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Wills and Probate - From: 1900 To: 1929

This page lists 58 cases, and was prepared on 02 April 2018.

 
Pollok v Workman [1900] 2F 354
1900


Wills and Probate, Scotland
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.
1 Citers


 
In re Furness [1901] 2 Ch 346
1901


Wills and Probate
A legacy may be adeemed as a portion "when a parent by will gives a legacy to a child . ." It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift.
1 Citers


 
In re The Goods of Moore [1901] ( 44
1901


Wills and Probate

1 Citers


 
Pereira v Pereira; Perera v Perera [1901] UKPC 16; [1901] AC 354; [1901] 70 LJPC 46; [1901] 84 LT 371
23 Mar 1901
PC
Lord MacNaghten, Lord Uthwatt
Wills and Probate, Commonwealth
The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given. Held: It is sufficient if the testator, at the moment of execution, believes the Will to be and if the Will is in accordance with the instructions previously given.
The Board saw no reason in this case to question evidence that the testator was of sound mind when he executed the will, but cited Parker to say that the will might have remained effective if executed in accordance with the conditions in Parker -v- Felgate.
As to the evidence of the attesting witnesses: "The question, therefore, comes to this: Having regard to all the circumstances of the case, ought the diagnosis of Dr. Fonseka and Dr. Rockwood, who were not present when the will was executed, to outweigh and prevail over the testimony of eye-witnesses based upon the evidence of their own senses?"
Lord Uthwatt said: "Reports of judicial and parliamentary proceedings and, maybe, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that a particular report should be published, privilege will attach."
1 Cites

1 Citers

[ Bailii ]

 
 In re Beaumont; ChD 1902 - [1902] 1 Ch 892
 
Twist v Tye [1902] P 92
1902

Sir Gorell Barnes
Wills and Probate, Costs
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.
1 Cites

1 Citers


 
In re Groos Estate [1904] P 269
1904


Wills and Probate

Wills Act 1861 3
1 Citers


 
Lewis v Lewis [1904] Ch 656
1904


Wills and Probate
An executor owes no duty to inform a legatee of the terms of his legacy.
1 Citers


 
Re Croxon [1904] 1 Ch 252
1904


Wills and Probate
A Royal Licence to take up a coat of arms specified by the testator could not be obtained because it could not be shown that the testator was entitled to those particular arms.
1 Citers


 
Townsend v Moore [1905] P 66
1905

Vaughan Williams LJ
Wills and Probate
The court was asked how far a second will had revoked an earlier one. Held. It was necessary for the court to construe the subsequent will. If the terms of the subsequent will are ambiguous, it is necessary for the court to act as a court of construction to determine the extent, if any, of the inconsistency.
Vaughan Williams LJ said: "Then Sir James Hannen (in Jenner v Ffinch) proceeded to point out that, if the second document is ambiguous, parol evidence of the surrounding circumstances will be admissible in order to enable the Court to determine the intention of the second document. Speaking for myself, I should hesitate to say that that dictum would extend to the admission of parol evidence of the intention of the testator according to the view of those who were present at the time of the execution of the testamentary document. I think the basis for this principle (which, indeed, is plainly laid down in the first case which I cited by Sir James Wilde, that when there is, as between two documents properly executed in accordance with the Wills Act, the question to be solved how far the one affects the other, the Probate Court must to that extent and for this purpose act as a Court of construction) is this – that if a document purports to be testamentary, and it is executed in accordance with the provisions of the Wills Act, prima facie that document ought to be admitted to probate. In order to reject such a document you have to displace that presumption."
1 Citers


 
Clarke v London General Omnibus Co Ltd [1906] 2 KB 648
1906


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

1 Citers



 
 Baudains v Richardson; PC 1906 - [1906] AC 169
 
M'Caig v University of Glasgow [1906] ScotCS CSIH_2; 1907 SC 231; (1906) 14 SLT 600
18 Dec 1906
SCS
Lord Stormonth-Darling
Scotland, Wills and Probate
The heir in heritage of the late Mr M'Caig of Oban seeks to establish her rights as such, notwithstanding the fact that he has made a testament in favour of trustees, and has directed them to hold his estate and to apply the proceeds in doing certain things on the estate. She does not impugn the deed on the ground of mental incapacity. She attacks it on the ground that it does not give any disposal of the estate for the benefit of any person or class of persons, and is in no better position to exclude her than if it had simply disinherited her without putting anyone in her place, which it is plain would not have invalidated her right as heir.
[ Bailii ]
 
