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 injured, but the house had been transferred into his parents’ names. The judge had found only an obligation on them to leave a one half interest to him on their death. The PRs asked him to be put to his election as to the interest he asserted.
Held: The claimant’s wish to ensure that his parents should have somewhere secure to live was not inconsistent with his retention of an interest in the house. The judge’s conclusion was against the weight of the evidence. On appeal new evidence was sought to be admitted in the form of a solicitor’s attendance note showing that the deceased had not anticipated that he did not own the house and would not inherit it. The claimant objected that it was inadmissible. Whatever the case law, the situation was now governed by the 1982 Act, which rendered the evidence admissible. The appeal failed.

Sir Andrew Morritt VC, Hooper LJ, Wilson LJ
[2008] EWCA Civ 1320, [2009] Fam Law 198, [2009] 1 FLR 391, [2008] 49 EG 77, [2009] WTLR 221
Administration of Justice Act 1982 21
England and Wales
CitedBrown v Gregson HL 1920
Viscount Haldane explained the doctrine of election: ‘The doctrine of election . . is a principle which the Courts apply in the exercise of an equitable jurisdiction enabling them to secure a just distribution in substantial accordance with the . .
CitedClementson v Gandy CA 1836
Lord Langdale MR rejected an attempt to invoke the doctrine of election: ‘But parol evidence is not to be resorted to, except for the purpose of proving facts which make intelligible something in the will which, without the aid of extrinsic . .
CitedPickersgill v Rodger 1876
Sir George Jessel MR observed obiter that even parol evidence was admissible in rebuttal of a legal presumption. . .
CitedCooper v Cooper HL 1874
Lord O’Hagan appeared to consider it sufficient that the evidence in rebuttal of a presumption in, whatever its nature, should be clear. . .
CitedMaxwell 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. . .
CitedWintour v Clifton 1856
The law adopts a strong presumption that a testator will have purported to dispose only of property of which he was free to dispose. . .
CitedGrissell 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 . .

Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 01 November 2021; Ref: scu.278347