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Wills and Probate - From: 1930 To: 1959

This page lists 76 cases, and was prepared on 02 April 2018.

 
Hughes v Robertson [1930] SC 394
1930


Scotland, Wills and Probate
The widow sought damages for an unauthorised autopsy carried out upon the body of her late husband.
1 Citers


 
Price v Gould (1930) 46 TLR 411
1930

Wright J
Wills and Probate
In relation to wills and settlements the legislature had used the word "family" "to introduce a flexible and wide term" so that brothers and sisters were to be treated as members of the family. The word was a "popular, loose and flexible expression", and not a technical term.
1 Citers



 
 In re Hagger; Freeman v Arscott; ChD 1930 - [1930] 2 Ch 190; [1930] 99 LJ Ch 492; [1930] 143 LT 610
 
Archer Shee v Garland 15 TC 693; [1930] UKHL 2; [1931] AC 212
15 Dec 1930
HL
Lord Buckmaster, Viscount Dunedin, Lord Warrington of Clyffe, Lord Tomlin, Lord Thankerton
Income Tax, Equity, Wills and Probate
The parties disputed the taxpayer's liability to income tax on income coming due to her on an American based family trust. Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject of a benefit devised or bequeathed to him or her under the will.
1 Cites

1 Citers

[ Bailii ] - [ Bailii ]
 
Edmunds v Armstrong Funeral Home Ltd [1931] DLR 676
1931

Harvey CJA
Commonwealth, Wills and Probate
(Canada - Court of Appeal of the Alberta Supreme Court) A widower claimed damages for the unlawful carrying out of an autopsy on the body of the claimant’s deceased wife. The claim was dismissed by the judge at first instance on the ground that it disclosed no cause of action. Held: The Court allowed the appeal: "If then, as seems clearly established, the plaintiff had the right to the custody and control of the remains of his deceased wife any unauthorised interference with that right, such as is alleged, was an invasion of his right and would give a cause of action."
1 Citers


 
Macdonald v Macdonald's Executrix [1932] UKHL 3; 1932 SC (HL) 79; 1932 SLT 381
28 Jun 1932
HL

Scotland, Wills and Probate
Claim of legitim.
[ Bailii ]

 
 In re Hawksley's Settlement; Black v Tidy; 1934 - [1934] Ch 384

 
 In the Estate of Benjamin, deceased; 1934 - [1934] 1 All ER 359; (1934) 150 LT 417
 
Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151
1935

Langton J
Wills and Probate
The burden that lies on the party seeking to prevent an express clause of revocation in a will from having the effect that would follow from the plain meaning of the words used. Langton J said: "It is a heavy burden upon a plaintiff who comes into this Court to say: "I agree that the testator was in every way fit to make a will, I agree that the will which he has made is perfectly clear and unambiguous in its terms, I agree that it contains a revocatory clause in simple words: nevertheless I say that he did not really intend to revoke the earlier bequests in earlier wills." Quite obviously the burden must be heavy upon anybody who comes to assert a proposition of that kind."
1 Citers


 
Re Sigsworth: Bedford v Bedford [1935] Ch 89
1935

Denning J, Clauson J
Constitutional, Wills and Probate
The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the 1925 Act. Held: Clauson J said that the forfeiture rule applied: "The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim's will precludes him from claiming a benefit conferred on him, in a case of his victim's intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver's case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own."
A person cannot bring an action based on his own wrong. As to the doctrine of judicial precedent "we fill in the gaps."
Administration of Estates Act 1925

 
Elliot v Joicey [1935] UKHL 3; 1935 SC (HL) 57; [1935] AC 209
14 Feb 1935
HL
Lord Tomlin
Wills and Probate, Scotland

[ Bailii ]
 
Re Ray's Will Trusts, Public Trustee v Barry [1936] Ch 520
1936


Wills and Probate
The testatrix, a nun, left her property to whoever was abbess of the convent at the date of her death. The nun who witnessed the will was later that abbess. The gift was challenged under the Act. Held: The act took effect where the gift was taken beneficially. The gift remained effective here because the gift was taken as trustee for the convent, and also that at the time the will was made the person who would eventually take, could not be ascertained.
Wills Act 1837 15


