Category: Wills and Probate

Tyrrell v Painton: CA 1894

The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin and the discussion of circumstances which might excite the court’s suspicion, Lindley LJ said: ‘[W]herever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.’

Judges:

Lindley LJ

Citations:

[1894] 1 P 151

Citing:

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

Cited by:

Cited – 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 – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.450176

Espinosa v Bourke: CA 1999

The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed her application, holding that whilst the deceased had a moral obligation to the applicant, based both on a promise by the deceased to leave shares previously belonging to his wife to the daughter, and on the daughter’s care for the deceased during his lifetime, that moral obligation had been discharged by the deceased’s financial support for the daughter during his lifetime.
Held: Her appeal succeeded. the claimant was awarded andpound;60,000 from the total net estate of andpound;196,000. The Court attached weight to the claimant’s assertion that her father had promised her mother that those assets that she had left directly to her husband would pass to her.
Butler-Sloss LJ summarised the arguments presented: ‘Mr Norris QC for the appellant submitted that the judge fell into error in his approach to the claim. He concentrated on the issue of moral obligation and did not consider the criteria under s 3(1) as a whole. Mr Norris submitted that the most significant factor for the court to take into account was the applicant’s needs and resources and the judge failed, despite the evidence before him, to make any findings at all about the financial position of the appellant: s 3(1)(a). An adult child was in no special position and this appellant was, at the time of death, dependent upon the deceased. At the time of the hearing her financial position was precarious. The judge, having found that a moral obligation existed, was in error in concluding that it had been discharged.
Mr Herbert QC submitted that the judge had to make a value judgment and the appellate court should not interfere unless he was plainly wrong. A court should be reluctant to disturb a will. An adult child capable of earning a living had a big hurdle to overcome unless moral obligation or special circumstances could be established. He accepted that the judge did not make findings about the appellant’s financial position but submitted that on the facts of this case it was not necessary to do so. In any event it must be inferred that the judge considered it was a case where the appellant had needs in order for him to go on and consider the moral obligation. The appellant had never provided evidence nor sought to ask for details of the portfolio shares inherited by the deceased from his wife and there was no evidence about it. At the time of the trial the appellant had bought a business and her present financial position was adequate. He submitted that the judge was entitled to come to the conclusion that the contribution made by the deceased during his lifetime together with the conduct of the appellant discharged any obligation he might have towards her.’
Butler-Sloss quoted her own judgment in Re Hancock and said: ‘I have drawn attention to the passages above from earlier decisions of this court in order to show the way in which the words ‘moral obligation’ and ‘special circumstance’ have been applied in the judgments. Subsection (1)(d) refers to ‘any obligations and responsibilities’. Plainly those obligations and responsibilities extend beyond legal obligations and that is why, in my view, the word ‘moral’ has been used to underline and explain that the deceased’s obligations and responsibilities are not to be narrowly construed as legal obligations but to be taken into account in a broad sense of obligation and responsibility. Any other meaning of ‘moral’ (such as the distinction between right and wrong, see Concise Oxford Dictionary) would more appropriately be considered under (g). There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)-(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator’s dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act.
Applying these propositions to the present appeal, in my judgment the judge did fall into error by focusing too much upon the requirement for an adult child to show a moral obligation. At the stage that he decided that the moral obligation had been discharged, he failed to put the other criteria, particularly needs and resources of the appellant, into the balancing exercise. In the light of the way in which the case was presented to him, I have some sympathy with the judge’s approach to his decision. We were also told that it was an extempore judgment on the last day of his sitting in Manchester. Nonetheless his approach to the value judgment he had to make was flawed and his decision cannot stand.’

Judges:

Butler-Sloss LJ

Citations:

[1999] 1 FLR 747

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .

Cited 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 andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
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. . .
Cited – Wright v Waters and Another ChD 6-Nov-2014
The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.431727

In Re Abram: 1996

Citations:

[1996] 2 FLR 379

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: 15 May 2022; Ref: scu.432719

Re Marsland: 1939

The testator had made his will and contracted not to change it.
Held: A contract not to revoke a will is subject to contingencies. Revocation by operation of law on remarriage is not a breach of such a contract results from the operation of law. The testator could not be prevented from altering his will, but the other party to the contract may be free to bring an action for breach of contract.

Citations:

[1939] Ch 820

Wills and Probate

Updated: 15 May 2022; Ref: scu.424444

Aldrich v Attorney-General: ChD 1968

Judges:

Ormrod L

Citations:

[1968] P 281

Jurisdiction:

England and Wales

Citing:

Criticised – In the Estate of Wayland 1951
Where a testator makes will in different jurisdictions, if each will deals only with property in a different country, the later will does not revoke the earlier one even if it does contain a revocatory clause. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.424269

Re Stable, deceased. Dalrymple v Campbell: 1918

It is not necessary for the validity of a privileged (nuncupative) will that the testator knew that he was making a will: what is required is that he ‘intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death.’ ‘at sea’ meant being engaged on a voyage or on work connected with the actual navigation of the sea.

Judges:

Horridge J

Citations:

[1918] P 7

Jurisdiction:

England and Wales

Cited by:

Cited – Ayling v Summers and Others ChD 14-Sep-2009
Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.375762

St John v Bishop of Winton: 1774

One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: ‘All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;’ (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.

Citations:

[1774] EngR 31, (1774) 1 Cowp 94, (1774) 98 ER 985

Links:

Commonlii

Wills and Probate, Land

Updated: 15 May 2022; Ref: scu.373887

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; Ref: scu.372193

Jones v Randall: 1 Dec 1819

Bequest of an annuity to the children of A. in equal shares and proportions, to continue during their lives and the life of the survivor of them. The children take as tenants in common, and there is no survivorship between them by implication ; therefore the share of one dying goes to its representative.

Citations:

[1819] EngR 741, (1819) 1 Jac and W 100, (1819) 37 ER 313

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.331944

Swaffield v Orton: 2 Jun 1847

A testator, after bequeathing to his daughter (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to and to be equally divided between his grandson and granddaughter (by name) as tenants in common ; but in case of the death of the granddaughter, under twenty-one and unmarried, in the lifetime of the grandson, or in case of the death of the grandson in the lifetime of the granddaughter, under twenty-one, he bequeathed the whole to the survivor ; and, after directing payment, during the minority of the grandchildren, for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the principal of the share of his grandchildren in the residue, and directed that his grandchildren respectively should not be entitled to receive his or her share, or the accumulations, until after the death of their mother (the annuitant). The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, when she became entitled to the absolute and immediate possession of any part of the residuary estate, the same and all accumulations should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the granddaughter, during her mother’s lifetime, for a transfer of the fund : Held, that the direction to accumulate in the will was precarious and ineffectual, and was not rendered otherwise by the settlement, and that the granddaughter’s moiety became capital at her marriage, and that the accumulations since that period belonged to her for her separate use.

