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Wills and Probate - From: 1996 To: 1996

This page lists 13 cases, and was prepared on 02 April 2018.

 
In Re Abram [1996] 2 FLR 379
1996


Wills and Probate

1 Citers


 
Cameron v Treasury Solicitor [1996] 2 FLR 716
1996


Wills and Probate
The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between them for the next 19 years, although they had remained in touch. Held: The fact that she was in necessitous circumstances did not create any obligation on the deceased to provide for her from his estate. There was no other claimant and that his small estate passed as bona vacantia to the Crown did not alter the fact that their personal and financial relationship was long in the past. That the devolution of the estate to the Crown could not enhance the applicant's claim and was a neutral factor, not relevant to the criteria to be taken into account under section 3 of the 1975 Act.
Inheritance (Provision for Family and Dependants) Act 1975 3
1 Citers


 
Re Ducksbury (deceased) [1966] 1 WLR 1226; [1966] 2 All ER 374
1996

Buckley J
Wills and Probate
Buckley J said: "it is not for me to try to effect the sort of testamentary dispositions which I think that a testator should have made or would have made had his mind not been affected, as I think it was, by his matrimonial disputes with his first wife. It is not for me to say what he ought to have done if he had been generously disposed towards the plaintiff. I have to consider what it is reasonable in the circumstances of this case to order that she should receive, having first of all satisfied myself that the testator had failed to make reasonable provision for her. He has in fact made no provision for her, and for the reasons that I have indicated I think that he was under a moral obligation to make some provision for her. I am, therefore, satisfied that he has failed to make a reasonable provision for her."
1 Citers