 
 Re Leguia (No. 2); CA 1936 - (1936) 155 LT 270

 
 Re Pfrimmer; 1936 - [1936] 2 DLR 460
 
Beresford v Royal Insurance Co Ltd [1937] 2 KB 197
1937
CA
Lord Wright MR, Romer and Scott LJJ
Wills and Probate, Insurance
Major Beresford had shot himself. The court considered the applicability of the forfeiture rule in a case involving a suicide: "suicide when sane is by English law a felony. This has been so from very early times. The law is thus succinctly stated by Stephen in his Digest of the Criminal Law (art. 319): "A person who kills himself in a manner which in the case of another person would amount to murder is guilty of murder, and every person who aids and abets any person in so killing himself is an accessory before the fact, or a principal in the second degree in such murder." Hence, where there has been what is called a suicide pact between two persons and one survives the survivor is guilty of murder . . This being the nature of felo de se by English law, and as the plaintiff, as personal representative, stands in the shoes of the assured who has committed, as it were, murder on himself, the present claim is equivalent technically to a claim brought by a murderer or his representative or assigns on a policy effected by the murderer on the life of the murdered man. In the latter case it is, we think clear that neither the murderer nor his estate nor his assigns could take a benefit under the policy. " Lord Wright discussed the ex turpi principle: "The principle (that the court will not allow a criminal or his representative to reap by the judgment of the court the fruits of his crime) has been applied....in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio . The maxim itself, notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition."
1 Citers



 
 In Re Craven's Estate; ChD 1937 - [1937] Ch 423
 
Re Keen; Evershed v Griffiths [1937] Ch 236; [1937] 1 All ER 452
1937


Wills and Probate


 
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
11 Jun 1937

Dixon J, Latham CJ
Wills and Probate, Contract, Trusts, Equity
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as "a trust which is declared by the law to affect the conscience of [the survivor's] executor and of the volunteers who are devisees or legatees under his will." and "Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof".
Dixon J set down the principles for mutual wills: "It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.”
1 Cites

1 Citers

[ Austlii ]
 
Re Sinclair [1938] Ch 199
1938

Sir Christopher Farwell
Insurance, Wills and Probate

1 Citers



 
 Beresford v Royal Insurance Co Ltd; HL 1938 - [1938] AC 586; [1938] 2 All ER 602
 
Bosch v Perpetual Trustee Co [1938] AC 463; [1938] UKPC 16
22 Feb 1938


Wills and Probate
(New South Wales) If a Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, by leaving the child in straitened financial circumstances, the Court must ensure that adequate provision is made for the child out of the estate, having regard to his need for maintenance and support.
1 Citers

[ Bailii ]

 
 Re Marsland; 1939 - [1939] Ch 820

 
 In re Vaux; CA 1939 - [1939] 1 Ch 465
 
Farley v Westminster Bank [1939] UKHL 1; [1939] AC 430; 1939 SLT 228; 1939 SC (HL) 6; [1939] 3 All ER 491
30 Jun 1939
HL
Lord Atkin
Charity, Wills and Probate, Scotland
The House was asked whether gifts in a will were expressed so vaguely as to be ineffective.
[ Bailii ]
 
Mastaka v Midland Bank Executor and Trust Co Ltd [1941] Ch 192; [1941] 1 All ER 236
1941


Wills and Probate
It is for the person making application for provision from an estate to establish that the deceased was domiciled in England and Wales.


 
 Re Inchcape; 1942 - [1942] Ch 394
 
Clayton v Ramsden [1943] AC 320; 112 LJCh 22; [1943] 1 All ER 16
1943
HL
Lord Russell of Killowen
Wills and Probate
A condition in the will was that the legatee, his daughter, should not marry a person "not of Jewish parentage and of the Jewish faith." Held: The condition was void for uncertainty. Lord Russell of Killowen said: "The courts have always insisted that conditions of defeasance, in order to be valid, should be so framed that the persons affected (or the court if they seek its guidance) can from the outset know with certainty the exact event on the happening of which their interests are to be divested."
. . And "Must both parents be of the Jewish race, or would one alone, and which, suffice? I confess myself unable to find any context which provides an answer; but the answer may well be that, in the absence of a context to the contrary, the true construction is that both parents must be of the Jewish race. But at this point the real difficulty begins, viz., the question of degree. The testator has given no information or clue as to what percentage or proportion of Jewish blood in the husband will satisfy the requirement that he should be of Jewish parentage. The daughter could never, before marrying the man of her choice, be certain that he came up to the requisite standard of Jewish parentage, nor could a court enlighten her beforehand. The standard is unknown, and incapable of ascertainment. It is this uncertainty of degree which prevents the divesting event from being seen precisely and distinctly from the beginning, and which makes this condition void for uncertainty. The uncertainty attaching to the requirement of Jewis parentage avoids the whole condition subsequent, with the result that no defeasance takes place."
1 Cites