Citations:

[1847] EngR 576, (1847) 1 De G and Sm 326, (1847) 63 ER 1088

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.301192

Miles v Miles: 12 Jan 1866

By his will, the testator gave ‘all that my messuage, partly freehold and partly leasehold,’ in Cannon Street, according to the nature and tenure thereof, respectively, in trust for his widow for life, or, as to the leaseholds, for so long as the term and interest in them should exist, with remainder over. After the date of his will, the reversion in fee of the leaseholds was purchased by, and conveyed to, the testator. Held, that the fee of the whole passed under the specific gift of ‘my messuage’ at C., and that the rent of the devise was descriptive.

Citations:

[1866] EngR 53 (B), (1866) 35 Beav 191

Links:

Commonlii

Wills and Probate

Updated: 15 May 2022; Ref: scu.280764

Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased): FD 2004

The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
Held: Munby J made an award under the Act to an adult child of the deceased, part of which was to pay off debts incurred by the claimant. However, these were debts for living expenses incurred after the date of death of the deceased, and Munby J excluded from his award any sum towards her debts incurred before the date of death.

Judges:

Munby J

Citations:

[2004] EWHC 1944 (Fam), [2008] WTLR 851

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
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 andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
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: 15 May 2022; Ref: scu.277860

Smith v Smith and Others: ChD 12 Jul 2001

The claimant had executed a voluntary disclaimer, under which he renounced all his expectation under a will. The testator was still alive. After her death, the executors relied upon the disclaimer, and the applicant said it was ineffective. He was correct. A disclaimer operates as an avoidance, not as a disposition. In order to be effective there must be some real interest upon which it could bite. An expectancy under a will was not such an asset, and the disclaimer was ineffective. Also, no consideration had been given for the disclaimer, neither could it be treated and enforced as an agreement by the executors.

Citations:

Times 18-Jun-2001, Gazette 12-Jul-2001

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.89347

Re Marshall’s Will Trusts: 1945

The word ‘trust’ is to be given its ordinary meaning. Cohen J adopted, as its ordinary meaning, the definition then to be found in Underhill on Trusts: ‘A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over which he has control (which is called the trust property) for the benefit of persons (who are called the beneficiaries or cestuis que trusts), of whom he may himself be one, and any one of whom may enforce the obligation.’

Judges:

Cohen J

Citations:

[1945] Ch 217

Cited by:

Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.267736

Twist v Tye: 1902

The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her testamentary capacity.
Held: They had not acted improperly, but they had taken a view about the testatrix which turned out to be mistaken. The executors had taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event.

Judges:

Sir Gorell Barnes

Citations:

[1902] P 92

Citing:

Distinguished – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .

Cited by:

Cited – Kostic v Chaplin and others ChD 7-Dec-2007
The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself . .
Endorsed – Re Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 14 May 2022; Ref: scu.263525

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.

Citations:

[1945] 2 All ER 264

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

Updated: 14 May 2022; Ref: scu.259863

Ministry of Health v Simpson; In re Diplock dec: HL 1950

The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an estate.
Lord Simonds was clear that the principles with which he was dealing related to the administration of assets of a deceased person, and: ‘The broad fact remains that the Court of Chancery in order to mitigate the rigour of the common law or to supply its deficiencies established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid.’
Lord Simonds did not accept that a claim should not lie against a person who had received a legacy in good faith and then spent it, without knowledge of any flaw in his title: ‘My Lords, I find little help in such generalities. Upon the propriety of a legatee refusing to repay to the true owner the money that he has wrongly received I do not think it necessary to express any judgment. It is a matter on which opinions may well differ. The broad fact remains that the Court of Chancery, in order to mitigate the rigour of the common law or to supply its deficiencies, established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid. No doubt the plaintiff might by his conduct and particularly by laches have raised some equity against himself; but if he had not done so, he was entitled to be repaid. In the present case the respondents have done nothing to bar them in equity from asserting their rights. They can only be defeated if they are barred at law by some Statute of Limitations.’

Judges:

Simonds L

Citations:

[1951] AC 251, (1950) 2 All ER 1137

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Mentioned – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 14 May 2022; Ref: scu.259533

In the Estate of Austin: 1929

A former solicitor, who had been struck off the Roll for professional misconduct, propounded a will under which he was named as an executor and the residuary legatee. The will which the former solicitor had prepared contained an unusual attestation clause stating that the will had the deceased’s knowledge and approval.
Held: The circumstances were enough to raise suspicion. The judge was not satisfied that the deceased understood the effect of the will. The onus of proof falling on its propounder had not been satisfied. The court pronounced in favour of some legacies, but not of others.

Judges:

Swift J

Citations:

(1929) SJ 545

Cited by:

Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 14 May 2022; Ref: scu.241761

The Law Society of the United Kingdom v Waterlow Brothers and Layton: HL 1883

There was a claim that there had been a breach of section 2 of the 1843 Act by law stationers (who had had various dealings with the Probate registry under the supervision of solicitors). The Rules of the Probate Court required applications for probate to be made, if not by the executor, then by a proctor, solicitor or attorney.
Held: If some step in a proceeding is required to be done only by the party or his solicitor, then if that step is taken by an unqualified person (not being the party), that person will necessarily be acting as a solicitor within the meaning of section 2 of the 1843 Act. such an application was ‘a solicitor’s or proctor’s business’. The claim was dismissed. The stationers were simply executing instructions to do ministerial acts in order to save the real solicitor from the trouble and expense of doing them: they had not been practising as solicitors themselves. In considering whether there had been a breach of section 2, the House of Lords proceeded on the footing that to act as a solicitor is to do what may only be done by a qualified practitioner. Lord Bramwell: ‘I am of the opinion that they have not; and I am of opinion that they have not because they have not; and really that is the only answer which one can give . . ‘

Judges:

Lord Bramwell

Citations:

(1883) 8 App Cas 407

Statutes:

Solicitors Act 1843 2

Jurisdiction:

England and Wales

Cited by:

Cited – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Wills and Probate

Updated: 14 May 2022; Ref: scu.237581

In re Evans Dec’d: 1999

Where the administration of a deceased’s estate remained incomplete the claimants rights to receive their share or interest had not yet accrued, and the limitation period had not yet commenced.

