 13 Jul 2006

Citations:

[2006] EWHC 2116 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Green v Briscoe 9-May-2005
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 July 2022; Ref: scu.263672

Re Philipson-Stow: HL 1961

The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of which it passes, is the law neither of England nor of Scotland.’ Issues relating to a disposition of movables must be determined according to the law of the country of domicile of the deceased at the date of his death. The proper law ‘regulating’ a disposition of immovable property for the purposes of section 28(2) was the lex situs.
Lord Denning confirmed that the question of interpretation depends upon the intention of the testator: ‘We are dealing with a will: and, whilst I would agree that the construction of a will depends on the intention of the testator, I would say that in no other respect does his intention determine the law applicable to it.
Let me take first the case where there is a disposition of movable property by will. There is no doubt that the proper law regulating the disposition of movables is the law of the domicile of the testator at the time of his death. In the leading case on this subject Lord Carnworth used the word ‘regulate’ in this very connection. When a person dies domiciled abroad, he said, ‘in every case the succession to personal property will be regulated not according to the law of this country but to that of his domicile’: see Enohin v Wylie. There is perhaps an exception in regard to the construction of his will: for if a question arises as to the interpretation of the will and it should appear that the testator has changed his domicile between making his will and his death, his will may fall to be construed according to the law of his domicile at the time he made it: though in all other respects it would be governed by the law of his domicile at the date of his death.’

Judges:

Lord Reid, Lord Denning

Citations:

[1961] AC 727

Statutes:

Finance Act 1949 28(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Re Levick ChD 1963
The proper law ‘regulating’ the disposition of movable property for the purposes of section 28(2) was the law of the testator’s domicile at the time of his death. Plowman J said that the term ‘regulate’ was concerned with the material or essential . .
Cited – Dellar v Zivy and others ChD 9-Oct-2007
Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court had . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Inheritance Tax

Updated: 17 July 2022; Ref: scu.259864

Wicks v Russell and Another: ChD 7 Nov 2008

A challenge was made to the appointment of a receiver in the administration of the deceased’s insolvent estate.

Judges:

Purle QC J

Citations:

[2008] EWHC 2713 (Ch), [2009] BPIR 194

Links:

Bailii

Statutes:

Administration of Insolvent Estates of Deceased Persons Order 1986

Jurisdiction:

England and Wales

Insolvency, Wills and Probate

Updated: 17 July 2022; Ref: scu.278311

Shadwell v Shadwell and Another: CCP 11 Jan 1860

Citations:

[1860] EWHC CP J88, (1860) 9 CBNS 159, [1860] 142 ER 62

Links:

Bailii

Citing:

See Also – Shadwell v Shadwell And Another 1858
. .
Cited – Eastwood v Kenyon 1840
eastwood_kenyon1840
Defendant may shew, under non assumpsit, that the promise was within stat. 29 Car. 2, c. 3, 8, 4, and was not in writing. Section 4 of that statute, as to promises to pay the debt of another, contemplates only promises made to the person to whom . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Contract

Updated: 17 July 2022; Ref: scu.270753

Borrows v HM Coroner for Preston: QBD 15 May 2008

The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral.

Judges:

Cranston J

Citations:

[2008] EWHC 1387 (QB), [2008] EWHC 1387 (Admin), [2008] Fam Law 984, [2008] 2 FLR 1225

Links:

Bailii

Statutes:

Cremation Regulations 1930 8

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate, Human Rights, Coroners

Updated: 17 July 2022; Ref: scu.270485

Re Levick: ChD 1963

The proper law ‘regulating’ the disposition of movable property for the purposes of section 28(2) was the law of the testator’s domicile at the time of his death. Plowman J said that the term ‘regulate’ was concerned with the material or essential validity of a will, rather than with its interpretation: ‘In the case of immovables it is lex situs (as the House of Lords held) and in the case of movables it is, in my judgment, the lex domicilii, from which the validity of the disposition stems. As Mr Foster conceded, if the law of South Africa had forbidden the disposition with which I am concerned, it could not have taken effect.’

Judges:

Plowman J

Citations:

[1963] 1 WLR 31

Statutes:

Finance Act 1949 28(2)

Jurisdiction:

England and Wales

Citing:

Cited – Re Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .

Cited by:

Cited – Dellar v Zivy and others ChD 9-Oct-2007
Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Inheritance Tax

Updated: 15 July 2022; Ref: scu.259865

Brooke v Garrod: 1857

The testator directed his trustees to offer all his real estate to his brother at the price of pounds 2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, at the expiration of two months from the time of signifying his intention, pay the price, then the testator directed his trustees to sell the premises by public auction or private contract, and directed his trustees to stand possessed of the sale price upon trusts for the benefit of another brother and his sisters. The brother signified his intention within the relevant time to buy the property, but failed to pay the purchase price, when his solicitor was not provided with an abstract of title.
Sir William Page Wood V-C said that the right of pre-emption was a privilege, and the conditions were conditions with which the brother was obliged to comply strictly, and the case was analogous to a case between vendor and purchaser where time was of the essence. Having signified his intention to purchase the property, it became his duty to pay the purchase money, and he was not justified in waiting for an entire abstract of title. It was said that the position might have been different if there had been fraud or laches.
On appeal, Lord Cranworth LC agreed: ‘It is said, that although he did not pay within the time, he did what ought to be considered as equivalent to payment, or ought to exonerate him from any charge of neglect. Now, I have more than once had occasion to say that I think this Court has gone to too great an extent in departing from the precise terms of the contracts into which parties have entered, and so in effect making other contracts for them . . No authority has, however, been produced in which this court has varied the terms of a gift under which a benefit is to be taken. The rule there is (cujus est dare ejus est disponere (and if the donor choose to say that in the event of a person paying 2,500l. on or before a specified day the gift shall take effect, I do not see how the court, if the money is not paid on or before the day, can take anything as an equivalent for the payment at the prescribed time.’

Judges:

Lord Cranworth LC, Sir William Page Wood V-C

Citations:

(1857) 3 K and J 608, (1857) 2 De G and J 62, [1857] EngR 4 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
See Also – Brooke v Garrod 20-Jul-1857
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 July 2022; Ref: scu.179727

Re Berens: ChD 1926

A clause requiring assumption of arms which will not be exemplified and recorded by the College of Arms is void for impossibility. Performance of the condition in the will was ‘impossible of fulfilment’ because the arms in question had already been granted to another and it was therefore held not to be binding on the beneficiary.

Citations:

[1926] Ch 596

Jurisdiction:

England and Wales

Wills and Probate

Updated: 14 July 2022; Ref: scu.639676

In Re Quinton Dick (orse Quintin Dick), Concurry (Lord) v Fenton: 1926

T died in 1858, and by his will devised his estates on strict successive trusts, directing beneficiaries to take the surname and arms of Dick. Should a beneficiary fail to comply within three months, the bequest should fail for that person and pass to the next as if that person was deceased. After one tenant died without issue, it took a year to discover the next heir in Canada.
Held: The beneficiary had no knowledge of the bequest or its terms, and could not therefore be said to have neglected or refused to comply with its conditions. The terms were not equivalent to ‘fail’. The tenant in tail had not therefore forfeited the estate.
Romer J said: ”The expression ‘refuse or neglect’ involves the idea of some exercise of discretion, some exercise of will, on his part’ (per Warrington J in Re Edwards (supra)). If the word ‘neglect’ connotes the exercise of the will it cannot include a failure or omission which is due to ignorance of the provisions of the document, and which therefore does not result from any operation of the mind.’

Judges:

Romer J

Citations:

[1926] Ch 992

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 14 July 2022; Ref: scu.639678

Astley v Earl of Essex: CA 1874

A remainderman who fails to enforce a forfeiture of a preceding life estate obtains a fresh right to possession when the life estate terminates on the death of the life tenant.

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 290, 30 LT 485

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 14 July 2022; Ref: scu.639679

Naylor and Another v Barlow and Others: ChD 19 Jun 2019

‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which would have bound that parent? (2) If so, what is the effect of their failure to fulfil the condition because they were never informed of its terms before the time had passed for them to fulfil the condition and it is by then too late for them to do so?’