Spiers v English [1907] P 122
1907

Sir Gorrell Barnes P
Wills and Probate, Costs
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if the circumstances lead reasonably to the investigation in regard to a propounded document. In the latter case the costs may be left to be borne by those who incurred them. In the former the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.
Sir Gorell Barnes P said: "In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation."
1 Citers


 
Re Buckton, Buckton v Buckton [1907] 2 Ch 406
1907
ChD
Kekewich J
Wills and Probate, Costs
An application was made for the payment of the costs of the action from the deceased's estate. Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek guidance from the Court in order to ascertain the interests of the beneficiaries: and see Rules of the Supreme Court 1971, O 66 r 9. Second, beneficiaries may apply to the court by reason of some difficulty of construction or administration that would have justified an application by the trustee, but where it was not convenient for the trustee to apply. In both of those situations, the costs of all parties can be characterised as necessarily incurred for the benefit of the estate. Provided the application was not, in substance, unreasonable, the court might direct costs to be taxed as between solicitor and client and paid out of the estate. Mr Justice Kekewich recorded that: "In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts. " In such cases the costs of all parties are necessarily incurred for the benefit of the estate and the court directed them to be taxed as between solicitor and client and paid out of the estate.
1 Citers



 
 Re Meyer; 1908 - [1908] P 353

 
 Doodeward v Spence; 1908 - [1908] 6 CLR 40

 
 Weir v Crum-Brown; HL 6-Feb-1908 - [1908] AC 162; [1908] UKHL 2; 1908 SC (HL) 3; (1908) 15 SLT 857
 
Strickland and Others v Strickland [1908] UKPC 32; [1908] AC 551
8 Jul 1908
PC

Commonwealth, Wills and Probate
Malta
[ Bailii ]
 
Re Ofner; Samuel v Ofner [1909] 1 Ch 60
1909


Wills and Probate
Amongst other legacies to various nieces and a nephew, the testator gave a legacy "to my grandnephew Robert Ofner" of £100 and to another "grandnephew Curt Ofner" of £100. However he had no such grandnephew or other relative of the name of "Robert" Ofner, but he had four grandnephews, Alfred Ofner and Curt Ofner, who was correctly so described in the will, Richard Ofner, a brother of Alfred Ofner, and Botho Ofner. It was proposed to put in evidence a memo randum in the testator's handwriting that had been given by him to his solicitors as instructions for his will, in which the following words occurred: "to my grandnephew Dr. Alfred Ofner £200 to his brother Robert Ofner £100". Held the document was admissible, not as evidence of intention, but to explain what the testator meant by “my grandnephew Robert Ofner."
1 Citers


 
Gill v Gill [1909] P 157
1909


Wills and Probate
The court was asked whether the deceased's will had been revoked when destroyed by his wife. Held: A failure by the testator to stop her destroying his will did not amount to ‘direction’ that it should be destroyed, and nor could his subsequent ratification of the wife’s act amount to a direction to revoke it, since the intentention to revoke the will must exist at the same time as the act of revocation.


 
 In the Estate of Cunigunda Crippen deceased; 1911 - [1911] P 108
 
In the Estate of Borger Deceased [1912] VLR 310
1912

Hodges J
Wills and Probate
Supreme Court Victoria - Will - Construction - Legacy, lapse of - Death of beneficiary "before he shall have become entitled," meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving brother or sister should attain the age of twenty-one years, and thereafter for the use and benefit of J. absolutely, charged, however, with the payment of oertain legacies to oertain named brothers and sisters. The testator then directed that" in the event of any of my said brothers or sisters dying before he she or they shall have become entitled under this my will the share or shares of such my said brothers and sisters so dying shall be divided equally amongst those of my brothers and sisters them surviving with the exception of his brother J. Held: that the word" entitled" meant "entitled in possession," and that therefore a legacy to one of the sisters who had survived the testator, but had died before his youngest brother attained twenty-one, was not payable to that sister's executor.
1 Citers

[ Austlii ]
 
In Re Shields [1912] 1 Ch 551
1912

Warrington J
Wills and Probate
Warrington J said: "By ademption is meant 1 think in this context a transaction to which the donee as well as the donor is a party." Since the testator's intention had not been communicated to the legatee in his lifetime there was no ademption.
1 Citers