Citations:

[1999] 2 All ER 777

Wills and Probate

Updated: 13 May 2022; Ref: scu.223966

Inland Revenue Commissioners v Hawley: 1928

When a legatee of shares received them more than a year after the death, he was not treated as receiving all the accrued dividends as income of the year in which the shares became vested in him, but rather, by relation back to the death, in the year in which each dividend accrued.

Citations:

[1928] 1 KB 578

Cited by:

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

Income Tax, Wills and Probate

Updated: 13 May 2022; Ref: scu.223514

In Re Beaney deceased: ChD 1978

A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the property to be disposed of had not been explained to the mother. The donor could not understand the relevant transaction and its effects without explanation. ‘Mother should have been in a condition to fully understand; (1), that she was disposing of her only asset of value and depriving herself of title to it; (2), that she was thereby pre-empting the provisions of her Will and, (3), that she was preferring one child and cutting out the others from all benefit.’ and
‘The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of a gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor’s only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all of the potential donees and the extent of the property to be disposed of.’

Judges:

Martin Nourse QC

Citations:

[1978] 1 WLR 770

Jurisdiction:

England and Wales

Cited by:

Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Billington (By Billington Her Next Friend) Billington, Warburton v Blackshaw CA 16-Dec-1997
The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.219625

Capron v Capron: 1874

By a will made before the 1870 Act, but amended by a codicil after the Act commenced to the use of his wife with remainders over. After her death having inherited the property, the parties disputed the apportionment of the rents.
Held: The rents were to be apportioned under the 1870 Act. The court noted that an equivalent result would have obtained without the codicil.

Judges:

Malins V-C

Citations:

(1874) 29 LT 826, [1874] LR17 Eq 288, 43 LJ Ch 677, 22 WR 347

Statutes:

Apportionment Act 1870

Jurisdiction:

England and Wales

Cited by:

Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Wills and Probate

Updated: 13 May 2022; Ref: scu.215868

Re Callaghan, deceased: 1984

An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council house at a most advantageous price. ‘I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased’s intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff’s needs.’ and he made that provision by way of a lump sum: ‘That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance.’ The claimant had demonstrated a need: ‘the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application.’

Judges:

Booth J

Citations:

[1985] Fam 1, [1984] 3 All ER 790

Statutes:

Inheritance (Provision for Family and dependants) Act 1975

Cited by:

Cited – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 13 May 2022; Ref: scu.214191

In the Goods of McLean: 1950

The presumption of regularity raises a probability that a will has been duly attested.

Citations:

[1950] IR 180

Jurisdiction:

England and Wales

Cited by:

Cited – Rother District Investments Limited v Corke, Orr, Richards ChD 20-Jan-2004
The court was asked as to the legal effect of a purported peaceable re-entry and forfeiture of a lease by a purchaser of the reversion prior to registration of the purchaser as proprietor at HM Land Registry.
Held: The appeal was denied. What . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.211371

Troja v Troja: 1994

(New South Wales) The court explained the application of the forfeiture rules in cases involving murder. Historically: ‘In a time of attainder, forfeiture, and common exaction of the death penalty following conviction for murder, the niceties of the civil property claims of the perpetrator of a homicide tended to be given less prominence. The abolition of criminal forfeiture, the repeal of the civil impediments upon suing, and the reduction, and final abolition, of the death penalty, have presented the legal system with new problems affecting property law. The so-called ‘forfeiture rule’ was one of the solutions devised to fill the gaps left following the abolition of the old rule. ‘ and ‘A search for a rule more flexible than the absolute legal rule stated in Cleaver, and in subsequent English cases, was soon seen to be necessary because of the grossly unjust consequences which that rule, in its full rigour, produced, both for the perpetrator of the homicide, and others taking through that person. In a word, the absolute rule, whilst apparently defensive of human life, paid no regard to the virtually infinite variety of circumstances in which a homicide may occur, and the ameliorative circumstances that may sometimes exist, especially in a domestic situation.’

Judges:

Kirby P

Citations:

(1994) NSWLR 269

Jurisdiction:

Australia

Citing:

Cited – Cleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Crime, Wills and Probate

Updated: 13 May 2022; Ref: scu.199532

In re Giles Deceased: 1972

A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule should not apply.
Held: The court rejected any attempt to limit the common law rule to cases involving real moral culpability.
Sir John Pennycuick V-C said: ‘Now I do not think that I am concerned to analyse the ground upon which the courts have established the rule of public policy. It is sufficient to say that the rule has been established and that the deserving of punishment and moral culpability are not necessary ingredients of the type of crime to which the rule applies, that is, culpable homicide, murder or manslaughter’ and ‘In the present case, the widow was convicted pursuant to section 2 of the Homicide Act 1957 of manslaughter by reason of diminished responsibility. It is contended, on her behalf, that such a conviction does not fall within the general principle laid down in the cases to which I have referred. On the face of it, it seems to me that such a conviction does plainly fall within the scope of that principle. The principle is, to use a summary expression of Lord Atkin in the Beresford case [1938] AC 586, 599 that the ‘courts will not recognise a benefit accruing to a criminal from his crime’. It is accepted that a person convicted of manslaughter by reason of diminished responsibility has indeed been convicted of a crime. Therefore, on the face of it, such a person in the present connection is in precisely the same position as anyone who was convicted of manslaughter under the law as it stood before the introduction of the Homicide Act 1957. And the cases have established beyond question that a person so convicted of manslaughter is disqualified from taking a benefit under the will or intestacy of the person whom he has killed.
Mr Whitehead for the widow, has sought to exclude these cases of manslaughter by reason of diminished responsibility from the scope of the principle. What he contends is that the principle, only applies to crime deserving of punishment or, to use another phrase, crime carrying a degree of moral culpability, and that where the crime does not deserve punishment and carries no degree of moral culpability, then the principle does not apply. It is true that sentence of detention for hospital treatment under section 60 of the Mental Health Act 1959 is not in the nature of a punishment but is a remedial order. The answer, certainly in this court, is that neither the deserving of punishment nor carrying a degree of moral culpability has ever been a necessary ingredient of the crime the perpetrator of which is disqualified from benefiting under the will or intestacy of the person whom he has killed. That is an entirely new conception and it is actually contrary to the words used by Hamilton LJ in In re H. [1914] P.1, 7.’

