Links: Home | swarblaw - law discussions

swarb.co.uk - law index


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: 1985 To: 1989

This page lists 22 cases, and was prepared on 02 April 2018.

 
Re Leach, Leach v Lindeman [1986] Ch 226; [1985] 2 All ER 754
1985
CA

Wills and Probate
An adult may be a person who has been 'treated by the deceased as a child of the family' within the Act.
Inheritance (provision for Family and Dependents) Act 1975

 
Chapman v Chapman [1985] 1 All ER 757; [1985] 1 WLR 599
1985
ChD
Sir Robert Megarry VC
Wills and Probate, Costs
The plaintiff had been awarded her costs in a probate action, but had then failed to commence proceedings for taxation in time. When her solicitors did proceed, they gave no notice. She appealed an award of nominal costs only. Held: Order 3 rule 6 was general in its terms, and applied in such applications also. After a delay of more than three months, she should have given notice of her intention to apply for taxation. This was however only an irregularity. The defendant had been unable to show any prejudice from the delay, and the court would not infer any. The master's order would be discharged. The solicitors charges on presenting the bill would however be automatically disallowed.
1 Citers


 
Re Malpass [1985] Ch 42
1985
ChD
Megarry VC
Wills and Probate
The testator gave an option to his son to purchase his farm "at the agricultural value thereof determined for probate purposes . . as agreed with the district valuer". The district valuer would not participate in this valuation. Held: The provisions for agreement with the district valuer were merely a matter of machinery. The testator's intention as to the basis of valuation was clear. The court would therefore substitute effective and workable machinery, and directed an enquiry.
1 Citers


 
In Re Sinclair, deceased [1985] Ch 446
1985
CA
Slade LJ
Wills and Probate
The testator, a divorcee had already made a will leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund. He died in 1963. His former wife survived him and claimed under the will. Held: The court applied the 1837 Act, which provided that, where a testator is divorced after having made his will, any devise or bequest to his former spouse shall lapse, except in so far as a contrary intention appears by the will. The gift over did not take effect. The word "lapse" in section 18A(1)(b) meant no more than "fail". It did not mean "fail with the same consequences as if the former spouse had predeceased the testator". Since neither of the two contingencies on which the gift over was to take effect had occurred, the estate devolved as on the testator's intestacy. "I am bound to say that I have some sympathy with the fund, because, like the deputy judge, I have more than a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the fund. However one cannot, I think, possibly say with any certainty that merely because this testator in 1958 intended that his estate should go over to the fund if his wife should predecease him, he would necessarily and a fortiori have intended that the same results should ensue if the marriage ended by divorce during his lifetime. As the deputy judge pointed out, the truth of the matter is that, when he made his will, he clearly did not address his mind in any way to the unhappy contingency of a future divorce. It would not, I think, be open to the court to rewrite the will by adding other specific contingencies to those clearly expressed in clause 4 on the basis of mere intelligent speculation as to what the testator might have intended if his marriage were to end in divorce. It could only be done, if at all, by a process of necessary implication, ..."
Wills Act 1837 18A(1)(b)
1 Citers


 
Stead v Stead [1985] FLR 16
1985


Family, Wills and Probate
The court declined to award a widow a large capital sum from her husband's estate.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers



 
 Re Williams Deceased, Wiles v Madgin; ChD 1985 - [1985] 1 WLR 905; [1985] 1 All ER 964
 
In re Royce (Deceased) [1985] Ch 22
1985


Family, Wills and Probate
The court considerd an application under the 1975 Act where the claimant had been convicted of the manslaughter of her husband with a finding of diminished responsibility, and was the sole beneficiary under his will. The Forfeiture Act 1982 was not yet in effect. Held: The claim was struck out as disclosing no reasonable cause of action and the appeal against that order was dismissed. Reasonable financial provision would have been made by the will, and therefore s1 and 2 of the 1975 Act precluded her application. In any event the rule against benefitting from a criminal act prevented an order.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers



 
 Re Royse (Deceased); CA 1985 - [1985] 1 Ch 22

 
 In Re K, decd; ChD 2-Jan-1985 - [1985] Ch 85
 
Re Debenham deceased [1986] 1 FLR 404
1986

Ewbank J
Wills and Probate
The court considered what special circumstances had to be shown to found a claim under the Act other than by a spouse: “It is also said on behalf of the charities that before I can make an order I will have to find that there were special circumstances outside the range of circumstances listed in s.3 of the Act. It is said that this can be derived from the case of Re Coventry above but I do not read the case of Coventry in that light. That was relating to a grown up man who was capable of working, and a judge, with whom the Court of Appeal agreed, said that if a grown up man capable of working was going to make an application under the Act he would look for special circumstances. So one would. But that is not a question of law; it is a question of applying common sense principles...”
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
In re Basham dec'd; Basham v Basham [1986] 1 WLR 1498; [1987] 1 All ER 405
1986