Judges:

His Honour Judge Hodge QC

Citations:

[2019] EWHC 1565 (Ch)

Links:

Bailii

Statutes:

Wills Act 1837 33

Jurisdiction:

England and Wales

Citing:

Approved – Hives v Machin ChD 2017
The court considered a suggested disapplication of section 33, and pointed out that there was no requirement that a contrary intention should be expressed in particular terms or that there should be any reference to the section. Nor was it necessary . .
Cited – In Re Quinton Dick (orse Quintin Dick), Concurry (Lord) v Fenton 1926
T died in 1858, and by his will devised his estates on strict successive trusts, directing beneficiaries to take the surname and arms of Dick. Should a beneficiary fail to comply within three months, the bequest should fail for that person and pass . .
Cited – In Re Jones; Williams v Rowlands ChD 1947
A gift over had failed to take effect despite non-compliance with a condition subsequent requiring a village hall to be completed within a certain period of time because assets had not been saleable due to war conditions, making it impossible to . .
Cited – Watson v The National Children’s Home and Others ChD 9-Oct-1995
Where a will imposed an impossible condition on a gift in the will, then the condition is deemed to be spent, and the gift to be unconditional. . .
Cited – Ling v Ling ChD 2002
VL requested a declaration that she was entitled to the entire estate of her father m after his death. The will said that if A (M’s wife) died within a month of M, the estate was to be held on trust for any child aged 21 or more surviving the M by a . .
Cited – Astley v Earl of Essex CA 1874
A remainderman who fails to enforce a forfeiture of a preceding life estate obtains a fresh right to possession when the life estate terminates on the death of the life tenant. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 14 July 2022; Ref: scu.639291

Young’s Trustees v Young’s Trustee: HL 17 Dec 1901

A testatrix by a codicil to her last will and testament directed that in a certain event which happened the half of the residue should ‘be applied for such charitable or public purposes as my trustee thinks proper.’
Held ( affirming the judgment of the Second Division) that this direction was invalid on the ground of vagueness and uncertainty.

Judges:

Lord Chancellor (Halsbury), Lord Shand, Lord Davey, Lord Brampton, and Lord Robertson

Citations:

[1901] UKHL 212, 39 SLR 212

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 14 July 2022; Ref: scu.630994

MacDonald (M’Dougal’s Trustee) v Heinemann and Others: HL 22 Nov 1917

Succession – Conditio si sine liberis decesserit – Parent Forfeiting his Spes successionis.
A testator gave an alimentary liferent of the residue of his estate to a sister M. M. and to her husband J. M., and directed that on the death of the longest liver the residue should be divided among their children. He excluded, however, the leases of certain farms he cultivated, with the stocking thereon, with regard to which he provided – ‘I direct that the leases of . . shall be made over to the said M. M. in liferent, and at her death to the said J. M. also in liferent, and at the death of the longest liver of them to such of her sons as she may appoint by any writing under her hand in fee, and failing such appointment, then to her eldest son in fee, and if he shall not accept of the same, then to the next eldest son who shall be alive at the death of the said M. M. and her husband, and so on to her sons in succession in fee, and if all the sons shall refuse or die, then to the daughters in succession in fee, and such son or daughter so succeeding to the said leases . . shall be debarred from participating in any other share or portion of my means and estate.’ M. M. and her husband declined the provision in their favour with regard to the leases, and by agreement between them, the trustees, and the children these were assigned and made over to a son. This son predeceased his mother.
Held that the son’s children could claim no share of the residue of the trust estate, inasmuch as the son could never have taken any share, and consequently there was no institute to whom the conditio si sine liberis decesserit could be applied.

Judges:

Lord Chancellor (Finlay), Viscount Haldane, Lord Dunedin, Lord Atkinson, and Lord Parmoor

Citations:

[1917] UKHL 80, 55 SLR 80

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 14 July 2022; Ref: scu.631012

George Attenborough and Son v Solomon: HL 19 Nov 1912

The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative because of the assents of them made by her executors.

Judges:

Viscount Haldane LC

Citations:

[1912] UKHL 4, [1913] AC 76

Links:

Bailii

Cited by:

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

Wills and Probate, Land

Updated: 13 July 2022; Ref: scu.265973

Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others: CA 8 Feb 2008

The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: ‘Sections 124 and 125 of the 1981 Act deal with access to documents, namely wills, that are under the control of the court. Those sections provide that wills are to be open to inspection ‘subject to the control of the High Court’. Rule 58 of the NCPR makes provision for the court to determine that a will shall not be open to inspection if such inspection ‘would be undesirable or otherwise inappropriate’. No procedure is laid down for seeking or resisting an order that a will is not to be open to inspection. ‘ However the process under which this and other wills had been sealed was not itself transparent and no reasons had been given. The claimant should be given opportunity to argue his case.

Judges:

Lord Phillips of Worth Matravers CJ, Thorpe LJ, Dyson Lj

Citations:

[2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327

Links:

Bailii

Statutes:

Supreme Court Act 1981, Non-Contentious Probate Rules 1987 3

Jurisdiction:

England and Wales

Citing:

Cited – Lewis v Lewis 1904
An executor owes no duty to inform a legatee of the terms of his legacy. . .
Appeal from – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .

Cited by:

Cited – Re Benmusa FD 14-Mar-2017
No Access to will of Princess Margaret
The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 July 2022; Ref: scu.264268

Hives v Machin: ChD 2017

The court considered a suggested disapplication of section 33, and pointed out that there was no requirement that a contrary intention should be expressed in particular terms or that there should be any reference to the section. Nor was it necessary to demonstrate that a conscious decision had been taken to exclude the effect of the section. What appeared to be necessary was: ‘language of the will to show that the devise or bequest in question should not take effect, in the specified circumstances, as a devise or bequest to the living issue of the deceased beneficiary. Thus, an express provision for a different substitution (or none) in the event of death would seem to be sufficient. But the mere fact that the will would otherwise have a different effect will not suffice, as that is merely the trigger for the application of section 33.’
The question was not simply: what does the gift in the will mean? It was: does the will show an intention that s.33 should not have effect?

Judges:

Timothy Fancourt QC (sitting as a Deputy Judge of the Chancery Division)

Citations:

[2017] EWHC 1414 (Ch)

Statutes:

Wills Act 1837 33

Jurisdiction:

England and Wales

Cited by:

Approved – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 July 2022; Ref: scu.639673

Re Greenwood, Goodhart v Woodhead: CA 1903

If a condition attached to a testamentary gift is capable of being construed either as a condition precedent or a condition subsequent, the court will prefer the latter construction. Here, the beneficiary died before he was required to comply with the condition and was therefore excused from performance by the act of God.

Citations:

[1903] 1 Ch 749, [1900-3] All ER 332

Jurisdiction:

England and Wales

Wills and Probate

Updated: 13 July 2022; Ref: scu.639674

In Re Jones; Williams v Rowlands: ChD 1947

A gift over had failed to take effect despite non-compliance with a condition subsequent requiring a village hall to be completed within a certain period of time because assets had not been saleable due to war conditions, making it impossible to build the hall.
Unless he has said so ‘in words plain beyond peradventure’, a testator should not be taken to intend to allow the omission of trustees to do what he has told them to do to prejudice one beneficiary in favour of another.

Judges:

Roxburgh J

Citations:

(1947) 2 All ER 716

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 July 2022; Ref: scu.639677

Ling v Ling: ChD 2002

VL requested a declaration that she was entitled to the entire estate of her father m after his death. The will said that if A (M’s wife) died within a month of M, the estate was to be held on trust for any child aged 21 or more surviving the M by a month. R, VL’s pre-deceased brother left a child AL. VL argued that the will disapplied section 33. AL argued that the requirement for a benefitting child to survive T by one month was not a limit on the class of beneficiaries only to those who had fulfilled the contingency, and that the will did not disapply the section.
Held: The application by VL failed. AL qualified as a beneficiary in the absence of an intention that M’s grandchildren would not benefit in the place of their deceased parent. However AL would not qualify until he reached 21, since his interest was subject to the limitation which would have applied to his late father’s gift.
Etherton J said: ‘Section 33(2) operates by way of including issue of the deceased child in the class, and limiting, by subsection (3), their interest to the gift or share which their parent would have taken. The issue within the class must satisfy the contingencies determining the date of distribution, as much as any other member of the class.’