Judges:

Sir John Pennycuick V-C

Citations:

[1972] Ch 554

Jurisdiction:

England and Wales

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – D v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Crime

Updated: 13 May 2022; Ref: scu.199529

Re S deceased: 1996

The court considred the application of the Act: ‘ such was the deliberate nature of his violent attack on his wife that the forfeiture rule of public policy applies so as to disentitle the plaintiff from any benefit he would otherwise take as a result of his crime.’

Citations:

[1996] 1WLR 325

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.199531

Re Fleming’s Will Trusts: 1974

By his Will made in 1969, the testator bequeathed to the first defendants his leasehold house at Narcissus Road. The house was than held under a lease term expiring on 28th September, 2008 subject to covenants to repair. In April 1971, the testator purchased the freehold and registered it. The leasehold interest was unregistered and the testator died in February, 1973. As a sole executor of the Will, the plaintiff applied for determination of interest that passed on to the 12 first defendants. The residuary beneficiaries under the Will claimed that the first defendants was only entitled to leasehold interest.
Held: Repelling that contention, Templeman J, while delivering the judgment said: ‘In my judgment, a gift of property discloses an intention to give the estate and interest of the testator in that property at his death; a mere reference in the will to the estate and interest held by the testator at the date of his will is not sufficient to disclose a contrary intention. It follows that the freehold in the case passes to the first defendants.’

Citations:

[1974] 3 All ER 323

Cited by:

Cited – Dutton and Dutton v Dutton and Brown ChD 3-Feb-2000
An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.198158

Re Beadle: 1974

Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed or acknowledged his signature in their presence. The court rejected an argument that attestation was not a matter of intention.

Judges:

Goff J

Citations:

[1974] 1 WLR 417

Citing:

Cited – In the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .

Cited by:

Cited – Sherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.198739

Re Bunning, deceased; Bunning v Salmon: ChD 1984

Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be 36,000 pounds. Yet on an application under the 1975 Act he awarded her 60,000 pounds.

Judges:

Vinelott J

Citations:

[1984] 1 Ch 480, [1984] 3 WLR 265, [1984] 3 All ER 1

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 13 May 2022; Ref: scu.196904

In Re Williams: 1886

The purpose of the section is to allow time to run against an administrator as from the intestate’s death, irrespective of whether a grant of administration has been obtained or not.

Citations:

(1886) 34 ChD 558

Statutes:

Real Property Limitation Acts of 1833 6

Jurisdiction:

England and Wales

Cited by:

Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation, Land

Updated: 13 May 2022; Ref: scu.190224

Re Leigh’s Will Trusts; Handyside v Durbridge: ChD 1970

The testatrix’s husband and only child had drowned in an accident. She was his administratrix and sole beneficiary under his intestacy. At his death, the husband had been the owner of 51% of the issued shares in a company and had been owed money by the company. The testatrix died not long after her husband, at a time when his estate had not been fully administered and when the shares in the company were still registered in her husband’s name. By clause 3 of her will, the testatrix bequeathed to the defendant ‘all shares which I hold and any other interest or assets which I may have in Sheet Metal Prefabricators (Battersea) Limited’. The executors of her will issued a summons to determine whether that specific bequest was valid or not.
Held: A person absolutely entitled to a share of an unadministered estate ‘does have an interest of a kind’ in the assets comprised in it.

Judges:

Buckley J

Citations:

[1970] Ch 277, (2005) 19 Tru LI 109

Jurisdiction:

England and Wales

Cited by:

Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.190221

Brock v Bradley: 1864

A legacy to a single woman if she survives her husband takes effect if she never marries.

Citations:

(1864) 33 B 670

Jurisdiction:

England and Wales

Citing:

Applied – Jones v Westcomb 1711
A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori. . .

Cited by:

Cited – Venables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.189912

Murray v Jones: 1813

A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child.

Citations:

(1813) 3 Ves and B 313

Jurisdiction:

England and Wales

Citing:

Applied – Jones v Westcomb 1711
A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori. . .

Cited by:

Cited – Venables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.189913

Earl of Moray, (Petitioner): HL 1950

The testamentary writings consisted of a trust disposition and five codicils. The petitioner was born after the date of the first codicil, but before the date of the fifth and final codicil. The argument was directed to the question whether the relevant date was the date of the first codicil. But an examination of the terms of the fifth codicil, which is in the Session Papers, has shown that it dealt only with the distribution of various pictures and other items of moveable property and that it did not alter or affect in any way the provisions by virtue of which the petitioner was in possession of the lands of which he was seeking to be the fee simple proprietor.
Held: Section 47 of the 1848 Act applied to any estate which was heritable property at the date when the petition was presented.

Judges:

Lord Mackintosh

Citations:

1950 SC (HL) 281

Jurisdiction:

Scotland

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.186370

In re The Goods of Moore: 1901

Citations:

[1901] ( 44

Cited by:

Cited – Weatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.183799

Re Trotter: 1899

A witness to the will was to claim a benefit under it. The will had later been confirmed and altered in a codicil.
Held: Section 15 did not apply so as to avoid the gift to the beneficiary, since the will, and the gift, had been confirmed by the later codicil which was not so tainted.

Citations:

[1899] 1 Ch 764

Statutes:

Wills Act 1837 15

Wills and Probate

Updated: 12 May 2022; Ref: scu.182729

Scarisbrick’s Will Trusts, In re: ChD 1950

The court considered whether a trust was charitable.
Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was charitable, or whether the gift was one under which the capital was immediately distributable among the objects, in which case the gift was not a charity.

Judges:

Roxburgh J

Citations:

[1950] 1 All ER 143, [1950] Ch 226

Jurisdiction:

England and Wales

Citing:

Cited – The Attorney General v Price 26-Nov-1810
Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling . .

Cited by:

Appeal from – In re Scarisbrick’s Will Trusts, Cockshott v Public Trustee CA 1951
Possible Charity for poor persons within an area
The court was asked whether a trusts for poor persons within a restricted category, the testator’s descendants, not meeting the usual requirement that the benefits be available to a wider section of the community, may be held charitable.
Held: . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity

Updated: 12 May 2022; Ref: scu.181256

Powell v Rawle: 1874

A legacy was given to the testator’s daughter on the ‘express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the amount thereof shall fall into and be considered as part of my residuary personal estate and be applied accordingly.’ The daughter did not claim the legacy for some years. She claimed that she had not heard of it until nearly two years after her father’s death, and it was admitted by the executors that no notice was given.
Held: ‘the words are too strong’ and the fund must fall into the residue, on her failure to claim the legacy.

