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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Wills and Probate - From: 1980 To: 1984

This page lists 20 cases, and was prepared on 02 April 2018.

 
In re Bourke's Will Trusts [1980] 1 WLR 539
1980
ChD
Slade J
Trusts, Wills and Probate
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.
Law of Property Act 1925 132
1 Citers


 
In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd [1980] 1 Ch 444; [1980] 1 All ER 266
1980

Robert Megarry VC
Wills and Probate, Family
The words in the section 'immediately before' in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place at the time of the death. In this case a short stay in hospital prior to death is not sufficient to prevent the claim. "The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word 'immediately' in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.
The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this, rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word 'immediately' plainly confines the court to the basis of the arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended and the state of affairs under it."
Inheritance (Provision for Family and Defendants) Act 1975 1
1 Citers


 
Re Grant's Will Trusts [1980] 1 WLR 360
1980
ChD
Vinelott J
Trusts, Wills and Probate
The deceased left property to the Labour Party property committee. Held: A trust created by making a gift to the members of an unincorporated assoication as at the date of the gift can be wound up only if under the rules, the members could, at any time, resolve to terminate the trust and distribute the fund to themselves. The gift therefore failed. It could not be construed as a gift to existing members (i.e. it did not fall within category (1) of Neville Estates Ltd v Madden), and that in order to fall within category (2) it was essential that the members of the association for the time being should be free to dispose of it in any way they thought fit, including distributing it amongst themselves.
1 Cites

1 Citers


 
Ross v Caunters (a firm) [1980] Ch 297
1980
ChD
Sir Robert Megarry V-C
Professional Negligence, Wills and Probate, Damages
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
1 Citers


 
In re Dennis (Deceased) [1981] 2 All ER 140
1981

Browne-Wilkinson J
Wills and Probate
The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act. Held: The claim failed. The payment of the applicant's debts was not for his maintenance, because there was nothing to suggest that payment of those debts would do anything to help his future maintenance. Browne-Wilkinson J said: "the court is reluctant to make further provision for someone for whom large sums of money have been provided and which have been dissipated by him." It should ask whether there is 'a case fit to go to trial'.
Browne-Wilkinson J said:"The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry (deceased) . . [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 In re Christie (deceased) . . [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."
Inheritance (Provision for Family and Dependents) Act 1975
1 Cites

1 Citers



 
 Escritt v Escritt; 1981 - [1982] 3 FLR 280

 
 In re Salmon (Deceased); 1981 - [1981] Ch 167
 
Re Dennis deceased [1981] 2 All ER 140
1981
ChD
Browne-Wilkinson J
Wills and Probate, Family
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."
Inheritance (Provision for Family and Dependants) Act 1975
1 Cites

1 Citers



 
 Jelley v Illife; CA 1981 - [1981] Fam 128; [1981] 2 All ER 29
 
In re Cleaver dec'd, Cleaver v Insley [1981] 1 WLR 939; [1981] 2 All ER 1018
1981
ChD
Nourse J
Wills and Probate, Equity
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.
Nourse J said: "The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding. An enforceable agreement to dispose of property in pursuance of mutual wills can be established only by clear and satisfactory evidence."
Equity does not protect the beneficiary under mutual wills merely because the wills have been made in identical or almost identical terms. There must be evidence of an agreement to create interests under mutual wills which are intended to be irrevocable after the death of the first person to die. Nourse J said: "It is therefore clear that there must be a definite agreement between the makers of the two wills; that that must be established by evidence; that the fact that there are mutual wills to the same effect is a relevant circumstance to be taken into account, although not enough of itself; and that the whole of the evidence must be looked at."
Inheritance (Provision for Family and Dependants) Act 1975
1 Cites

1 Citers


 
In re D (J) [1982] 2 WLR 373; [1982] 2 All ER 37; [1982] Ch 237
1982
ChD
Sir Robert Megarry VC
Wills and Probate, Health
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will. Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a will should not be executed pending an appeal was wrong in principle. The court laid down the principles upon which it should act. A letter of offer was taken into account on the question of costs.
Mental Health Act 1959 100(4) 102(1) 103(1)(dd)
1 Citers



 
 Re Flynn Deceased; ChD 1982 - [1982] 1 WLR 310
 
Re Orwell's Trust [1982] 1 WLR 1337
1982
ChD
Vinelott J
Wills and Probate, Legal Professions, Company
The term "firm" may include a company: "Whilst the term 'firm' in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company."
1 Citers



 
 Re Flynn; ChD 1982 - [1982] 1 WLR 310
 
Gartside v Sheffield Young and Ellis [1983] NZLR 37
1983

Cooke J
Professional Negligence, Commonwealth, Wills and Probate
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: "To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor's professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills."
1 Cites

1 Citers



 
 Re Rapley, deceased; ChD 1983 - [1983] 1 WLR 1069

 
 Kourkgy v Lusher; 1983 - (1983) 4 FLR 65; 12 Fam Law 86
 
Re Bunning, deceased; Bunning v Salmon [1984] 1 Ch 480; [1984] 3 WLR 265; [1984] 3 All ER 1
1984
ChD
Vinelott J
Wills and Probate, Family
Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be £36,000. Yet on an application under the 1975 Act he awarded her £60,000.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Re Callaghan, deceased [1985] Fam 1; [1984] 3 All ER 790
1984

Booth J
Family, Wills and Probate
An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of £15,000 to enable him and his wife to avoid the burden of taking on a mortgage of £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."
Inheritance (Provision for Family and dependants) Act 1975
1 Citers


 
Re Besterman, decd [1984] Ch 458
1984
CA
Oliver LJ
Wills and Probate, Family
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. "In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable' is nowhere mentioned, although the parties' financial needs - which have been construed to mean `reasonable requirements' - constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard' and the overriding consideration is what is `reasonable' in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention."
Inheritance (Provision for Family and Dependants) Act 1975 2 - Matrimonial Causes Act 1973 25
1 Citers


 
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