Judges:

Etherton J

Citations:

[2002] WTLR 553, [2002] EWHC ChD 264

Statutes:

Wills Act 1837 33(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 July 2022; Ref: scu.639675

Grayburn v Clarkson: CA 1868

The executors of an estate were held liable for the loss incurred in failing to convert shares within the twelve month period after the testator’s death. The executors did not provide any explanation for the delay so the Court could not inquire into the circumstances and exercise a discretion to extend the executor’s year.
Page-Wood LJ said that it: ‘seems to be that there is no fixed rule that conversion must take place by the end of the year, but that that is a prima facie rule, and that executors who have not converted by that time must shew some reason why they did not do so.’

Judges:

Page-Wood LJ

Citations:

(1868) LR 3 LR Ch App 605

Jurisdiction:

England and Wales

Wills and Probate

Updated: 13 July 2022; Ref: scu.446108

Holder v Holder; In re Frank Holder dec: CA 8 Dec 1967

The court considered a complaint that a trustee had purchased trust property.
Held: There is a residual discretion in the Court to uphold a transaction that technically falls within the prohibition.

Judges:

Harman LJ, Danckwerts LJ, Sachs LJ

Citations:

[1967] EWCA Civ 2, [1968] Ch 353, [1968] 1 All ER 665, [1968] 2 WLR 237

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 12 July 2022; Ref: scu.262787

Satterthwaite, Re: CA 26 Jan 1966

The testatrix, a wealthy widow had left nearly all her fortune to animal charities. The executors now sought directions, being unable to identify several charities from the names in the will.
Held: The terms of the will demonstrated an overwhelming charitable intent, and therefore where no charity was found with th eidentical name, schemes were created to apply the funds cy pres.

Judges:

Harman, Diplock, Russell LJJ

Citations:

[1966] EWCA Civ 3, [1966] 1 WLR 277, [1966] 1 All ER 919

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children HL 1915
A Scotsman left his money to a beneficiary which he called the National Society for the Prevention of Cruelty to Children.
Held: The House refused to accept that a gift to the ‘National Society for the Prevention of Cruelty to Children’ should . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity

Updated: 12 July 2022; Ref: scu.262788

Paul v Constance: CA 8 Jul 1976

Judges:

Scarman LJ

Citations:

[1976] EWCA Civ 2, [1977] 1 WLR 527

Links:

Bailii

Jurisdiction:

England and Wales

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.

Trusts, Wills and Probate

Updated: 12 July 2022; Ref: scu.262712

Watson v The National Children’s Home and Others: ChD 9 Oct 1995

Where a will imposed an impossible condition on a gift in the will, then the condition is deemed to be spent, and the gift to be unconditional.

Judges:

HHJ Colyer QC

Citations:

Times 31-Oct-1995, Gazette 18-Oct-1995

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 July 2022; Ref: scu.90327

Wordie’s Trustees v Wordie: HL 28 Feb 1916

Held that a direction to trustees, duly appointed, ‘to pay over the balance or residue of my estates to or for behoof of such charitable purposes as I may think proper to name in any writing, however informal, which I may leave, but failing my leaving such writings, then to such charitable institutions or societies which exist for the benefit of women and children requiring aid or assistance of whatever nature, but said institutions and societies to be under the management of Protestants’-the testator having left no such writing-was not void from uncertainty, neither on the ground that no power of selection was expressly conferred on the trustees, nor on the ground that the objects to be benefited were insufficiently pointed out.

Judges:

Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1916] UKHL 291, 53 SLR 291

Links:

Bailii

Jurisdiction:

Scotland

Charity, Wills and Probate, Trusts

Updated: 11 July 2022; Ref: scu.630674

Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others: FD 5 Jul 2007

The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. None of the evidence presented remotely constituted evidence of what the claimant asserted. Though section 124 appeared to grant a full right to see a will lodged with the registry, that right was subject to a discretion in the court. As to his human rights claim that he was entitled to know: ‘The Human Rights Act was enacted and the Convention concluded in order to protect from interference and prejudice real rights and existing situations, not illusory rights or imaginary claims. A claimant is entitled to respect for the existence and development of his or her real family life under Article 8 and not for a fantasy family life, the product of his or her imagination. ‘ The claim failed.

Judges:

Sir Mark Potter P

Citations:

[2007] EWHC 1607 (Fam), [2007] WTLR 1129

Links:

Bailii

Statutes:

Non-Contentious Probate Rules 1987, Supreme Court Act 1981 124

Jurisdiction:

England and Wales

Citing:

Cited – In re: King George III 1822
The will of the Sovereign is not subject to probate. . .
Cited – Reichal v Magrath 1889
The court has an inherent jurisdiction to strike out all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. . .
Cited – In re Stollery 1926
A birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate. . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Jackson v Jackson and Pavan 1964
A properly issued birth certificate is prima facie evidence of the matters stated. . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .

Cited by:

Appeal from – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA 8-Feb-2008
The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: . .
Cited – Re Benmusa FD 14-Mar-2017
No Access to will of Princess Margaret
The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Human Rights

Updated: 11 July 2022; Ref: scu.254471

Edwards v Edwards and others: ChD 3 May 2007

Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue influence. Lewison J set out the principles applicable in uundue influence cases.
Lewison J summarised the law of undue influence: ‘there is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
(i) in the case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.
(iii) whether undue influence has procured the execution of the will is therefore a question of fact.
(iv) the burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is perhaps no more than a reminder of the high burden even on the civil standard, that a Claimant bears improving undue influence is vitiating a testamentary disposition.
(v) in this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
(vi) coercion is pressure that overpowers the volition without convincing the testator’s judgement. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that over bears the testator’s free judgement, discretion or wishes, is enough to amount to coercion in this sense.
(vii) the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to over bear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case, simply to talk to a weak and feeble testator may so fatigued the brain that a sick person may be induced for quietness sake to do anything. A drip . . drip approach may be highly effective in sapping the will.
(viii) there is a separate ground for avoiding testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is fraudulent calumny. The basic idea is that if A price is the testator’s mind against B who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.
(ix) the essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgement if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.
(x) the question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to sanitary powers of intervention, a testator may dispose of his estate as he wishes. The question in the end is whether in making his disposition the testator has acted as a free agent.’

Judges:

Lewison J

Citations:

[2007] EWHC B4 (Ch), [2007] WTLR 1387

Links:

Bailii

Jurisdiction:

England and Wales

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 – 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 – Ram and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 10 July 2022; Ref: scu.251652

In re Goldsmith: 1947

The testator had directed his trustees to hold his freehold house upon trust, after the death of his wife, for a Mr Bingham, but subject to the payment of andpound;800 by him to his trustees within six months of his death to form part of his residuary estate. B failed to comply with that condition but offered to pay the sum within six months of her death.
Held: Time was of the essence, because performance of the condition would not result in placing all the parties in the same position as if the terms of the will had been strictly complied with: among such parties must be included the widow, as tenant for life of the residue. Having regard to the language of the will, it must be taken the testator intended the andpound;800 to be paid within six months of his death for the purpose of bringing about what was the necessary consequence of those payments, namely an increase in his residuary estate, which would have provided additional income for his widow during her life.

Judges:

Wynn-Parry J

Citations:

[1947] Ch 339

Jurisdiction:

England and Wales

Cited by:

Cited – Hayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 10 July 2022; Ref: scu.179725

Ryan-Cox v Cox: PC 27 Jun 2019

(From the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia)) The appeal concerns provisions of the superseded Civil Code of 1879 which relate to dower and the effect of a contract of marriage on the ability of a husband to dispose of property by testamentary disposition.

Citations:

[2019] UKPC 32

Links:

Bailii

Jurisdiction:

Commonwealth

Family, Wills and Probate

Updated: 10 July 2022; Ref: scu.639105

Mussell and Another v Patience and Another: ChD 15 May 2019

Written ruling on an issue arising in attempting to agree a minute of order following a hearing concerning the costs of earlier proceedings. Those proceedings were dealt with as proceedings for an account by the claimants as executors of what they had done with the estate of the deceased.

Citations:

[2019] EWHC 1231 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 10 July 2022; Ref: scu.638189

Archer Shee v Garland: HL 15 Dec 1930

The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject of a benefit devised or bequeathed to him or her under the will.