Citations:

(1874) 18 Eq 243

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: 12 May 2022; Ref: scu.179726

Langley v Earl of Oxford: 1748

A specific legatee of part of a sum due to testator on mortgage, bound by an account settled between the mortgagor and the executor of the mortgagee. Bequest over on a general failure of issue is void.

Citations:

[1748] EngR 105, (1748) Amb 795, (1748) 27 ER 505 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Land

Updated: 12 May 2022; Ref: scu.379667

Fellows, Brennan v Page, Spring, Spring, Spring, Spring and Spring: CA 20 Feb 1998

The defendant, a child of the deceased, sought leave to appeal out of time, against an order. The appeal was forty weeks out of time. The father’s female partner had succeeded in a claim under the 1975 Act. The settlement of her claim had been opposed by the defendant, one of his sons, who had refused to accept the accounts or to agree an indemnity to the executors. The appeal now was against the payment of the executors’ solicitors fees.
Held: The challenges to the award of costs were misconceived and mistaken. The appeal had no prospect of success.

Citations:

[1998] EWCA Civ 315

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 11 May 2022; Ref: scu.143793

In the Goods of Boehm: 1891

It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the will in the belief that the correct name appeared.
Held: the will could be admitted to probate with the name omitted. In some cases, a simple word or expression can be deleted from a will ‘if shewn to have been inserted by mistake’. By omitting the erroneous name he was creating an ambiguous situation. A court of construction might infer, on consideration of the will as a whole, that in the blank the name of the intended legatee should be understood, or it might hold that the clause was meaningless. Nevertheless his Lordship decided to omit the word. He said: ‘If a person by fraud obtained the substitution of his name for that of another in a will it would be strange if his name could not be struck out, although the rest of the clause in which it occurred became thereby meaningless. It may be that in the present case the effect of striking out the name in question will be, on the construction of the will, as it will then read, to carry out the testator’s intentions completely. It is not for me to decide that. But even if to strike out a name inserted in error and leave a blank have not the effect of giving full effect to the testator’s wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions’

Judges:

Jeune J

Citations:

[1891] P 247

Cited by:

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: 11 May 2022; Ref: scu.536792

Richards v Allan: ChD 2001

The court found that the will at issue was prepared under suspicious circumstances which included the fact that the idea of the will was conceived and implemented in a period after a significant hospitalisation where the physical and mental deterioration of the testatrix was becoming apparent and she suffered bouts of confusion. The court was not satisfied that the real content and effect of the will were known to, or even considered by, the testatrix and held that the reading of the will was not such as to indicate sufficiently clearly that she had the degree of appreciation of its contents and effect that was necessary for this requirement of validity.

Judges:

Mr Anthony Mann QC

Citations:

[2001] WTLR 1031

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 11 May 2022; Ref: scu.450177

Atter v Atkinson: 1869

Citations:

[1869] 1 P and D 665

Jurisdiction:

England and Wales

Cited by:

Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 May 2022; Ref: scu.450179

Earl of Winchelsea v Norcliff and Al: 1680

A guardian to an infant having a considerable sum of money in his hands, that was raised out of the infant’s estate, lays out andpound;2500 in a purchase taken in the name of IS for the benefit of the infant, if, when he came of age, he should agree thereto, and allow the trustees that money upon account. The infant dies under age. The question was whether the heir of the infant should have this estate, or whether it should be looked on as a security for andpound;2500, and go to the executors and administrators of the infant ? As precedents for the heir were cited the cases of Palmer and Allicot,(1) and Dennis and Badd (Eq. Ca. Ab. 261, pl. 1; Ch Ca 156, SC), where a guardian buys in a mortgage on the infant’s estate, and takes an assignment of it in the names of trustees.
The Court inclined to the heir, but referred this to be stated as a case by the Master. And in this case the court held, that where a person entitled to a share of an intestate’s estate dies before distribution, and within the year, there was an interest vested, and that his share should go to his executor or administrator.
In this case also the Court was of opinion, that where there is a brother of the whole blood to the intestate, and a sister of the half blood, the sister should have but half a share.

Citations:

[1680] EngR 88, (1680-1687) 1 Vern 403, (1680) 23 ER 545

Links:

Commonlii

Wills and Probate, Children

Updated: 11 May 2022; Ref: scu.402299

Southward v Millard: 1675

In an ejectione firme, the defendant pleaded not guilty. Upon which a special verdict was found. Nicholls possessed of a term for 1000 years, devised the same to E. his daughter for life, the remainder to John Holloway, and made Lowe the husband of the daughter his executor and died : John Holloway devised his interest to Henry and George Holloway, and made Oliver and others his executors and died ; afterwards Lowe spake these words : If E. my wife were dead, my estate in the premisses were ended, and then it remains to the Holloways. E. died, the executors of John Holloway made the lease to the plaintiff, and Lowe made the lease to the defendant, who entred upon the plaintiff who brought ejectione firme; and whether upon the whole matter the defendant were guilty or not of the trespass and ejectment supposed, the jury referred to the Court : and the points upon the case are two. First, whether the words spoken. by Lowe the executor be a sufficient assent to the devise or not: admitting that it is, then the second point is, whether this assent came in due time or not, as to the interest of John Holloway in the remainder, because he died before the words spoken which should make the assent; and as to that, the point is no other, but that the legatee dieth before assent to the legacie, whether aeserit afterwards came too late, or that the legacie shall be thereby lost or not, that is the question : and by Justice Mallet, it is a good assent, and that in due time, and here some things ought to be cleared in the case. First, that the devise to John Holloway in the remainder is good by way of executory devise. Secondly, that the devise by John Holloway to Henry and Gaorge is a void devise, because but a possibility. Thirdly, that the assent to the first devise is an assent also to him in the remainder. And lastly, that if an executor enter generally, he is in as executor arid not as devisee: all which are resolved in Lampetts and in Matthew Mannings case. Now these cases being admitted, the question is, whether that Lowe the executor here hath made a sufficient declaration, to take the term as devisee in the right of his wife, or not : for he hath his election to take it as executor, or all the right of his wife ; and as I conceive
he hath made a good election to have it as legatee in the right of his wife.