1 Citers


 
Re Hughes [1943] Ch 296
1943


Wills and Probate

1 Citers


 
In re Hooper's Settlement, Phillips v Lake [1943] Ch 116
1943
CA

Wills and Probate, Trusts
A 1912 settlement created a trust 'for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof intestate and without having married'. It was argued that this meant the persons at the death of the settlor who were entitled under the statutes in force at the same time. Held: The argument failed. Under section 50(2) of the 1925 Act 1925, it meant the persons at the death of the settlor (in 1941) who were entitled under the statutes in force immediately before the commencement of the 1925 Act.
Administration of Estates Act 1925 50(2)
1 Citers


 
Perrin v Morgan [1943] UKHL 3; [1943] AC 399; [1943] 1 All ER 187
25 Jan 1943
PC
Lord Atkin , Lord Thankerton , Lord Russell Of Killowen, And Lord Romer
Wills and Probate
The Board was asked "whether, when the word "money" appears in an English will as the description of that of which the testator is disposing, the word, in the absence of any context or other circumstances proper to be considered as varying its meaning, must be interpreted according to an alleged fixed "rule of construction" which has been regarded by our courts as established and binding for many generations past"
[ Bailii ]

 
 Drummond's Judicial Factor v LA; SCS 9-May-1944 - [1944] ScotCS CSIH_1
 
Chichester Diocesan Board of Finance v Simpson [1944] UKHL 2; [1944] AC 341
21 Jun 1944
HL

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

[ Bailii ]
 
In re Allen's Estate [1945] 2 All ER 264
1945


Wills and Probate
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.
1 Citers


 
Re Marshall's Will Trusts [1945] Ch 217
1945

Cohen J
Wills and Probate
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."
1 Citers


 
Devlin's Tustees v Breen [1945] UKHL 1; 1945 SC (HL) 27; 1945 SN 10; 1945 SLT 216
25 Jan 1945
HL

Scotland, Wills and Probate

[ Bailii ]
 
Judah v Isolyne Shrojbashini Bose and Another; Judah v Momin Zahidi and Another (Consolidated Appeals) [1945] UKPC 11
1 Mar 1945
PC
Thankerton, Simonds, Goddard LL, Sir Madhavan Nair, Sir John Beaumont
Commonwealth, Wills and Probate
Lucknow
[ Bailii ]
 
Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others [1946] NZLR 614
1946

Fair J
Wills and Probate, Commonwealth
(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: "but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi- that is, that the testatrix did not intend to sign this document and that this document was never intended by her or anyone to be her will. This would appear, upon careful examination, to be a very technical basis for its rejection, and upon an exact appreciation of the true facts, to lack substance. True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister. She adopted it believing that it expressed her intentions in every respect. It does in most, and can be read as carrying out her intentions. It appoints the executor she intended to appoint in the exact terms she intended to appoint it. That in itself if it stood alone would be enough, apart from this formal objection, to entitle it to probate…It also disposes of the residue after the life interest in the exact terms except for the Christian name. There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground. The present will seems to us to differ from such copy only in degree and not in substance. No doubt the circumstances of the recital with the wrong Christian name would call for explanation… But the fact that the paper put before the testatrix was different from that which she thought she was signing should not, we think, prevent that part of the document which she wished and believed, and which was, in fat, included, being her testamentary act. The testatrix really did know and approve of the effective provisions contained in it."
1 Citers


 
Rees v Hughes [1946] KB 517
1946


Wills and Probate
The need to arrange for funerals is a common law obligation "in the nature of a public duty".
1 Citers