Judges:

Lord Buckmaster, Viscount Dunedin, Lord Warrington of Clyffe, Lord Tomlin, Lord Thankerton

Citations:

15 TC 693, [1930] UKHL 2, [1931] AC 212

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Baker v Archer-Shee HL 26-Jul-1927
‘The ultimate question in this Appeal turns upon the description which in income tax phraseology ought properly to be applied to the moneys paid during the two years in question by the Trust Company of New York to the order of Lady Archer-Shee, the . .

Cited by:

Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Equity, Wills and Probate

Updated: 09 July 2022; Ref: scu.248479

Chichester Diocesan Board of Finance v Simpson: HL 21 Jun 1944

The court was asked whether a gift in a will to the trustees ‘for such charitable institution or institutions or other charitable or benevolent object or objects in England’ as they should select, was valid.
Held: ‘The fundamental principle is that the testator must by the terms of his will himself dispose of the property with which the will proposes to deal. With one single exception, he cannot by his will direct executors or trustees to do the business for him. That exception arises when the testator is minded to make gifts for charitable purposes, and where he directs his executors or trustees, within such limitations as he chooses to lay down, to make the selection of charities to be benefited. This exception from the general principle that the testator has to decide in his will the specific destination of his property is allowed because of the special favour which the English law shows to charities, and the conception of what is charitable for such purposes has been elaborately worked out so that the courts are able to determine whether a particular gift is charitable or not. ‘ In this case the will allowed also for ‘benevolent’ and therefore non-charitable causes.

Citations:

[1944] UKHL 2, [1944] AC 341

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sir Graham Stanley Latimer and others – Trustees for the Crown Forestry Rental Trust v The Commissioner of Inland Revenue PC 25-Feb-2004
PC (New Zealand) The Crown created a charitable trust for certain Maori people. Upon exhaustion of the purpose, the fund was to revert to the Crown. The trustees appealed a finding of liability to income tax.
Cited – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009
The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity

Updated: 09 July 2022; Ref: scu.248500

Blackwell v Blackwell: HL 24 Jan 1929

The House was asked to what extent is it possible to give effect to testamentary intentions that are at variance with the provisions first of the Statute of Frauds and later of the Wills Act.

Citations:

[1929] UKHL 1, [1929] AC 328

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 09 July 2022; Ref: scu.248477

Gibbs v Harding and others: ChD 12 Jan 2007

The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was capable of being charitable, subject to the application of the 1976 Act. It therefore took effect as a gift to the Roman Catholic Diocese of Westminster on charitable trusts.

Judges:

Lewison J

Citations:

[2007] EWHC 3 (Ch)

Links:

Bailii

Statutes:

Race Relations Act 1976 34

Jurisdiction:

England and Wales

Citing:

Cited – Harrison v Gibson ChD 21-Dec-2005
The husband owned the family home. In a home-made will, he left it ‘in trust for’ his wife. She died leaving differing proportions to each child. On her death the children sought a declaration from the court as to their respective interests.
Cited – Mitford v Reynolds 1842
A gift was made to the native inhabitans of Dacca. It was challenged as being void.
Held: As to whether a gift was charitable, the same principles apply when a particular class of inhabitants of a locality are the beneficiaries as when the the . .
Cited – In Re Dominion Students’ Hall Trust 1947
A trust deed imposed a ‘colour bar’.
Held: The court upheld a scheme which removed the bar. However, notionally there could be two complementary charities ‘one for white and one for coloured students’. These notional trusts were not being . .
Cited – Attorney General v Webster 1875
A trust expressed to be for the benefit of a fluctuating body of individuals, such as the inhabitants of a locality, can only take effect as a charitable trust, if it has effect at all. . .
Cited – Goodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
Cited – Regina v District Auditor No 3 Audit District of West Yorkshire Metropolitan County Council ex parte West Yorkshire Metropolitan County Council 1986
. .
Cited – McPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
Cited – Re Mellody 1918
A gift to the schoolchildren of Turton was as valid a charitable gift as a gift to the inhabitants of the Borough would be. The gift was a gift ‘for purposes beneficial to a section of the community’; and the schoolchildren themselves were ‘a very . .
Cited – In re Smith 1932
A gift ‘unto my country England’ was construed as a charitable gift for the benefit of the inhabitants of England and, by analogy with the cases on gifts to a parish, town or city, as impressed with a trust that it be applied for charitable purposes . .
Cited – In Re Strakosch 1949
The court may construe a gift as impliedly limited to charitable purposes. Lord Greene MR said: ‘In Williams’ Trustees v Inland Revenue Commissioners the House of Lords has laid down very clearly that in order to come within Lord Macnaghten’s fourth . .
Cited – Williams’ Trustees v Inland Revenue Commisioners HL 1947
A trust was created by the memorandum and articles of association of a company. The overall objects of the company were to promote Welsh interests in London. The principal object of the trust was to create a centre in London ‘for promoting the moral . .
Cited – Morice v Bishop of Durham HL 1805
The court was asked whether a gift of residue to be applied ‘to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of’ was valid as being confined to purposes that were charitable.
Held: . .
Cited – Glazebrook v University of Leeds ChD 1944
The court upheld a charitable gift despite its uncertainty. . .
Cited – Peggs and Others v Lamb and Others ChD 20-Apr-1993
Where beneficiaries had dwindled and income increased, the class of beneficiaries was extended. A gift to a class of people would be construed to be charitable unless there was something in the gift to exclude the presumption. It had been submitted . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity, Discrimination

Updated: 09 July 2022; Ref: scu.247686

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 between the various factors listed in section 4 which had to be borne in mind, beyond the overarching principle that what was determinative was the judicial evaluation of what was in the protected person’s ‘best interests’; (2) that the weight to be attached to the various factors would, inevitably, differ depending upon the individual circumstances of the particular case; and (3) that in any particular case, there might be one or more features or factors which were of ‘magnetic importance’ in influencing or even determining the outcome.
He went on to say that the protected person’s wishes and feelings would always be a significant factor to which the Court must pay close regard; the weight to be attached to the protected person’s wishes and feelings would always be case-specific and fact-specific; and in considering the weight and importance to be attached to the protected person’s wishes and feelings, the Court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances, including (but not limited to) (a) the degree of the protected person’s incapacity; (b) the strength and consistency of the views being expressed by the protected person; (c) the possible impact on the protected person of knowledge that her wishes and feelings were not been given effect to; (d) the extent to which the protected person’s wishes and feelings were, or were not, rational, sensible, responsible, and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which the protected person’s wishes and feelings, if given effect to, could properly be accommodated within the Court’s overall assessment of what was in his best interests.

Judges:

Munby J

Citations:

[2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791, [2011] 1 WLR 344

Links:

Bailii

Statutes:

Mental Capacity Act 2005 4(2)

Jurisdiction:

England and Wales

Citing:

Approved – 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 by:

Cited – In Re D (Statutory Will); VAC v JAD and Others ChD 16-Aug-2010
The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
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.

Health, Wills and Probate

Updated: 09 July 2022; Ref: scu.377902

Gold v Curtis: 2005

Citations:

[2005] WTLR 673

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 08 July 2022; Ref: scu.432720

Clarke v Brothwood and others; In re Clarke: ChD 16 Nov 2006

The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to shares of one tenth and one twentieth, when it should have referred to per cent figures.
Held: Behrens J said: ‘It is to my mind inconceivable that if Mr Clarke had applied his mind to the problem he would not have appreciated that 60% of the residuary estate was undisposed of. Thus I am satisfied that he did not. In those circumstances the jurisdiction to rectify the will exists and I propose to rectify it.’

Judges:

Behrens J

Citations:

[2006] EWHC 2939 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Citing:

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 – 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 . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .

Cited by:

Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 July 2022; Ref: scu.246708

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 this was discriminatory under European law. The defendant said that her stay in England was unlawful, and that she should not be counted as having lived with the deceased.
Held: The European treaty did not apply in such proceedings, and the claimant’s appeal failed. As to the defendant’s argument: ‘the claimant’s unlawful presence in this country [was] no bar to her ability to invoke the court’s jurisdiction under the Act to make reasonable financial provision for her out of the deceased’s estate. ‘ The court was entitled to conclude that the cohabitation with the deceased had continued despite the claimant’s return to Poland. The defendant’s cross appeals also failed.