Edward Nugee QC
Wills and Probate, Estoppel
The claimant and her husband had helped her mother and her stepfather throughout the claimant's adult life. She received no remuneration but understood that she would inherit her stepfather's property when he died. After her mother's death and until her stepfather's death she and her husband lived near the cottage to which her stepfather had moved (but never lived in the cottage). The claimant was told by her stepfather that 'she would lose nothing' by her help and (a few days before his death) that she was to have the cottage. The deputy judge held that she was entitled, by proprietary estoppel, to the whole of the estate of her stepfather (who died intestate). He rejected the submission that the principle could not extend beyond cases where the claimant already had enjoyment of an identified item of property.
Edward Nugee QC said: "In the present case it is in my judgment clearly established by the evidence, first, that the plaintiff had a belief at all material times that she was going to receive both Rosslyn and the remainder of the deceased's property on his death, and secondly, that this belief was encouraged by the deceased . . I am satisfied that the deceased encouraged the plaintiff in the belief that all the property he possessed at the date of his death would pass to her." and
"The plaintiff relies on proprietary estoppel, the principle of which, in its broadest form, may be stated as follows: where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief." and "But in my judgment, at all events where the belief is that A is going to be given a right in the future, it is properly to be regarded as giving rise to a species of constructive trust, which is the concept employed by a court of equity to prevent a person from relying on his legal rights where it would be unconscionable for him to do so."
1 Cites

1 Citers


 
Layton v Martin [1986] 2 FLR 227
1986

Scott J
Wills and Probate, Family
The deceased had written to the Plaintiff offering her "what emotional security I can give, plus financial security during my life, and financial security on my death." Held: The statement could was insufficient to establish either a constructive trust or a proprietary estoppel. Scott J said: "The proprietary estoppel line of cases are concerned with the question whether an owner of a property can, by insisting on his strict legal rights therein, defeat an expectation of an interest in that property, it being an expectation which he has raised by his conduct and which has been relied on by the Claimant The question does not arise otherwise than in connection with some asset in respect of which it has been represented, or is alleged to have been represented, that the Claimant is to have some interest... A representation that "financial security" would be provided by the deceased to the Plaintiff . . is not a representation that she is to have some equitable or legal interest in any particular asset or assets."
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers



 
 Hamlin v Hamlin; CA 1986 - [1986] Fam 11
 
Holtham v Arnold [1986] 2 BMLR 123
1986

Hoffmann J
Wills and Probate
The court considered how it might decide between the competing claims of different family members to have control over the burial of the deceased. Hoffmann J said: "there seems to be no doubt that Mrs Holtham on the one side and the family on the other both feel very strongly that it is their right and duty to conduct the funeral. I think it is virtually impossible for a court to express any moral judgment as between them. The relationship between a man in the position of Mr Arnold and Mrs Holtham on the one hand and his family on the other are in the nature of things extremely difficult for an outsider to penetrate . . Indeed, I think it is a matter on which it would almost be presumptuous to try to explore. In those circumstances the only course really open to the court is to decide the matter according to law."
1 Citers



 
 In Re K (Deceased); CA 1986 - [1986] 1 Ch 180
 
Clarke v Bruce Lance and Co [1988] 1 All ER 364; [1988] 1 WLR 881; [1989] ANZ Conv R 25; (1988) 85 LSG 37
1988
CA
Balcombe LJ
Professional Negligence, Wills and Probate
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Balcombe LJ said: "If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." He rejected that argument.
. . And "Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator's death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor."
1 Cites

1 Citers


 
Williams v Johns [1988] 2 FLR 475
1988


Wills and Probate

1 Citers


 
Russell's Executor v Balden 1989 SLT 177
1989


Wills and Probate

1 Citers



 
 Reed v Madon; ChD 1989 - [1989] 2 All ER 431; [1989] 1 Ch 408
 
Davitt v Titcumb [1990] Ch 110; [1989] 3 All ER 417
1989
ChD
Scott J
Wills and Probate, Insurance, Equity
The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used to pay off the mortgage, and the house sold. The issue was how to calculate any share he had in the proceeds. Held: The fund would not have come into existence but for his criminal act. He was barred by public policy from benefiting under it. The equity of redemption in the policy enured to the personal representatives of the deceased., who were to be treated as having provided the proceeds of the policy for the calculation.
1 Cites

1 Citers


 
O'Connell v Shortland [1989] 51 SASR 337; [1989] SASC 1747; 153 LSJS 146
1989

White J
Wills and Probate
Supreme Court of South Australia - The mere eccentricity of a testator is not sufficient to avoid the will.
1 Citers

[ Austlii ]
 
Re Grandison; Grandison v Nembhard Times, 10 July 1989; (1989) 4 BMLR 140
10 Jul 1989
ChD
Vinelott J
Wills and Probate
In a case where there is no dispute as to the executor's entitlement to act in the estate, the right of the executor to decide on the mode of burial is likely to be accorded a high priority. The deceased's wishes are one of the relevant factors to be taken into consideration.
1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.