 
Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others [1946] AC 508; [1946] UKPC 1
30 Jul 1946
PC
Lord Thankerton, Lord du Parcq, Sir Madhavan Nair
Constitutional, Wills and Probate, Limitation, Commonwealth
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity appeared to be subsequently accepted. The committee could not reverse a finding of fact save in the case of a manifest blunder by the lower court, or where there were concurrent and contradictory findings of separate lower courts, or in exceptional cases. The court should be careful to respect the traditions and systems of the countries from which appeal was made. The appellant had been in possession of the estate for many years. However in Hindu law, her possession could not be adverse to that of her husband even though he might be presumed to be dead. Held: The Board will only in exceptional circumstances review evidence for a third time. Exceptional circumstances might include a miscarriage of justice or violation of a principle of law or procedure: "That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law."
1 Cites

1 Citers

[ Bailii ] - [ PC ]
 
In re Goldsmith [1947] Ch 339
1947

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


 
Battan Singh v Amirchand [1948] AC 161
1948
PC
Lord Normand
Wills and Probate, Commonwealth
(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval. Held: Lord Normand discussed and approved the implication of Parker v Felgate: "That case decided that if a testator has given instructions to a solicitor at a time when he was able to appreciate what he was doing in all its relevant bearings, and if the solicitor prepares the will in accordance with these instructions, the will will stand good, though at the time of execution the testator is capable only of understanding that he is executing the will which he has instructed, but is no longer capable of understanding the instructions themselves or the clauses in the will which give effect to them." and "A testator may have a clear apprehension of the meaning of the draft will submitted to him and may approve it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness is an inducing cause of his choosing strangers to be his legatees, the will is invalid."
1 Cites

1 Citers


 
In re Avard (dec'd) [1948] Ch 43; [1948] Ch 43
1948


Wills and Probate

1 Citers



 
 In re Waring, Westminster Bank v Burton-Butler; ChD 1948 - [1948] Ch 221

 
 In re George's Will Trusts; ChD 1949 - [1949] 1 Ch 154
 
In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose [1949] Ch 78
1949
ChD
Jenkins J
Company, Wills and Probate, Equity
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death. Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective
1 Citers



 
 In re Rees; CA 1950 - [1950] 1 Ch 204
 
Scarisbrick's Will Trusts, In re [1950] 1 All ER 143; [1950] Ch 226
1950
ChD
Roxburgh J
Wills and Probate, Charity
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.
1 Cites

1 Citers



 
 Earl of Moray, (Petitioner); HL 1950 - 1950 SC (HL) 281

 
 In the Goods of McLean; 1950 - [1950] IR 180
 
Ministry of Health v Simpson; In re Diplock dec [1951] AC 251; (1950) 2 All ER 1137
1950
HL
Simonds L
Equity, Wills and Probate
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."
1 Cites

1 Citers



 
 In the Estate of Wayland; 1951 - [1951] 2 All ER 1041
 
In re Scarisbrick's Will Trusts, Cockshott v Public Trustee [1951] 1 All ER 822 CA; [1951] Ch 622
1951
CA
Jenkins LJ
Wills and Probate, Charity
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: Such a trust could be charitable.
The dividing line between a charitable trust and a private trust 'depended on whether as a matter of construction the gift was for the relief of poverty amongst a particular description of poor people [charitable] or was merely a gift to particular poor persons, the relief of poverty among them being the motive of the gift [private]' The fact that the gift took the form of a perpetual trust would no doubt indicate that the intention of the donor could not have been to confer private benefits on particular people whose possible necessities he had in mind ; but the fact that the capital of the gift was to be distributed at once did not necessarily show that the gift was a private trust.

Jenkins LJ set out five general propositions upon whether a trust for the relief of poverty was charitable, saying: (i) It is a general rule that a trust or gift in order to be charitable in the legal sense must be for the benefit of the public or some section of the public; . . (ii) An aggregate of individuals ascertained by reference to some personal tie (e.g. of blood or contract) such as the relations of a particular individual, the members of a particular family, the employees of a particular firm, the members of a particular association, does not amount to the public or a section thereof for the purposes of the general rule; . . (in) It follows that according to the general rule above stated a trust or gift under which the beneficiaries or potential beneficiaries are confined (that is an important word) to some aggregate of individuals ascertained as above is not legally charitable even though its purposes are such that it would have been legally charitable if the range of potential beneficiaries had extended to the public at large or a section thereof (e.g. an educational trust confined as in Re Compton to the lawful descendants of three named persons, or, as in Oppenhein v. Tobacco Securities Trust Co., Ltd. to the children of employees of former employees of a particular company); . . (iv) There is, however, an exception to the general rule in that trusts or gifts for the relief of poverty have been held to be charitable even though they are limited in their application to some aggregate of individuals ascertained as above, and are, therefore, not trusts or gifts for the benefit of the public or a section thereof. This exception operates whether the personal tie is one of blood (as in the numerous so-called "poor relations" cases, to some of which I will presently refer) or of contract . ."
1 Cites