Citations:

[2006] EWHC 1940 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, EC Treaty 12

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 – V v Addey and Stanhope School CA 30-Jul-2004
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – Whiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
Cited – Santos v Santos CA 16-Feb-1972
The court considered whether one party who lived in Spain and the other who lived mainly, but not exclusively, in England, were, despite several periods of close cohabitation, living apart.
Held: Mere physical separation without more did not . .
Cited – 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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, European

Updated: 07 July 2022; Ref: scu.244114

Green and others v Gaul and others: CA 28 Jul 2006

The court considered the validity and effect of a compromise agreement reached to settle dispute in administration of estate. The time for making a claim against the executor of an estate begins to run from the time when the executor has paid the costs, expenses, and other liabilities including pecuniary legacies.

Judges:

Chadwick, Thomas, Lloyd LJJ

Citations:

Times 01-Sep-2006, [2006] EWCA Civ 1124, [2007] 1 WLR 591

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Re Pauling’s Settlement Trusts ChD 1962
Family money had been placed into a trust to be managed by a bank. It was said that the bank had wrongly advanced money to the daughter allowing her to fritter away large parts of the capital
Held: The bank had misunderstood the power of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation

Updated: 07 July 2022; Ref: scu.243995

Williams v Johns: 1988

Citations:

[1988] 2 FLR 475

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 07 July 2022; Ref: scu.432718

Brunt v Brunt: 1873

The testator had purported to revoke his will, but was, at the time, very ill.
Held: At the time of the purported revocation, he had insufficient capacity for the act of revocation.

Citations:

[1873] 3 PandD 37

Jurisdiction:

England and Wales

Wills and Probate

Updated: 07 July 2022; Ref: scu.424274

Dingmar v Dingmar: CA 12 Jul 2006

A house was held upon joint tenancy between the deceased and one of his sons. The transfer into joint names took effect just before the deceased married the claimant. They lived at the property with her children. Seven years after the death, the son obtained an order for possession of the house against the claimant widow. In answer, she took out a grant of representation and sought, under the 1975 Act, a transfer to her of the deceased’s half share in the property. The property’s value had increased from andpound;40,000 to andpound;95,000. The judge had held that, if he had been able to do so, he would have transferred the deceased’s half share to the claimant, but found that he could do no more than order payment to her of half of the value of the house at the date of death, namely andpound;20,000.
Held: (Lloyd LJ dissenting) The ‘net estate’ under the 1975 Act included any property treated as part of it by virtue of section 9. No valuation was required. The proportionate share of the property which would have belonged to the deceased, had there been severance, is treated as the share which the court was entitled to treat as part of the net estate and the court was, therefore, empowered to order a transfer of that full half share to the claimant.
Lloyd LJ said that the words ‘at the value thereof immediately before his death’ meant that the judge had been correct to hold that he did not have power to order the full half share of the house to be treated as part of the net estate.
Jacob LJ said that section 1 indicated that ‘the heart and object of the Act’ was to enable reasonable financial provision for an applicant and that purpose should guide the construction of the Act: ‘This case is concerned with section 25(1)(d). This brings within the ‘net estate’ ‘any property’ the subject of a section 9 order. One may therefore reasonably approach section 9 on the basis that it will have the effect of bringing ‘property’ into the net estate. And that is what it essentially says: for what the court is empowered to order under section 9 is that ‘the deceased’s severable share of that property’ (i.e. property held on a joint tenancy before death) be treated as part of the estate.
This is subject to the qualification ‘at the value thereof immediately before his death’. This, read one way, does not make sense: although a share of property will have a value which can be expressed in monetary terms, that value is not itself a share in property. You cannot order ‘a value’ to form part of the net estate. It is a share in property itself which is to be treated as part of the estate. So what is Parliament driving at by the words ‘at the value . . ?’
There are several possible candidates. (i) The property is valued at the date of death (which I shall call ‘andpound;x’). The deceased’s proportionate share of the property if there had been a severance at death is then applied to that value. If there were n joint owners that share will andpound;x/n. That sum of money, is then taken as the ‘property’ somehow to be treated as part of the estate. This is achieved by ordering that the claimant shall have a fixed beneficial share in the property of andpound;x/n, the property being held on a trust for sale between the claimant and defendant(s) or by a charge of andpound;x/n over the property. That is what the judge did, halving the agreed at death value of andpound;40,000, and ordering that the property be held on trust with the claimant having a fixed beneficial share of andpound;20,000. (ii) One asks the valuer also to ascertain the value at the time of the hearing (‘andpound;y’). The fraction of the property which would have belonged to the deceased if there had been severance (1/n) is applied to andpound;x/y. That is then taken as the share of the property to be treated as part of the estate. It is only that proportion which the court is empowered to treat as part of the estate. Here that is 40,000/95,000 divided by 2 – practically 21%. So the court has power to treat a 21% share in the property as part of the net estate. This is again achieved via a trust, but this time the claimant gets a proportionate share rather than a fixed sum. (iii) One does not call in a valuer at all for the section 9 exercise. One takes the proportionate share of the property which would have belonged to the deceased if there had been severance of joint ownership (1/n) and treats that proportion of the property as the share of the property which the court is empowered to treat as part of the estate. Here that would give a half share.
I see no logical reason for selecting candidate (i). It is the least satisfactory solution – it involves the court as in effect treating cash which is not there – a notional sum- as part of the estate when the court is actually only entitled to treat property as part of the estate. This solution does the most violence to the language used. Moreover given that property values can go up or down it produces the completely illogical result that the claimant loses out if property prices rise between death and the decision whereas his co-owner loses out if property prices fall in that period.
Solution (ii) also suffers from irrationality. If there is a rise in property values between death and the hearing, most of that rise would fall outside the net estate. In algebraic terms the figure is andpound;(y-x/yn). If there is a fall, the net estate benefits at the expense of the other co-owners. Why should Parliament want to provide that? Particularly as the whole point of the Act is to make reasonable provision for applicants. Here, for instance, the judge quite rightly took the view that if it were possible the widow should have a half share in the property as she would have done if the question had been resolved at the time of death.
62. Solution (iii) is not merely the most rational, it is the only one which is rational. The happenstance of price movements and the dates of hearing is removed from consideration. The share of the property remains fixed. Of course its value at the date of the hearing is a factor which may be taken into account in the overall assessment of what is to be done (section 3(5)) but that is quite a different question from what property is to be treated as part of the net estate. The solution is even-handed between the other co-owner(s) and the net estate – if property prices rise then each gets a proportionate benefit and if they fall, each gets a proportionate loss.’
He offered alternative explanations of the meaning of the important phrase about ‘value’ in section 9, saying: ‘First there may be more that two joint owners of a property, say n. If the deceased severed his interest just before death he would only get the appropriate proportion 1/n of an interest in the property. And it is only that proportion which can be treated as part of the net estate. On this basis the words are aimed at emphasising that. Strictly they are unnecessary but they are there out of caution to make the position clear.
On this analysis ‘value’ is not speaking of a monetary value at all. It is speaking of a proportionate value of the property. This makes sense since, as I have said, ‘value’ and ‘property’ are different things and it is the property which is treated as part of the net estate. The solution fits with the purpose of the Act. The solution has the merit of avoiding several irrationalities. So it must be regarded as correct since Parliament cannot have intended the irrational. One is trying to arrive at the meaning a rational reader would think a rational writer had intended. Only solution (iii) achieves that.’
Ward LJ said: ‘In so far as the order must relate to ‘the deceased’s severable share of that property, at the value thereof immediately before his death’, the property there referred to must be the same property as that referred to in the opening clause, namely the property in which the deceased person was immediately before his death beneficially entitled to a joint tenancy. This is an important point. Even though a value has to be given to that share at a particular point in time, the subsection does not require that the sum of money representing that value be treated as part of the net estate. It is the property not a sum of money equal to its value which is clawed back into the net estate. The emphasis here is on the property, i.e. the severable share (or part thereof), not its monetary value. Giving the share a value is merely descriptive of the share. The words simply state the fact that immediately before the death of the deceased the value of that severable half share was andpound;20,000.’
He concluded: ‘To treat the value immediately before death as creating a cap is to give the element of value an importance it does not seem to me to deserve. It has the consequence that the value placed on the severable interest dominates and controls the property interest to the extent that it changes the nature of the severable share itself from something certain to something uncertain. If the value was to have such defining influence I would have expected ‘net estate’ for section 9 purposes to be defined in section 25(1)(d) as ‘any sum of money, being the value of the share before death’, not ‘any property’. As already observed, when sums of money are intended to be part of the net estate, section 25 so provides: see section 25(1)(c) . As it is drafted, ‘property’ is the dominant characteristic of the net estate, and it, not value, should be the predominant element. Property should be construed in accordance with its natural meaning as a fixed interest, not a fluctuating one.’