Citations:

[1675] EngR 1535, (1675) March NR 135, (1675) 82 ER 445

Links:

Commonlii

Landlord and Tenant, Wills and Probate

Updated: 11 May 2022; Ref: scu.405660

Caffrey v Darby: 1789

As a general rule, executors must get in the property of the testator by all possible remedies.

Citations:

[1789] EngR 325, (1789-1817) 1 Ves Jun Supp 619, (1789) 34 ER 948 (C)

Links:

Commonlii

Cited by:

See Also – Caffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 11 May 2022; Ref: scu.365956

Thomas v Thomas: 11 Jul 1844

By a marriage settlement, the trustees were directed, after the decease of the survivor of the husband and wife, to convey, assign and deliver the settled property to such children or child of the marriage, or the lawful issue of such who should or might be living at the decease of the survivor, and who should attain twenty-one, to whom the husband and wife should jointly appoint, or to whom the survivor of them should appoint; and in default of appointment, to permit the property to be held and enjoyed by and equally between ail the children of the marriage and the survivors of them, and the lawful issue of such children or child so surviving the husband and wife and attaining twenty-one, such issue representing and taking the share that the parent would have taken if living.
Held, that the words in the clause creating the power, ”who shall or may be living at the decease of the survivor,’ referred to the children of the marriage, and not to their issue ; and, therefore, that clause exceeded the limits prescribed by law ; and, consequently, that an appointment made to the son of a daughter of the marriage was void.

Citations:

[1844] EngR 773, (1844) 14 Sim 234, (1844) 60 ER 348

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 11 May 2022; Ref: scu.305365

Thomas v Thomas: 16 Dec 1864

Although the law presumes a person, who has not; been heard of for seven years, to be dead, yet (in the absence of special circumstances it draws no presumption from that fact as to the particular period when he died ; and the onus of proving death at any particular period of time within the seven years lies with the party alleging death at such particular time.

Citations:

[1864] EngR 865, (1864) 2 Dr and Sm 298, (1864) 62 ER 635

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 11 May 2022; Ref: scu.282579

Re Pearce (Deceased): CA 4 Nov 1998

An adult child succeeded in a claim under the Act against his father’s estate, having worked on his fathers farm for many years and for very low pay against a promise that he would inherit the house on the father’s death.

Citations:

Gazette 04-Nov-1998, [1998] 2 FLR 705

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

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 andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
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: 11 May 2022; Ref: scu.85853

Hogg and Others v Raper and Others: CA 22 Apr 1998

A solicitor, drafting a clause in a will exonerating Trustees from liability for mistakes, had same protection as if he had been a trustee. He had no fiduciary breach to draft a clause without which the position would be unacceptable.

Citations:

Times 22-Apr-1998, Gazette 07-May-1998

Jurisdiction:

England and Wales

Wills and Probate, Legal Professions

Updated: 10 May 2022; Ref: scu.81426

In re Field: 1971

The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The court had previously refused to order the administrators to sue or alternatively that she should be at liberty to sue in her own name in the new proceedings. The personal representatives were already joined as formal defendants.
Held: The court rejected the argument that a beneficiary could only sue where a court would direct the executor to sue. That test was not a definition of the circumstances in which the beneficiary could sue in his or her name. This was not such a case, because the widow was the only beneficiary apart from the plaintiff. Though the strike out was refused. the fact that an asset belonging to the estate could only be got in if the plaintiff sued the company could not, by itself, be a special circumstance ‘because, if it were, it would wholly abrogate the rule that special circumstances have to be shown.’
There were special circumstances for the reason that the alleged asset had been paid to the widow on the footing that it was not part of the estate. The widow could not be expected to litigate this question. The circumstances were similar to the case where the cause of action was held on a bare trust. The relevance of that was that this court had held that a beneficiary under a bare trust could bring proceedings in his own name and where the trustees refused to sue, joining the other beneficiaries as defendants: Harmer v Armstrong [1934] Ch 65.
Goff J said: ‘She does not and, indeed, cannot ask for payment to herself, but she asks for payment to the administrators who are added as defendants for the purpose of regularising the proceedings and, by her writ and statement of claim, she expressly disclaims any relief as against them.’
Held: There were special circumstances entitling the former wife to make the claim, particularly because there were no other beneficiaries and the alleged asset had been paid to the widow on the footing that it was not part of the estate. Consequently ‘justice requires that the plaintiff, who is the only other person interested, should be allowed to have this question properly tried by the court.’

Judges:

Goff J

Citations:

[1971] 1 WLR 555

Jurisdiction:

England and Wales

Citing:

Cited – Harmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .

Cited by:

Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 10 May 2022; Ref: scu.279802

Lancaster v Evors: 1841

A creditor of the deceased’s estate could enforce a cause of action vested in an estate which the executors were not willing to enforce.

Citations:

(1841) 4 Beav 158

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Wills and Probate

Updated: 10 May 2022; Ref: scu.279799

Grissell v Swinhoe: 1869

The testator was entitled to a one half interest in a fund of rupees. Mrs S was entitled to the other half. The testator then purported to dispose of the whole fund; and his purported bequest was of one half of it to Mr S, being Mrs S’s husband, and of the other half of it to Mrs G. After the testator’s death Mrs S died and Mr S became entitled to her half of the fund.
Held: The court declined to put Mr S to an election. At the date of the death Mr S had not been the owner of that other half of the fund. Mr S had, in all, an entitlement to three quarters of the fund.

Judges:

Sir William James VC

Citations:

(1869) LR 7 Eq 291

Jurisdiction:

England and Wales

Cited by:

Cited – Frear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 10 May 2022; Ref: scu.278404

Maxwell v Maxwell: 1852

The court rejected a request to apply the doctine of election despite evidence that the testator might have disapproved of the result.

Citations:

(1852) 2 De G M and G 705

Jurisdiction:

England and Wales

Cited by:

Cited – Frear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 10 May 2022; Ref: scu.278401

Symes v Green: 1859

The deceased had been taken ill and his mind affected, but he recovered. For several weeks he behaved normally and wrote a will, but this was within a day of the recurrence of symptoms of his illness which included a fixated idea that he would be eternally damned, having taken communion whilst unworthy. A few days later he was declared insane and died a year later.
Held: Where a will was apparently properly executed and was rational on the face of it, it was to be presumed to be valid and made by a person of proper capacity unless and until the contrary was shown. Once circumstances were shown to exist to counterbalance that presumption, the court must pronounce against the will unless it was established affirmatively that the testator was of sound mind when the will was executed. Here though there was nothing in the will to betray any lack of capacity, circumstances existed to require the shift in the burden of proof, and it was not discharged.