1 Citers



 
 Birch v Treasury Solicitor; CA 1951 - [1951] Ch 298
 
Re North dec'd; North v Cusdon [1952] 1 All ER 609; [1952] TLR 674
1952
ChD
Wynn Parry J
Wills and Probate


 
In re Gansloser's Will Trusts [1952] Ch 30
1952
CA
Lord Evershed MR
Wills and Probate
A 1929 will created a trust in favour of the testator's widow's 'relatives'. Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the beneficiaries are to be ascertained at the death of the person in question, but also found an exception to the principle, applicable here, holding that the relatives were to be ascertained at the testator's death. That exception resulted in both the law and the facts being ascertained at the death of the testator, before the death of the widow whose relatives were beneficiaries. It also resulted in the facts being ascertained at 1929 under pre-1926 law, a statute of King Charles II.
1 Citers


 
Re Brander [1952] 6 WWR (NS) 702
1952


Commonwealth, Wills and Probate
(British Columbia Supreme Court)
1 Citers


 
In the Goods of Newland, deceased [1952] P 71
1952


Wills and Probate
The judge upheld the nuncupative will of an apprentice in the merchant navy while on shore leave (which was, at longest, from 4 July to 1 August 1944) from the troopship on which he was employed.
1 Citers


 
In the estate of Wallace, dec'd; Solicitor of the Duchy of Cornwall v Batten and Another [1952] Times LR 925
1952

Devlin J
Wills and Probate
The deceased shortly before his death wrote and signed a statement called his "Last wish" which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was not read over or summarised to him before he executed it and Devlin J was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the "Last wish" and had executed the will in the understanding that it gave effect to its provisions.
The court considered the necessary mental capacity of a testator when executing a will: "If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely upon the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions."
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Re Wynn (deceased) [1952] Ch 271
1952

Danckwerts J
Wills and Probate
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public policy, and: "anything which attempts to deprive the parties of their right to bring an action is unlawful as an attempt to oust the jurisdiction of the court".
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In the Goods of Wilson, Wilson v Coleclough [1952] P 92
1952
ChD
Havers J
Wills and Probate
The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April he made a nuncupative will. Held. The court upheld the will. Havers J said that it had been made "in contemplation of sailing on that ship on that particular voyage, and . . he was preparing for that voyage."
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 Dundee General Hospital Board of Management v Bell's Trustees; HL 26-Mar-1952 - [1952] 1 All ER 896; [1952] UKHL 3

 
 Dundee Hospitals Board v Walker; HL 26-Mar-1952 - [1952] UKHL 1; 1952 SLT 270; [1952] 1 All ER 896

 
 Otter v Church Adams Tatham and Co; ChD 1953 - [1953] Ch 280

 
 Re Allen (dec'd); CA 1953 - [1953] Ch 810; [1953] 1 All ER 308
 
Bowler and John Mowlam and Co [1954] 1 WLR 1145
1954


Wills and Probate
If a Claimant brings an action in a representative capacity as administrator then that action is a nullity if he was not at the date the action was commenced an administrator with a proper grant.

 
Muriel Amarasekera Nee Wijesinghe v Hettiaratchige Dona Adliet Ratnayake and Others [1954] UKPC 14
22 Mar 1954
PC

Wills and Probate
(Ceylon)
[ Bailii ]
 
Draper v Thomason [1954] ScotCS CSIH_1; 1954 SLT 222; 1954 SC 136
26 Mar 1954
SCS

Wills and Probate
Whether letter amounted to a will
[ Bailii ]

 
 Ross's Judicial Factor v Martin; HL 4-Mar-1955 - 1955 SLT 117; [1955] UKHL 6; 1955 SC (HL) 56
 