Judges:

Ward, Jacob, Lloyd LJJ

Citations:

[2006] EWCA Civ 942, [2006] 3 WLR 1183, [2007] Ch 109, [2007] 2 All ER 382

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 07 July 2022; Ref: scu.243069

Dundee General Hospital Board of Management v Bell’s Trustees: HL 26 Mar 1952

The willl left a gift subject to the sole discretion of the trustees as to the ownership of the Hospital.
Held: A decision taken by trustees based upon a wrong interpretation of a deed could be set aside as avoided. Lord Normand said: ‘It cannot be said that it was extravagantly unreasonable to apply a retrospective provision in considering the position of the infirmary at any time within the retrospective period, for the effect of making a provision retrospective is the same as a statutory declaration that at any time within the retrospective period the provision should be deemed to have been in force. Nor do I think it extravagantly unreasonable to doubt whether a nexus affecting the entire property of the infirmary, and intended pro tanto to prevent the evasion of the expropriation sections of the Act, might not have placed the infirmary to some extent under the control of the State.’ . . And ‘ It cannot be said that it was extravagantly unreasonable to apply a retrospective provision in considering the position of the infirmary at any time within the retrospective period, for the effect of making a provision retrospective is the same as a statutory declaration that at any time within the retrospective period the provision should be deemed to have been in force. Nor do I think it extravagantly unreasonable to doubt whether a nexus affecting the entire property of the infirmary, and intended pro tanto to prevent the evasion of the expropriation sections of the Act, might not have placed the infirmary to some extent under the control of the State.’

Judges:

Lord Normand

Citations:

[1952] 1 All ER 896, [1952] UKHL 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others ChD 6-Apr-2006
Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 06 July 2022; Ref: scu.242384

Austen v Collins: 1886

A condition in a will that a beneficary ‘take steps’ means that the heir must make every endeavour.

Judges:

Chitty J

Citations:

(1886) LT 903

Jurisdiction:

England and Wales

Cited by:

Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 July 2022; Ref: scu.450444

Kenwood v Adams: 1975

Templeman J set down the ‘golden rule’ that a lawyer should ensure that in the case of any doubt, a will should be witnessed or approved by a medical practitioner who had satisfied himself of the testator’s capacity and understanding.

Judges:

Templeman J

Citations:

[1975] CLY 3591

Jurisdiction:

England and Wales

Cited by:

Cited – Hinton and Another v Leigh and Another ChD 26-Oct-2009
The testator had made a will, agreed to be valid, but then purported to revoke it. A test at the time suggested he suffered moderate dementia.
Held: The revocation was invalid based on the medical evidence as to capacity. Whilst in the nursing . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 July 2022; Ref: scu.377375

Wylde v Culver: ChD 12 Apr 2006

The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions there is no stated presumption that a discontinuing claimant should pay the costs down to the discontinuance. However I approach the question of costs on the basis that the Claimant, in seeking to discontinue, should ordinarily pay the costs, and that the onus lies with him to show why there should be some different order. Shortly stated, in the absence of some good reason for a different order, it can be taken that the action was wrongly brought. This, after all, would be the starting point if the action went to trial and was dismissed. ‘ In this case, the claimant had been reasonable in acting on the issues on which the action was based, and he should not be ordered to pay the costs on the discontinuance. No order for costs was made.

Judges:

George Bompas QC

Citations:

[2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Green v Briscoe 9-May-2005
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Wills and Probate

Updated: 06 July 2022; Ref: scu.241462

Goodchild v Goodchild: ChD 13 Dec 1995

The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but nevertheless, fell short of having full and explicit status as mutual wills. Even so they could still create a trust, with a like result. The court granted an order under section 2 of the 1975 Act on the ground that wife’s mistaken belief that the terms of the wills were mutually binding imposed a moral obligation on the deceased. That constituted a special circumstance which exceptionally justified a claim by the son under the Act of 1975. ‘It is also clear from Birmingham v Renfrew . . that these cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust . . The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding.’ and ‘the agreement or understanding must be such as to impose on the donee a legally binding obligation to deal with the property in the particular way and that the other two certainties, namely, those as to the subject matter of the trust and the persons intended to benefit under it, are as essential to this species of trust as they are to any other.’

Judges:

Carnwath J

Citations:

Times 22-Dec-1995, Ind Summary 08-Jan-1996, [1996] 1 WLR 694

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Wills Act 1837 18

Jurisdiction:

England and Wales

Citing:

Appealed to – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .

Cited by:

Appeal from – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 06 July 2022; Ref: scu.80910

Dellar v Zivy and others: ChD 9 Oct 2007

Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court had jurisdiction. If domiciled in England, moveables went as at the date of death. In French law, they went as at the date of execution of the will.
Held: The will was made in England by English solicitors and the deceased gave his address in England and explicitly asserted English domicile. He appointed and English solicitor one of his exectors, and specifically applied an English Act of Parliament. Though he had a French domicile of origin, he had abandoned that domicile. Under English law, the first defendant was entitled to the shares.

Judges:

Kitchin J

Citations:

[2007] EWHC 2266 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re Allen’s Estate 1945
A will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made. . .
Cited – Re Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Re Levick ChD 1963
The proper law ‘regulating’ the disposition of movable property for the purposes of section 28(2) was the law of the testator’s domicile at the time of his death. Plowman J said that the term ‘regulate’ was concerned with the material or essential . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Jurisdiction

Updated: 05 July 2022; Ref: scu.259855

Williams v Hensman: 10 Jun 1861

A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy may be severed. Where joint tenants indicated by their conduct that they treated their interests separately, the fact that they did not understand that their interests had been joint did not prevent such behaviour acting to sever the tenancy.

Judges:

Sir William Page Wood VC

Citations:

[1861] 1 John and Hem 546, [1861] 30 LJ CH 878, [1861] 5 LT 203, [1861] 7 Jur NS 771, [1861] 70 ER 862, [1861] EWHC Ch J51

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Followed – Burgess v Rawnsley CA 15-Apr-1975
. .
Cited – Barton v Morris 1985
A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves . .
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.

Equity, Wills and Probate

Updated: 05 July 2022; Ref: scu.238854

In Re Sinclair, deceased: CA 1985

The testator, a divorcee had already made a will leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund. He died in 1963. His former wife survived him and claimed under the will.
Held: The court applied the 1837 Act, which provided that, where a testator is divorced after having made his will, any devise or bequest to his former spouse shall lapse, except in so far as a contrary intention appears by the will. The gift over did not take effect. The word ‘lapse’ in section 18A(1)(b) meant no more than ‘fail’. It did not mean ‘fail with the same consequences as if the former spouse had predeceased the testator’. Since neither of the two contingencies on which the gift over was to take effect had occurred, the estate devolved as on the testator’s intestacy. ‘I am bound to say that I have some sympathy with the fund, because, like the deputy judge, I have more than a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the fund. However one cannot, I think, possibly say with any certainty that merely because this testator in 1958 intended that his estate should go over to the fund if his wife should predecease him, he would necessarily and a fortiori have intended that the same results should ensue if the marriage ended by divorce during his lifetime. As the deputy judge pointed out, the truth of the matter is that, when he made his will, he clearly did not address his mind in any way to the unhappy contingency of a future divorce. It would not, I think, be open to the court to rewrite the will by adding other specific contingencies to those clearly expressed in clause 4 on the basis of mere intelligent speculation as to what the testator might have intended if his marriage were to end in divorce. It could only be done, if at all, by a process of necessary implication, …’

Judges:

Slade LJ

Citations:

[1985] Ch 446

Statutes:

Wills Act 1837 18A(1)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others CA 17-Apr-1997
The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 July 2022; Ref: scu.211376

Stead v Stead: 1985

The court declined to award a widow a large capital sum from her husband’s estate.