 
In re Segelman (dec'd) [1996] Ch 171; [1996] 2 WLR 173; [1995] 3 All ER 676
1996
ChD
Chadwick J
Trusts, Wills and Probate
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator's intentions, is an exacting one.
Chadwick J said: "Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the Court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality represents his intentions is usually of such weight that convincing evidence to the contrary is necessary." The section required three questions to be examined: first, what were the testator's intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error or a failure on the part of someone to whom the testator has given instructions in connection with his will, to understand those instructions.
The jurisdiction conferred by section 20 of the 1982 Act in England was limited to cases in which "the intended words of the testator" can be identified with precision: "In my view the jurisdiction conferred by section 20(1), through paragraph (a) extends to cases where the relevant provision in the will, by reason of which the will is so expressed that it fails to carry out the testator's intentions, has been introduced (or as in the present case has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect."
Chadwick J: "The third question in relation to the claim for rectification is whether the failure of cl 11(a) to carry out the testator's intention is in consequence of a clerical error or a failure to understand his instructions, or has come about for some other reason. I am satisfied that the reason why cl 11(a) with its proviso did not carry out the testator's intention was that Mr White failed to appreciate on 5 May 1992 that the proviso which he had included in the draft will on his own initiative had become inapt once he had been instructed that the second schedule was to take the form which it did. Once he had a list for inclusion as the second schedule which included the issue of five of the six named beneficiaries Mr White ought to have deleted the proviso to cl 11(a) from the draft will. Failure to do so was a mistake. That mistake did not arise from any failure by Mr White to understand his instructions. Mr White told me that he simply forgot that the proviso was there. The question is whether that mistake can properly be regarded as a clerical error for the purposes of s 20(1)." and
The distinction between (i) the introduction of words into a will per incuriam without advertence to their significance and effect (described in that passage as 'a mere clerical error'), (ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions and (iii) the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) do not achieve the objective which he and the testator intended, was preserved when the law relating to the rectification of wills was altered by s 20(1) of the 1982 Act. The distinction had been recognised by the Law Reform Committee in their nineteenth report. . . Interpretation of Wills; a report which led to, but which was not wholly carried into effect by, the 1982 Act. The alteration of the law made by that Act gives power to the court to order rectification—as distinct from the former power merely to order the omission of words from probate—and extends that power to cases of failure to understand instructions, in addition to mistakes in consequence of clerical error; but there is no reason to think that that which the editor of Mortimer would have recognised as a clerical error in 1927 was not intended to be picked up by of s 20(1)(a)of the 1982 Act.
The mistake with which he was concerned lay in a failure to include in a new will made in 1989 a clause exercising a testamentary power of appointment in favour of her husband which had been conferred on the testatrix under the will of her father. The relevant clause exercising that testamentary power had been included in two earlier wills. The judge was satisfied that the testatrix intended that her 1989 will should include a provision precisely in the terms of the relevant clause in her immediately preceding will. He concluded: 'It follows that in my judgment [the solicitor's] error in failing to include in his draft new will a paragraph following the provisions of cl 4 of the 1979 will was an error made in the process of recording the intended words of the testatrix and, in my judgment, constituted a clerical error within s 20(1)(a) [of the 1982 Act].'
In reaching that conclusion the judge had considered the passage in Mortimer to which I have already referred and the judgment of Latey J in Re Morris (decd). He had also considered the Australian case of R v Comr of Patents, ex p Martin (1953) 89 CLR 381 and the nineteenth century English case of Re Sharp's Patent, ex p Wordsworth (1840) 3 Beav 245, 49 ER 96. It was, I think, observations in those patent cases which led him to the view that: 'the words "clerical error" used in section 20(1)(a) of the 1982 Act are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will.'
If taken out of context there is some danger, perhaps, that the judge's reference to 'the intended words of the testator' might be thought to require a finding that the testator had actually reached the point of putting into words the relevant provision which was to give effect to his intention; or of approving words put to him by another for that purpose. There will, of course, be many such cases. Wordingham v Royal Exchange Trust Co Ltd was itself such a case, in that the judge was able to find that the error lay in not transposing the precise terms of the relevant clause in the testatrix's earlier will. But, for my part, I do not think that the jurisdiction conferred by s 20(1)(a) of the 1982 Act is limited to cases in which 'the intended words of the testator' can be identified with precision.
In my view, the jurisdiction conferred by s 20(1), through para (a), extends to cases where the relevant provision in the will—by reason of which the will is so expressed that it fails to carry out the testator's intentions—has been introduced (or, as in the present case, has not been deleted) in circumstances in which the draftsman has not applied his mind to its significance or effect. It is to this failure to apply thought that Latey J and the editor of Mortimer attach the phrase 'per incuriam'. As Nicholls J pointed out in Re Williams (decd), Wiles v Madgin [1985] 1 All ER 964 at 969, [1985] 1 WLR 905 at 911–912 a testator writing out his own will can make a clerical error just as much as someone else writing out a will for him.
It follows that I am satisfied that the mistake which I have identified—namely, the failure by Mr White through inadvertence to delete the proviso to cl 11(a) from the draft will once he had the list for inclusion in the second schedule—can properly be regarded as a clerical error for the purposes of s 20(1) of the 1982 Act.
Administration of Justice Act 1982 20
1 Cites

1 Citers


 
Re S deceased [1996] 1WLR 325
1996


Wills and Probate
The court considred the application of the Act: " such was the deliberate nature of his violent attack on his wife that the forfeiture rule of public policy applies so as to disentitle the plaintiff from any benefit he would otherwise take as a result of his crime."
Forfeiture Act 1982
1 Citers


 
Corbett v Newey and Others Gazette, 06 March 1996; Independent, 07 February 1996; Times, 05 February 1996
15 Feb 1996
CA

Wills and Probate
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary effect. The testator cannot impose a precondition on its effectiveness. The awarded costs out of the estate.
1 Cites

1 Citers


 
Couser v Couser Gazette, 27 March 1996; Times, 18 March 1996
18 Mar 1996
ChD

Wills and Probate
A witness to the execution of a will can acknowledge his own signature in the later presence of the second witness.
Wills Act 1837 9


 
 Gray v Richards Butler (A Firm); ChD 24-Jun-1996 - Gazette, 02 August 1996; Times, 23 July 1996