Chard v Chard (otherwise Northcott), Haye, Winstanley, Lord and Norris [1955] 3 WLR 954; [1956] P 259; [1955] 3 All ER 721
1956
FD
Sachs J
Wills and Probate
If a person has not been heard of for seven years by those who would be likely to hear from them then, if proper inquiries have been made and there is no evidence to the contrary, the person is presumed to be dead. However, the mere fact of a seven year absence is insufficient; it is the fact that the absence remains unaccounted for when one would not reasonably expect it to be if the person were alive that forms the basis of the presumption.
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Judah I Laredo and Another v Samuel Abraham Marrache [1956] UKPC 38
19 Nov 1956
PC
Viscount Simonds, Norman, Oaksey LL, de Silva
Commonwealth, Wills and Probate
Gibraltar
[ Bailii ]

 
 Grey v Pearson; HL 9-Mar-1957 - [1857] 6 HL Cas 61; [1857] EngR 335; (1857) 6 HLC 61; (1857) 10 ER 1216
 
Miller's Trustees v Miller 1958 SC 125
1958

Lord Patrick, Lord Justice-Clerk Thomson
Scotland, Wills and Probate
The issue was whether the rule of conditio si institutus sine liberis decesserit operated and, if so, whether two nephews who predeceased the date of a codicil which the testator made to his trust disposition and settlement were to be regarded as institutes instead of the persons whom he had instituted by his original settlement, in other words whether it is necessary to take into account a codicil which does not alter or affect the relevant provisions in the original trust disposition and settlement. All that the testator did by his codicil was to vary the administrative provisions of the settlement by appointing new trustees and executors, as all but one of the persons named in the settlement had died. The codicil ended with the words "and with these alterations I confirm my said trust disposition and settlement." Held: The answer depended on which date was to be taken as the critical date - the date of the trust disposition and settlement which he executed in 1936, or the date of the codicil which he made in 1946. Rejecting the argument that the effect of the quoted words was that 1946 was the crucial date for the purposes of the conditio. It was a highly technical and unrealistic argument, as the effect of the codicil was that the original beneficial provisions remained intact. It was a question of the intention of the testator. As the testamentary provisions were not innovated upon in any way by the codicil but referred to in it only in order to confirm them, the testator showed no intention of telling his trustees that they were to treat his testamentary provisions as if they were made for the first time in 1946.
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Re Tarnpolsk [1958] 1 WLR 1157
1958
ChD
Dankwerts J
Wills and Probate
It was impossible to give sufficient meaning to the phrase “a person of the Jewish race”, and the condition failed for conceptual uncertainty, even in a condition precedent.
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Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284
1959
HL
Viscount Simonds
Wills and Probate
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend of Mrs Wells. Mr Nye was appointed sole executor. Mrs Wells left the bulk of her large estate to him. The only evidence of her instructions for the will was that given by Mr Nye, in whose offices the will and codicil were executed. On the death of Mrs Wells probate of the will and codicil was obtained by Mr Nye.
Lt Col Wintle, as assignee of a person entitled in the event of the intestacy of Mrs Wells, attacked the validity of the will and codicil. He did not do so by advancing a positive case, such as lack of capacity, undue influence or fraud. Instead, he put Mr Nye to proof that Mrs Wells knew and approved the contents of her will and codicil. The case was tried by Barnard J with a jury, who found in favour of the will and codicil. By a majority the Court of Appeal dismissed the appeal brought on the ground that the judge had misdirected the jury. In the House of Lords Col Wintle appeared in person. Held: The appeal succeeded, on the strict ground of a misdirection to the jury by the trial judge. Directions were given for the revocation of the will so far as it related to the gift of residue to the solicitor.
The court ought not to pronounce in favour of the validity of a will where the circumstances under which the will was prepared raised a well grounded suspicion that it did not express the testator's mind. The court must be vigilant and jealous in circumstances in which a person who has prepared - or, in the vernacular, has "had a hand" in the preparation of - a will under which he or she takes a benefit and seeks to admit it to probate. Viscount Simonds said: "It is not the law that in no circumstances can a solicitor or other person who has prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed".
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Re Cutliffe's Estate [1959] P 6
1959
CA
Morris LJ, Hodson LJ
Wills and Probate, Costs
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English. Held: The testator himself had not been responsible for the litigation. Morris LJ said: "Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised."
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 Re Endacott; CA 12-Oct-1959 - [1960] Ch 232; [1959] EWCA Civ 5; [1959] 3 All ER 562; [1959] 3 WLR 799
 
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