Citations:

(1859) 1 Sw and Tr 401, (1859) 28 LJP and M 83, (1859) 164 ER 785

Jurisdiction:

England and Wales

Health, Wills and Probate

Updated: 10 May 2022; Ref: scu.277880

Re Christie (deceased): 1979

In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
Mr Vivian Price QC said: ‘ ‘although reasonable financial provision means provision for the applicant’s maintenance that did not imply the applicant had to prove that he was destitute or in financial difficulty. The word ‘maintenance’ refers to no more and no less than the applicant’s way of life and well-being, his health, financial security and allied matters such as the well-being, health, financial security of his immediate family for whom he is responsible.’

Judges:

Mr Vivian Price QC

Citations:

[1979] Ch 168, [1979] 1 All ER 546

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Disapproved – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Disapproved – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Mentioned – Re Dennis deceased ChD 1981
The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of . .
Cited – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 10 May 2022; Ref: scu.277861

In re: King George III: 1822

The will of the Sovereign is not subject to probate.

Citations:

(1822) 1 Add 255

Cited by:

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

Wills and Probate

Updated: 10 May 2022; Ref: scu.254492

Public Trustee v Cooper: 2001

The court identified two jurisdictions for the court in construing trusts: (1) the jurisdiction to decide questions of construction as to the ambit of trustees’ powers, and (2) the jurisdiction to ‘bless’ a particular transaction proposed by the trustees in relation to which they are not surrendering their discretion to the court.

Judges:

Walker J

Citations:

[2001] WTLR 901

Jurisdiction:

England and Wales

Cited by:

Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 May 2022; Ref: scu.237750

Re King’s Will Trusts, Assheton v Boyne: ChD 1964

An assent by personal representatives is ‘the instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject-matter of the disposition to the person entitled to it’, and must be in writing even if the assent is by the executors in their own favour as trustees. There had to be a divesting of title from the personal representative in that capacity and a revesting in the same person but in the different capacity of trustee.

Judges:

Pennycuick J

Citations:

[1964] Ch 542

Statutes:

Administration of Estates Act 1925 36 66(3)

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate

Updated: 09 May 2022; Ref: scu.223515

In Re B: CA 2002

Where a child applied under the act as a dependent, he need show only that he did in fact receive sums by way of maintenance, and not additionally that the deceased had assumed any responsibility to provide maintenance.

Citations:

[2000] 1 All ER 665

Statutes:

Inheritance (Provision for Family and Dependeants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate, Children

Updated: 09 May 2022; Ref: scu.220640

Re Dennis deceased: ChD 1981

The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. ‘It is now clearly established that claims under the Act by persons other than spouses are limited to maintenance. The applicant has to show that the will fails to make provision for his maintenance: see Re Coventry (deceased) [1979] 2 All ER 408, [1980] Ch 461; affd [1979] 3 All ER 815, [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in Re Christie (deceased) [1979] 1 All ER 546, [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment the word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.’

Judges:

Browne-Wilkinson J

Citations:

[1981] 2 All ER 140

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Mentioned – Re Christie (deceased) 1979
In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
Mr Vivian Price QC said: ‘ ‘although reasonable financial provision means provision for the . .

Cited by:

Cited – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
Cited – Phizackerley v Revenue and Customs SCIT 14-Feb-2007
The deceased husband had been the sole wage earner. On retirement he bought a house which was placed in his and his wife’s name. They then severed the joint tenancy and created wills trusts each leaving their share in trust for the survivor. After . .
Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
Cited – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 09 May 2022; Ref: scu.214190

Pollok v Workman: 1900

A widow sought damages for an unauthorised post mortem carried out on her husband. The act was alleged to have been criminal and in the nature of an action of assythment.
Held: The case was competent, but was dismissed for other reasons.

Citations:

[1900] 2F 354

Jurisdiction:

Scotland

Cited by:

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

Wills and Probate, Scotland

Updated: 09 May 2022; Ref: scu.195013

Fea v Roberts: 2006

Expenditure on matters such as home improvements ‘could not be regarded as a dissipation or true ‘change of position”.

Judges:

Hazel Williamson QC

Citations:

[2006] WTLR 255

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.

Wills and Probate, Damages

Updated: 09 May 2022; Ref: scu.593142

Lewis v Cotton: 18 Dec 2000

(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked will.
Held: The imposition of a constructive trust based on mutual wills has two fundamental requirements:
(a) There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made).2 I will refer to this as the requirement for ‘corresponding wills’. Reference is sometimes made to ‘mirror wills’ and, more ambiguously and confusingly, to ‘mutual wills’.
(b) There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator

Judges:

Richardson P, Blanchard J,Tipping J

Citations:

[2000] NZCA 39, [2001] 2 NZLR 21, (2000) 20 FRNZ 86

Links:

NZLII

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.

Wills and Probate, Equity

Updated: 09 May 2022; Ref: scu.593131

Re Casmore: 1869

Citations:

(1869) LR 1 P and D 653

Jurisdiction:

England and Wales

Cited by:

Cited – Weatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 May 2022; Ref: scu.183798

Lewisham and Guys Mental Health NHS Trust v Andrews: EAT 21 Apr 1999

A claim of damages for race discrimination did not survive the claimant’s death, and the estate cannot continue the claim. There is no statutory basis for such a survival, and it had not been intended by Parliament. This differs explicitly from other types of claims under general employment law, but is similar for sex discrimination.

Citations:

Gazette 11-Aug-1999, Times 21-Apr-1999

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Discrimination, Damages, Wills and Probate

Updated: 08 May 2022; Ref: scu.83050

Gillett v Holt and Another: ChD 18 Jun 1998

To establish a proprietary estoppel against the testator’s promise to leave items in his will, some overt act over and above a promise, and reliance upon that promise, must be shown in order to displace the testator’s right to change his will.