 
 Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority; CA 26-Jun-1996 - Times, 15 July 1996; Gazette, 29 August 1996; [1997] 1 WLR 596; [1996] EWCA Civ 1301; (1997) 33 BMLR 146,; [1997] 1 FLR 598; [1997] 8 Med LR 357; [1996] 4 All ER 474; [1997] Fam Law 326; [1997] 2 FCR 651
 
Krubert, Re Gazette, 17 July 1996; Times, 16 July 1996; [1997] Ch 96; [1996] EWCA Civ 1346
27 Jun 1996
CA
Nourse LJ, Cazalet J
Family, Wills and Probate
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse. Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on every application under it the court must ask itself two questions: first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive? Provision for deceased's wife were to be read to follow the Act and not necessarily as would occur on a divorce.
As to the two cases of Besterman and Moody: "
There had been confusion arising from the conflict of approach taken in Re Bestermann and in Moody v Stevenson. The case of re Besterman was to be preferred. The Recorder had made an error of principle: "While I fully appreciate that the question what is reasonable provision is not to be determined exclusively by the financial needs of the applicant, especially when he or she is a surviving spouse, it is a consideration which must be taken into account. Looking at the matter in the round, I think that if the deceased had made reasonable provision for Mrs. Krubert out of his other resources, it would have been reasonable for him to have left his brother and sister the reversionary interest in the house; conversely, it would not have been unreasonable for him only to have left Mrs. Krubert a life interest in it. Accordingly, to award her an absolute interest in the house and all but £14,000 of the other assets was in my judgment an error of principle on the recorder's part . . Having considering the question afresh, I think there is indeed a conflict between the two decisions, if only one of emphasis. However conflict of emphasis can often cause problems at first instance for busy district and circuit judges. Moreover we have some anecdotal evidence that the approach adopted in Moody -v- Stevenson may indeed have caused confusion at that level, especially in the cases of small estates. I can understand that, if only because on a divorce there are two parties to be provided for, whereas on an application under the (inheritance legislation) there is only one. In my view Oliver LJ's approach is preferable, being more in accordance with the intention of the Act when read as a whole. I think it should be adopted accordingly."
Inheritance (Provision for Family and Dependants) Act 1975
1 Cites

1 Citers

[ Bailii ]
 
Trustees of Estate of D A Davis v Davis [1996] EWCA Civ 605
20 Sep 1996
CA

Wills and Probate

[ Bailii ]

 
 Perotti v Watson; Impanni; Abbate and Abbate; CA 2-Oct-1996 - [1996] EWCA Civ 623
 
Goulding and Goulding v James and Daniel Times, 07 February 1997; [1996] EWCA Civ 1156
10 Dec 1996
CA

Wills and Probate
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court's approval was necessary. The judge had refused to approve the variation, saying that it would be contrary to the intention of the testator, and that he was entitled to take into account other evidence of the testator's wishes in deciding whether to approve the variation. Held: The principles in Ladd v Marshall did not apply so strictly when an appeal court was exercising a protective and administrative function. Extrinsic evidence of a testator's wishes was not admissible in evidence to amend the trusts of the will.
The court has a discretion whether or not to approve a proposed arrangement. That discretion is fettered by only one express restriction. The proviso to section 1 of the 1958 Act prohibits the court from approving an arrangement which is not for the benefit of the classes referred to in (a), (b) or (c). The approval of this arrangement is not prevented by that proviso, since it is plainly the case that it is greatly for the benefit of the class specified in section 1(1)(c)(3). The judge erred when he allowed extrinsic evidence of the subjective wishes of Mrs Froud as regards her daughter, son-in-law and grandson to outweigh considerations of objective and substantial benefit to the class on whose behalf the court is empowered to act. If the Judge had adopted the correct approach to the exercise of his discretion, he could only have come to the conclusion that the intentions and wishes of Mrs Froud, expressed externally to her will in relation to the adult beneficiaries and an adult non-beneficiary, had little, if any, relevance or weight to the issue of approval on behalf of the future unborn great grandchildren, whose interest in residue was multiplied five-fold under the proposed arrangement.
Variation of Trusts Act 1958 1
1 Cites

[ Bailii ]
 
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