T died in 1858, and by his will devised his estates on strict successive trusts, directing beneficiaries to take the surname and arms of Dick. Should a beneficiary fail to comply within three months, the bequest should fail for that person and pass to the next as if that person was deceased. After one tenant died without issue, it took a year to discover the next heir in Canada.
Held: The beneficiary had no knowledge of the bequest or its terms, and could not therefore be said to have neglected or refused to comply with its conditions. The terms were not equivalent to ‘fail’. The tenant in tail had not therefore forfeited the estate.
Romer J said: ”The expression ‘refuse or neglect’ involves the idea of some exercise of discretion, some exercise of will, on his part’ (per Warrington J in Re Edwards (supra)). If the word ‘neglect’ connotes the exercise of the will it cannot include a failure or omission which is due to ignorance of the provisions of the document, and which therefore does not result from any operation of the mind.’
Judges:
Romer J
Citations:
[1926] Ch 992
Jurisdiction:
England and Wales
Cited by:
Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.
Trusts, Wills and Probate
Updated: 14 July 2022; Ref: scu.639678
