swarb.co.uk - law index
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Wills and Probate - From: 1991 To: 1991
This page lists 4 cases, and was prepared on 02 April 2018.
Bishop v Plumley; CA 1991 - [1991] 1 All ER 236; [1991] 1 WLR 582
Re C (A Patient) [1991] 3 All ER 866
1991
ChD
Hoffmann J
Wills and Probate
It may be likely that more than one kind of provision may be described as what the donor of the power of attorney "might be expected to provide". "I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, says "might" rather than "would be expected to provide". In matters of detail there must be a range of choices which would be equally valid".
Enduring Powers of Attorney Act 1985
1 Citers
Sen v Headley; CA 28-Feb-1991 - [1991] EWCA Civ 13; [1991] Ch 425
Moody v Stevenson [1992] Ch 486; [1992] 2 WLR 640; [1992] 2 All ER 524; Independent, 17 September 1991; Times, 30 July 1991
12 Jul 1991
CA
Mustill LJ and Waite J
Wills and Probate, Family
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife's estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose. Held: The court considered the application of section 3(2): "and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce."
Waite J said: "The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased's lifetime by virtue of his or her prospective entitlement under the matrimonial law." and "In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?' If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?'" and "The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce." In this case, the result was an order permitting him to continue to occupy the house.
Inheritance (Provision for Family and Dependants) Act 1975 3(2)
1 Cites
1 Citers