 
George Attenborough and Son v Solomon [1912] UKHL 4; [1913] AC 76
19 Nov 1912
HL
Viscount Haldane LC
Wills and Probate, Land
The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative because of the assents of them made by her executors.
1 Citers

[ Bailii ]

 
 In the Estate of Julian Bernard Hall deceased; In re RH; CA 1914 - [1914] P 1

 
 Hewson v Shelley; CA 1914 - [1914] 2 Ch 13
 
Hall v Knight and Baxter [1914] P 1
1914
CA
Cozens-Hardy MR, Hamilton LJ
Wills and Probate
A man named Julian Hall kept a woman named Jeannie Baxter and had made a will in her favour. They had had many quarrels. He had promised to marry her but had not done so. On April 13, 1913, she took his revolver and, whilst he was in bed, shot him dead with four or five shots. She was acquitted of murder but convicted of manslaughter. Held: The forfeiture rule applied to a person convicted of manslaughter.
Cozens-Hardy MR, applying Cleaver said: "It is said that that was a case of murder, and not manslaughter. I entirely fail to appreciate that distinction. It was a case of felony and I see no reason to draw a distinction between murder and manslaughter in a case like this."
Hamilton LJ said: "The principle can only be expressed in that wide form. It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter".
1 Citers


 
Re Heys [1914] P 192
1914


Wills and probate
Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will nonetheless be admitted to probate.
1 Citers



 
 Farrell v The National Trust Company Limited and Others; PC 7-Apr-1914 - [1914] UKPC 27
 
In the Goods of Sarah Hale [1915] 2 IR 362
1915

Madden J
Wills and Probate
The deceased was a typist employed by the Cunard Steamship Company. Her permanent assignment was as a typist on board the Lusitania but, when not working on the ship, she worked in the company's offices in Liverpool. She made her will while working at those offices at a time when, in the view of the judge, she was definitely engaged to going on the next voyage of the vessel. That turned out to be the fatal voyage on which the Lusitania was sunk by a torpedo fired from a German submarine. Held: She had been "at sea" for the purposes of being able to make a nuncupative will.
1 Citers



 
 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children; HL 1915 - [1915] AC 207
 
In re Raven; Spencer v National Association for the Prevention of Consumption and Tuberculosis [1915] 1 Ch 673
1915


Wills and Probate
Extrinsic evidence of the identity of a beneficiary can only be admitted where there is a description applying indifferently to more than one person or society. It was contrary to public policy to accept wording in a will which purported to oust the jurisdiction of the court.
1 Citers


 
Reid's Trustees v Dawson [1915] UKHL 4; 1915 SC (HL) 47; 1915 1 SLT 291
12 Mar 1915
HL
Earl Loreburn
Scotland, Wills and Probate

[ Bailii ]

 
 Walker v Whitwell; HL 15-Dec-1915 - [1915] UKHL 6; 1916 SC (HL) 75; 1916 1 SLT 2

 
 Gregson v Taylor; ChD 1917 - [1917] P 256

 
 Re Stable, deceased. Dalrymple v Campbell; 1918 - [1918] P 7
 
Turnbull's Trustees v Lord Advocate [1918] UKHL 3; 1918 1 SLT 112; 1918 SC (HL) 88
29 Jan 1918
HL

Scotland, Wills and Probate, Trusts

[ Bailii ]
 
In re Parkard [1920] 1 Ch 596
1920


Wills and Probate

1 Citers


 
In re Gardner [1920] 2 Ch 523
1920


Wills and Probate, Family
A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.
1 Citers



 
 In Re Eardley; 1920 - [1920] 1 Ch 397
 
Hohler v Aston [1920] 2 Ch 420
1920

Sargant J
Wills and probate, Litigation Practice, Contract
A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance Held: The action succeeded. Sargant J: "the third parties, of course, cannot themselves enforce a contract made for their benefit but the person with whom the contract is made is entitled to enforce the contract." Mr. Hohler took no benefit under the contract but was allowed to recover.
1 Citers


 
Craig v Lamoureux [1920] AC 349
1920
HL
Viscount Haldane
Undue Influence, Wills and Probate
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: "As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an inference which can justifiably be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean . . It is also important in this connection to bear in mind that which was laid down by Sir James Hannen in Wingrove v Wingrove (1885) 11 PD 81 and quoted with approval by Lord MacNaughten in delivering the judgment of this Board in Baudains v Richardson (1906) AC 169, and it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained."
1 Cites