Citations:

[1985] FLR 16

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Family, Wills and Probate

Updated: 05 July 2022; Ref: scu.213641

Bain’s Trustees v Bain: HL 5 Aug 1902

A testator, the residue of whose estate was divisible under his settlement in certain shares, directed his trustees as soon as convenient after his death to pay one of the shares to one of his sons, and to pay one-fourth of a share to each of his daughters, the remaining share and parts of shares being directed to be held for behoof of his other son and his daughters in liferent, and their children or certain of their children in fee. He authorised and desired his trustees to continue his interest in a certain colliery joint-adventure for such length of time after his death as they might consider expedient, and empowered them to assign any of his securities to any of the beneficiaries in payment of any capital sums falling to them, and in so doing, and for the purpose of ascertaining the amount of residue falling to be divided, he directed that his interest in the colliery should be valued by his trustees, such valuation not being subject to challenge by the beneficiaries. The trustees not having made a division of the residue, and having retained the testator’s interest in the colliery joint-adventures, questions arose between the liferenters and the fiars as to the profits therefrom. Held that the trustees ought to proceed forthwith to a division of the residue of the estate, and for that purpose ought to value the deceased’s interest in the colliery adventure, and that in case they should allot said interest or a portion thereof to any settled share, the liferenter would be entitled to pounds 4 per cent. per annum on the sum at which said interest or portion thereof so allotted had been valued.
Observed ( per Lord Davey and Lord Lindley) that, although interest was allowed at 4 per cent., that being the rate generally allowed, it was worthy of consideration whether in future, having regard to the fall in the rate of interest, more than 3 per cent. should be allowed in such cases.

Judges:

Lord Macnaghten, Lord Davey, Lord Brampton, and Lord Lindley

Citations:

[1902] UKHL 66, 40 SLR 66

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 05 July 2022; Ref: scu.630802

Alexander Burnet, Charge Des Affaires At The Court of Berlin v Sir Thomas Burnet, Bart: HL 30 Apr 1766

Succession – Adjudications – Destination – Heirs Whatsoever – Confusio.- Adjudications were purchased up by the heir succeeding to an estate specially destined to ‘ heirs male.’ He took the conveyances of these adjudications to himself and his ‘heirs whatsoever.’ Held, that when the estate descended to an heir male, different from the heir of line, or heir whatsoever, that the heirs of line were not entitled to succeed as such, to the adjudications; and that these, as collateral and accessory rights, had accrued to the family estate, and were not now a separated estate, but extinguished confusione in the person of the heir male.

Citations:

[1766] UKHL 2 – Paton – 122, (1766) 2 Paton 122

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.560636

Mrs Eupham Hamilton, Widow of Charles Hamilton, Esq, and Bethia and Charlotte Hamilton, Their Daughters v Archibald Hamilton, Esq of Rosehall: HL 5 Apr 1767

Heir and Executor – Apparency – Rents.- Held, reversing the judgment of the Court of Session, that the executors, and not the heir of a party who died in possession of an estate on apparency, was entitled to the arrears of rents unuplifted at her death.

Citations:

[1767] UKHL 2 – Paton – 137, (1767) 2 Paton 137

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.560701

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 s20 could not apply to a home-made will such as the one before me because ‘clerical error’ on s20(1)(a) suggests a clerk. I do not accept this. A testator writing out or typing his own will can make a clerical error just as much as someone else writing or typing out a will for him’ and ‘if, however liberal may be the approach of the court, the meaning is one which the word or phrase cannot bear, I do not see how . . the court can declare that meaning to be the meaning of the word or phrase’, and ‘varying or contradicting the language used, would amount to re-writing’, which is ‘to be achieved, if at all, under the rectification provisions in section 20’.

Judges:

Nicholls J

Citations:

[1985] 1 All ER 964, [1985] 1 WLR 905

Statutes:

Administration of Justice Act 1982 20

Jurisdiction:

England and Wales

Cited by:

Applied – 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 . .
Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Cited – Clarke v Brothwood and others; In re Clarke ChD 16-Nov-2006
The claimant sought rectification of a will. The respondents argued that any mistake was not a clerical one so as to bring it within section 20. The gift of residue had left sixty per cent undisposed of. It was said that the will had referred to . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 04 July 2022; Ref: scu.242248

Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe: CA 6 Dec 2005

The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to marry. The marriage took place about one year before the death.
Held: ‘in relation to claims for financial provision and property adjustment in proceedings between divorced former spouses, the correct approach for the court to adopt, following the decision of the House of Lords in White v White [2001] 1 AC 596 is to apply the statutory provisions to the facts of the individual case with the objective of achieving a result which is fair, and non-discriminatory.’ though ‘there is, self-evidently, a profound difference between a marriage which ends through the death of one of the spouses, and a marriage which ends through divorce.’ Complaint had been made that the judgment given was unstructured and did not explain how the conclusion had been reached. That criticism was correct, and the judgment could not stand. The estate was of sufficient size to satisfy the dependency needs of the other family members, some with disabilities, without the need for recourse to any share which might be payable to the widow. ‘the sum of andpound;600,000 proposed by Wall LJ is not and cannot be the product of a precise calculation. It is, however, for the reasons explained by him, an approximation which involves a departure from starting point of equality of division amply justified by a number of factors: the size of the net estate, Mrs Cunliffe’s reasonable housing and financial needs, her financial resources, in particular her entitlement to andpound;226,000 by survivorship, and the agreement that she will recoup her substantial costs of the proceedings from the estate.
The substituted sum also takes proper account the statutory guidelines to which the court is directed to have regard, in particular Mrs Cunliffe’s age and the very short duration of her marriage to the deceased. The shortness of the marriage limited the opportunities available to Mrs Cunliffe to make a significant contribution to the welfare of the deceased. The size of the amount awarded by the judge indicates that he could not have had any real regard to the short duration of the marriage, there being only a passing mention of the factor in paragraph 49 of his judgment. He noted the factor without attempting to explain what effect it had on his assessment of the lump sum in this case, as compared, for example, with a marriage lasting for 10 or 20 years.
For the above reasons this is one of those unusual cases in which this court is entitled to interfere with the judge’s discretion relating to reasonable financial provision under the 1975 Act. ‘

Judges:

Mummery LJ, Wall LJ, Moore-Bick LJ

Citations:

[2005] EWCA Civ 1508, [2006] Ch 361, (2005-06) 8 ITELR 855, [2006] 1 FLR 745, [2006] Fam Law 263, [2006] 2 All ER 115, [2005] 2 WLR 481, [2005] 3 FCR 593, [2006] WTLR 29

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Cited by:

Cited – 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, Family

Updated: 04 July 2022; Ref: scu.235723

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.

Citations:

[2005] EWCA Civ 1479

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At Admn – 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, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 04 July 2022; Ref: scu.235534

National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children: HL 1915

A Scotsman left his money to a beneficiary which he called the National Society for the Prevention of Cruelty to Children.
Held: The House refused to accept that a gift to the ‘National Society for the Prevention of Cruelty to Children’ should go to the society of that name, which had its head office in Leicester Square. It relied upon the background facts that the testator was ‘a Scotsman living in Scotland’ who had made a ‘Scotch will’ to construe the will as intended to refer to the ‘Scottish National Society for the Prevention of Cruelty of Children’. There was not ‘a rigid rule’ that ‘once a persona is accurately named in a will’ there is not to be ‘any further inquiry or consideration in regard to the person who is to take the benefit.’ The true rule is that ‘the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name.’
Earl Loreburn said: ‘My Lords, I think the true ground upon which to base a decision in this case is that the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances. I use as a convenient method of expressing one’s thought the term ‘presumption’. What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said’.