Judges:

Carnwath J

Citations:

Gazette 15-Jul-1998, Times 18-Jun-1998, Gazette 01-Jul-1998, [1998] 3 All ER 917

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Estoppel

Updated: 08 May 2022; Ref: scu.80829

In re Bourke’s Will Trusts: ChD 1980

The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs and surviving issue’.
Held: The heirs were to be ascertained in accordance with pre-1926 law by virtue of section 132 of the 1925 Act. It was accepted that ‘issue’ (construed to mean children in the context) were to be ascertained in accordance with the law at the date of the testator’s death in 1943 (though it was not suggested that there were any illegitimate children born after 1969 who might have made a claim). Also, the classes of heirs and issue were in each case to be ascertained at the death of each half-sibling (1958 and 1969 respectively), and not at the date of the widow’s death in 1971.

Judges:

Slade J

Citations:

[1980] 1 WLR 539

Statutes:

Law of Property Act 1925 132

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Wills and Probate

Updated: 08 May 2022; Ref: scu.519436

In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964

Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’

Judges:

Ungoed-Thomas J

Citations:

[1964] 1 WLR 451, [1964] 1 All ER 771

Jurisdiction:

England and Wales

Cited by:

Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Evidence

Updated: 08 May 2022; Ref: scu.519362

Re Selby’s Will Trusts: ChD 1966

Judges:

Buckley J

Citations:

[1966] 1 WLR 43

Jurisdiction:

England and Wales

Citing:

Applied – Re Allen (dec’d) CA 1953
The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in . .

Cited by:

Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 May 2022; Ref: scu.510144

Re Loxston, Abbot v Richardson: ChD 2006

Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations necessary for a ‘rational, fair and just testament’. In this case, I do not think that Miss Loxston was able, without assistance, to recollect, understand or focus on all the persons whom she might reasonably wish to benefit at one time, and arrive at a rational decision as to which of them she wished to benefit and in what way. The limited range of beneficiaries in her last will, when compared to the range of beneficiaries in her previous will, is striking and is in my view due to the fact that she was incapable of concentrating on more than a very limited range of objects at one time without help being provided at the time she gave instructions for and executed the will.’

Judges:

Mr N Strauss QC

Citations:

[2006] WTLR 1567

Jurisdiction:

England and Wales

Cited by:

Cited – Schrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .
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

Updated: 08 May 2022; Ref: scu.471579

Powell v Osbourne: CA 1993

The deceased had separated from his wife and was cohabiting with Miss Osbourne. The deceased and Miss Osbourne purchased a property as joint tenants, with the assistance of a mortgage. The purchase price had been andpound;91,000 and the mortgage was andpound;85,000. The mortgage had been supported by an endowment policy, which would pay out after 15 years, or upon the earlier death of either party. The payment upon an earlier death was guaranteed to be at least andpound;85,000. As at the date of death, there was no sale or surrender value attaching to the policy. The deceased died, and Mrs Powell brought proceedings under the Act. Aside from any interest which the deceased had in the payment made under the policy and/or in the Tottenham property, his estate was valueless. Mrs Powell, the wife, argued that immediately before his death, the deceased could have severed the joint tenancy in respect of the property, which would have meant that he was entitled to a half-share of the property, but with the benefit of the half-share of the benefit of the policy monies.
Held: It could not be correct to regard, as the recorder in the court below had done, the policy as having only a negligible value, as to do that would be to evaluate it immediately before the deceased’s death, but without any reference to his imminent death.
As to section 9 of the 1975 Act, Dillon LJ said that its: ‘object is to bring in what could have been severed immediately before the date of death. If the deceased had in fact severed the beneficial joint tenancy immediately before his death, he would have thereupon become entitled to a half-share in the property subject to the mortgage but with the benefit of the half-share in the policy monies and, accordingly, on his death, his net estate would have been left with a clear half-share of the property, half the policy monies having gone to discharge his half-share of the mortgage.
I find it slightly startling therefore, and anomalous, that the effect of section 9 should be said to be that, if the court is merely ordering that the deceased’s share of the joint property at the value thereof immediately before his death is to be treated as part of his net estate, the result is that the half-share of the policy monies is to be treated as of no value at all or at best merely a token value. One is looking at the moment immediately before the deceased’s death, which is the last moment for severing the beneficial joint tenancy, and to give effect to that it is necessary, to my mind, to keep in mind that the deceased is indeed about to die the very next moment or very soon, almost immediately, thereafter. Therefore it cannot be right to value immediately before his death without regard to his assumed imminent death. On the actual facts, he died in hospital (where he had been admitted not long before) and the cause of death was cerebral haemorrhage and hypertension. That again seems to indicate that immediately before his death his actual prospects of surviving would have been virtually negligible.
Taking that into account, I conclude that the order should reflect that, though the property is subject to the mortgage, the half-share of the policy monies is also to form part of the net estate.’
Simon Brown LJ agreed, adding that the deceased was immediately before his death beneficially entitled to a joint tenancy of a property which included an endowment policy. The crucial issue raised in the proceedings was therefore this: what was the value of the deceased’s severable share of that policy immediately before his death? Given that immediately before death the fact of imminent death was by definition inevitable, that issue could in turn be restated thus: in determining the value of a severable share immediately before death, does the court have regard to, or does it ignore, the imminence of death? If it has regard to it, then to all intents and purposes the value of a life policy is the same as at death. If, however, the court is to ignore the deceased’s imminent death and logically therefore ignore even his generally adverse medical condition, then the value is very considerably less. He continued: ‘I have concluded that the reason, and indeed the sole reason, why the value is to be determined immediately before death is because that is the last moment at which severance is possible and it is the severable share that is to be valued. No such consideration arises under section 8 and that is why by section 8(2) the value is to be taken there as at the date of death. The result is that when the value of the property in question depends upon death, and that will only be the case when, as here, the property is a life policy, the value immediately before death will be effectively the same as the value upon death. So be it. That seems to me both fair and to accord with the literal language of section 9.’

Judges:

Dillon LJ, Simon Brown LJ

Citations:

[1993] 1 FCR 797, [1993] 1 FLR 1001

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 9

Jurisdiction:

England and Wales

Cited by:

Cited – Lim and Others v Walia ChD 26-Sep-2012
The court was asked: ‘where the proceeds of a fixed term joint life policy are paid over as the result of the death of the first of the joint lives insured, but in circumstances where it is to be assumed that the payment of the sum insured might . .
Cited – Lim (An Infant) v Walia CA 29-Jul-2014
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, Family

Updated: 08 May 2022; Ref: scu.510161