1 Citers



 
 Stewart v Maclaren; HL 18-Jun-1920 - [1920] UKHL 4; 1920 2 SLT 134; 1920 SC (HL) 148
 
Dr Barnardo's Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts [1921] 2 AC 1
1921
HL
Viscount Cave, Viscount Finlay
Wills and Probate
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The income received was eventually handed over to the charity as part of the residue, and the charity argued that it should be entitled to a repayment of the tax deducted at source. Held: The charity was not entitled to repayment of the tax.
Viscount Cave stated: "When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him: but until that time he had no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors and are applicable by them as a mixed fund for the purposes of administration."
Viscount Finlay said: "It appears to me that the present case is really decided by the decision of this House in Lord Sudeley's Case. It was pointed out in that case that the legatee of a share in a residue has no interest in any of the property of the testator until the residue has been ascertained. His right is to have the estate properly administered and applied for his benefit when the administration is complete. The income from which this income tax was deducted was not the income of the charity. It was the income of the executors."
Lord Atkinson said: "The case of Lord Sudeley v. Attorney-General . . conclusively established that until the claims against the testator's estate for debts, legacies, testamentary expenses, etc., have been satisfied, the residue does not come into actual existence. It is a non-existent thing until that event has occurred. The probability that there will be a residue is not enough. It must be actually ascertained."
1 Cites

1 Citers


 
Re Beech [1923] P 46
1923

Salter J
Wills and Probate
Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: "The contention is that if a will does not have the effect intended the testator cannot be said to have known and approved its content. I think that that contention is fallacious and based on a confusion between the terms and the effect of the document. A testator cannot give a conditional approval to the words which had been put in his intended will by himself or by another for him. He cannot say "I approve those words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them". He must find, or employ others, to find apt words to express his meaning; and if knowing the words intended to be used he approves and executes the will then he knows and approves the contents of his will and all the contents even though such approval may be due to a mistaken belief of his own or to honestly mistaken advice from others as to their meaning and legal effect: Morrell v Morrell 7PD 68".
1 Citers



 
 In re Goodwin; Ainslie v Goodwin; ChD 1924 - [1924] 2 Ch 26; [1924] 93 LJ Ch 331; [1924] 130 LT 822; [1924] 68 SJ 478

 
 In re Englebach; 1924 - [1924] 2 Ch 348

 
 Re Oldham; Hadwen v Myles; 1925 - [1925] Ch 75; 94 LJCh 148; 132 LT 658
 
Re Ware [1926] KIN 163
1926


Wills and Probate
No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such.
1 Cites

1 Citers


 
Re Quinton Dick [1926] Ch 992
1926


Wills and Probate

1 Citers


 
Re Plant deceased [1926] P 139
1926

Scrutton LJ, Lord Hanworth MR
Wills and Probate, Costs
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 the estate, without making a very strong case on [the] facts. The lure of "costs out of the estate" is responsible for much unnecessary litigation."
1 Cites

1 Citers



 
 Inland Revenue Commissioners v Hawley; 1928 - [1928] 1 KB 578
 
Thomas v Jones Unreported, 06 March 1928
6 Mar 1928

Lord Merrivale, President
Wills and Probate

1 Cites

1 Citers


 
Gray v Perpetual Trustee Co Ltd [1928] AC 391; [1928] UKPC 56
12 Jun 1928
PC
Viscount Haldane
Wills and Probate
The Board considered a claim that wills had been mutual. Viscount Haldane said: "The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the conclusion that an agreement to constitute equitable interest has been shown to have been made. As they have already said, the mere fact of making wills mutually is not, at least by the law of England, evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law."
1 Citers

[ Bailii ]
 
In the Estate of Austin (1929) SJ 545
1929

Swift J
Wills and Probate
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.
1 Citers


 
Re Raine [1929] 1 Ch 716
1929


Trusts, Wills and Probate
Intermediate income is not payable on a contingent pecuniary legacy unless there is an express testamentary provision to the contrary. The interest falls into residue until the legacy vests.

 
Blackwell v Blackwell [1929] UKHL 1; [1929] AC 328
24 Jan 1929
HL

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