Judges:

Earl Loreburn, Parmoor, Atkinson, Shaw LL

Citations:

[1915] AC 207

Jurisdiction:

Scotland

Cited by:

Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Satterthwaite, Re CA 26-Jan-1966
The testatrix, a wealthy widow had left nearly all her fortune to animal charities. The executors now sought directions, being unable to identify several charities from the names in the will.
Held: The terms of the will demonstrated an . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity

Updated: 04 July 2022; Ref: scu.185093

Special Case – Sharpe’s Trustees v Kirkpatrick and Others: HL 16 Nov 1879

Succession – Legacy – Residue – Cumulative Bequest.
Interest – Payable from Death of Testator.
Terms of a deed held ( rev. judgment of Court of Session) insufficient to take a case out of the general rule that a legacy and bequest of residue are cumulative.
Terms of a deed held ( rev. judgment of Court of Session) not to imply any postponement of payment so as to defeat the right of legatees to claim interest from the date of the testator’s death.
A testator having written on the margin of a holograph letter of instructions the words ‘all free of legacy-duty,’ held ( rev. judgment of Court of Session) that the application of these words could not be limited to the legacies opposite to which they were written, but must extend to all the legacies.

Judges:

Lord Chancellor (Cairns), Lord O’Hagan, and Lord Selborne

Citations:

[1879] UKHL 315, 16 SLR 315

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.637969

Whyte v Hamilton: HL 15 Jun 1882

A document holograph of the granter, disposing completely and regularly of his whole heritable and moveable estate, was headed ‘Notes of intended settlement;’ the granter left no other testamentary writing. Held (aff. judgment of the Court of Session) that the terms of the title justified the admission of evidence prout de jure to confirm or to disprove the testamentary character of the document, and that, the evidence so led being neutral in its result, the ambiguity of the title was not sufficient to show that the document was not a final expression of the granter’s will; and the document sustained accordingly as a valid testamentary writing.

Judges:

Lord Chancellor Selborne, Lords O’Hagan, Blackburn, and Watson

Citations:

[1882] UKHL 688, 19 SLR 688

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.637741

City of Glasgow Bank Liquidation – (Buchan’s Case) John Buchan v The Liquidators: HL 20 May 1879

Public Company – Winding-up – Trustees and Executors – Liability of Executor where Part of Executry Estate Consists of Shares in Joint-Stock Company – Personal and Representative Liability.
In the case of a testator holding shares in a joint-stock company, his executor may (1) have the shares transferred to his own name, and thereby become a partner in the company, or, in the event of his not desiring them so transferred, he may (2) have a reasonable time allowed him to sell the shares and to produce a purchaser who will take a transfer.
Opinion (per Lord Selborne) that where an executor merely produces his confirmation for the purpose of having it recorded in the books of a joint-stock company in which the testator held stock, and receives it back again with a certificate describing him as holder of the shares in terms having reference to his character of executor, he does not thereby necessarily incur personal liability, whatever entries may have been made in the company’s books, and notwithstanding the subsequent receipt of dividends by him for a series of years.
Opinion (per Lord Selborne) that trustees have not, in any proper sense of the word, a representative character, but that executors have.

Judges:

Lord Chancellor (Cairns), Lord Hatherley, Lord O’Hagan, Lord Selborne, and Lord Gordon

Citations:

[1879] UKHL 512, 16 SLR 512

Links:

Bailii

Jurisdiction:

Scotland

Company, Wills and Probate

Updated: 04 July 2022; Ref: scu.637959

Orr Ewing and Others v Orr Ewing’s Trustees: HL 24 Jul 1885

A domiciled Scotsman died leaving a trust-disposition and settlement executed in Scottish form disposing of his personal property, which was of great amount, and was situated in Scotland, except about one-sixteenth which was in England. He appointed six trustees and executors, all Scotsmen, and four of whom were domiciled in Scotland and two in England. None of the purposes of the trust fell to be performed out of Scotland. The trustees gave up an inventory and obtained from the Commissary of the county in which the deceased died domiciled decree of confirmation under sec. 9 of the Confirmation and Probate Act 1858, and had this confirmation sealed with the seal of the English Court of Probate under section 12 of the same Act. After the English assets, except a very small part thereof, had been transmitted to Scotland, an administration suit was commenced in the Chancery Division of the High Court of Justice in England against the trustees (three of whom were cited in England and three in Scotland) at the instance of an infant residing in England who was one of the residuary legatees, suing by his next friend. The trustees appeared and objected to the estate being administered in England, but ultimately the High Court of Justice and the House of Lords on appeal decided that an administration order should be made, and that complete accounts and inquiries should be taken and made in England. Thereafter the Court of Session, in an action at the instance of the residuary legatees (other than the infant plaintiff) against the trustees, granted a decree of declarator that the trustees were bound to administer the estate according to the law of Scotland, and subject to the jurisdiction of the Scottish Courts alone, and were not entitled to place the funds in the hands of or render accounts to any Court furth of Scotland, and also sequestrated the estate and appointed a judicial factor suspending the action of the trustees in the meantime, and interdicted the trustees, until the estate should be fully vested in the judicial factor, removing the estate or any part thereof, or any writs belonging thereto, out of the jurisdiction of the Scottish Courts.
Held that the declaratory portion of the judgment ought to be reversed, because (1) the trust-disposition and settlement did not contemplate that the investment and administration of the estate must necessarily be in Scotland; (2) while the succession to the estate of a person deceased must be according to the law of his domicile, the forum in which the rights resulting therefrom must be vindicated is’ not necessarily the Court of that domicile (the dictum of Lord Westbury to that effect in Enohin v. Wylie, 10 Clark, House of Lords Cases, 1, being disapproved); (3) the decisions of the Scottish Courts show that the Courts of Scotland will when necessary sustain their jurisdiction over the parties administering a foreign will when they are resident within Scotland, or the estate they are administering is within Scotland, though the Courts of Scotland will only exercise that jurisdiction when an accounting cannot be obtained in the more convenient forum; (4) because the terms of Art. 19 of the Treaty of Union relied on in the Court of Session did not apply; (5) because the Confirmation and Probate Act 1858 relied on in the Court of Session has no bearing on a question of jurisdiction.
But (II.) held that the sequestration of the trust-estate and appointment of a judicial factor – having been ordered by the Court of Session in the exercise of its own independent jurisdiction unaffected by the decision of the House of Lords in the English appeal, and in order that the administration of the estate should proceed in the proper and convenient forum, were right and ought to be supported.

Judges:

Earl of Selborne, Lords Blackburn, Watson, and Fitzgerald

Citations:

[1885] UKHL 911, 22 SLR 911

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 04 July 2022; Ref: scu.637755

In re MB (A Patient) (Court of Protection: Appeal): CA 1 Nov 2005

The applicant appealed an order that a statutory will be executed for the patient, who suffered from Alzheimer’s disease. The will substituted a solicitor for the applicant as executor, and made technical improvements. The court considered its jurisdiction to hear an appeal without leave to appeal having been obtained.
Held: The 1983 Act allowed for the nomination of judges to hear applications. High Court judges would be nominated to these posts. A statutory right of appeal lies from the nominated judge to the Court of Appeal: ‘Although a nominated judge derives his position from his office as a judge of the High Court, when exercising his jurisdiction under Part VII of the Mental Health Act 1983 he is not sitting in the High Court. Accordingly the permission requirements imposed by CPR Part 52.3 do not apply to an appeal from his decision delivered in the course of such jurisdiction. ‘

Judges:

Sir Peter Gibson (President)

Citations:

[2005] EWCA Civ 1293, Times 10-Nov-2005

Links:

Bailii

Statutes:

Mental Health Act 1983 105(1), Cvil Procedure Rules 52.3

Jurisdiction:

England and Wales

Citing:

Cited – Re Cathcart 1893
The jurisdiction to appoint judges to deal with the assets of those with mental health problems is vested in the Lord Chancellor, but is exercised by certain appointed/nominated judges of the High Court. . .
Cited – Colley v Council for Licensed Conveyancers CA 17-Jul-2001
The applicant had sought to exercise his statutory right of appeal from a decision by his professional body. The judge had considered that leave was necessary under the rules, and granted limited permission. The applicant appealed, saying that his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 04 July 2022; Ref: scu.231673

Atkins v Dunn and Baker (A Firm): CA 19 Feb 2004

The claimant’s father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed that the claimant was owed a duty of care. The recorder had concluded that there was no duty further to chase a client who may not have wished to take the matter any further.
Held: There may not always be a duty to chase up a client. This client was known to be meticulous, and his failure to reply seen properly as choosing not to go ahead. The appeal failed.

Judges:

Lord Justice Pill Lord Justice Thomas Lord Justice Jacob

Citations:

[2004] EWCA Civ 263

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 03 July 2022; Ref: scu.194417