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Wills and Probate - From: 1999 To: 1999

This page lists 25 cases, and was prepared on 02 April 2018.

 
Espinosa v Bourke [1999] 1 FLR 747
1999
CA
Butler-Sloss LJ
Wills and Probate
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed her application, holding that whilst the deceased had a moral obligation to the applicant, based both on a promise by the deceased to leave shares previously belonging to his wife to the daughter, and on the daughter's care for the deceased during his lifetime, that moral obligation had been discharged by the deceased's financial support for the daughter during his lifetime. Held: Her appeal succeeded. the claimant was awarded £60,000 from the total net estate of £196,000. The Court attached weight to the claimant's assertion that her father had promised her mother that those assets that she had left directly to her husband would pass to her.
Butler-Sloss LJ summarised the arguments presented: "Mr Norris QC for the appellant submitted that the judge fell into error in his approach to the claim. He concentrated on the issue of moral obligation and did not consider the criteria under s 3(1) as a whole. Mr Norris submitted that the most significant factor for the court to take into account was the applicant's needs and resources and the judge failed, despite the evidence before him, to make any findings at all about the financial position of the appellant: s 3(1)(a). An adult child was in no special position and this appellant was, at the time of death, dependent upon the deceased. At the time of the hearing her financial position was precarious. The judge, having found that a moral obligation existed, was in error in concluding that it had been discharged.
Mr Herbert QC submitted that the judge had to make a value judgment and the appellate court should not interfere unless he was plainly wrong. A court should be reluctant to disturb a will. An adult child capable of earning a living had a big hurdle to overcome unless moral obligation or special circumstances could be established. He accepted that the judge did not make findings about the appellant's financial position but submitted that on the facts of this case it was not necessary to do so. In any event it must be inferred that the judge considered it was a case where the appellant had needs in order for him to go on and consider the moral obligation. The appellant had never provided evidence nor sought to ask for details of the portfolio shares inherited by the deceased from his wife and there was no evidence about it. At the time of the trial the appellant had bought a business and her present financial position was adequate. He submitted that the judge was entitled to come to the conclusion that the contribution made by the deceased during his lifetime together with the conduct of the appellant discharged any obligation he might have towards her."
Butler-Sloss quoted her own judgment in Re Hancock and said: "I have drawn attention to the passages above from earlier decisions of this court in order to show the way in which the words 'moral obligation' and 'special circumstance' have been applied in the judgments. Subsection (1)(d) refers to 'any obligations and responsibilities'. Plainly those obligations and responsibilities extend beyond legal obligations and that is why, in my view, the word 'moral' has been used to underline and explain that the deceased's obligations and responsibilities are not to be narrowly construed as legal obligations but to be taken into account in a broad sense of obligation and responsibility. Any other meaning of 'moral' (such as the distinction between right and wrong, see Concise Oxford Dictionary) would more appropriately be considered under (g). There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act.
Applying these propositions to the present appeal, in my judgment the judge did fall into error by focusing too much upon the requirement for an adult child to show a moral obligation. At the stage that he decided that the moral obligation had been discharged, he failed to put the other criteria, particularly needs and resources of the appellant, into the balancing exercise. In the light of the way in which the case was presented to him, I have some sympathy with the judge's approach to his decision. We were also told that it was an extempore judgment on the last day of his sitting in Manchester. Nonetheless his approach to the value judgment he had to make was flawed and his decision cannot stand."
Inheritance (Provision for Family and Dependants) Act 1975 3(1)(a)
1 Cites

1 Citers


 
Fessi v Whitmore [1999] 1 FLR 767
1999


Wills and Probate
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place.
1 Citers


 
Buchanan v Milton [1999] 2 FLR 844; [2004] EWCA Crim 1275
1999

Hale J
Wills and Probate
Hale J said: "There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson). Certainly in this case, the persons primarily entitled to such a grant did not secure delivery of the body and had to apply for a grant. Technically, therefore, this case is about who should be granted letters of administration of the estate for this particular purpose."
[ Bailii ]
 
In re Evans Dec'd [1999] 2 All ER 777
1999


Wills and Probate
Where the administration of a deceased’s estate remained incomplete the claimants rights to receive their share or interest had not yet accrued, and the limitation period had not yet commenced.

 
Regina v Kelly [1999] 2 QB 621
1999

Rose LJ
Wills and Probate
Robbers who stole and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. The court considered the issue of ownership of a corpse: "We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights." However parts of a corpse are capable of being property: "To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority [1997] 1WLR 596, 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose."
1 Cites

1 Citers


 
In re Cameron deceased [1999] Ch 386; [1999] 2 All ER 924
1999
ChD
Lindsay J
Wills and Probate
The court was asked whether a gift was a 'portion' made in order to establish a child in life or make substantial provision for him. Held: The presumption against double portions arises because it is assumed that a parent only intends to fulfil his or her moral obligation to give a portion to each of his or her children on a single occasion.
There remains no presumption against a mother's provision for a child as an advancement against an interest in the will, and both parents should nowadays be taken to be in loco parentis unless the contrary is proved. A 'portion' for this purpose is loosely defined as 'a gift intended to set up a child in life or to make substantial provision for him or her'. A gift may still be regarded as a 'portion' for the purposes of the presumption when it is part of the residue of an estate even though by the time of the testator's death the child in question does not need the money to establish him or herself in life.
Thus where a parent leaves a substantial share of his estate in his will to his children and then gives a large inter vivos gift to one of those children, and where both those gifts have the character of a portion, it is assumed, subject to evidence establishing the contrary, that the gift is supposed to be a substitute for the bequest. Where the presumption prevails, the doctrine of ademption applies on the distribution of the estate so that the inter vivos gift is treated as counting towards the donee's legacy or share of the estate.
1 Citers



 
 In Re Hughes Deceased; ChD 8-Jan-1999 - Times, 08 January 1999

 
 In Re the Estate of B (Deceased); ChD 26-Jan-1999 - Times, 26 January 1999; Gazette, 17 February 1999
 
Practice Direction (Probate: Deceased's Names) Times, 26 January 1999
26 Jan 1999
FD

Wills and Probate
The names and date of birth as shown in the entry of the register of deaths, and any other names by which the deceased was known are to be shown in any application for a grant in an estate, and also in any standing search application.


 
 Powell v Haywards (a Firm); CA 18-Feb-1999 - Gazette, 31 March 1999; Gazette, 10 March 1999; [1999] EWCA Civ 816; Times, 11 March 1999; [1999] 1 FLR 1182
 
Rooney v Cardona and Others Times, 04 March 1999
4 Mar 1999
CA

Wills and Probate, Insolvency
A joint life first death policy had been paid out to a bankrupt surviving husband. Since the policy was taken out for the benefit of the spouse under the Act, the husband received it in his capacity as a beneficiary and not as a trustee and he could not give good receipt for the proceeds.
Married Women's Property Act 1882 11


 
 James v Williams; CA 8-Mar-1999 - Times, 13 April 1999; Gazette, 14 April 1999; Gazette, 28 April 1999; [1999] EWCA Civ 921
 
Evans v Westcombe; re Evans Gazette, 10 March 1999; Gazette, 17 March 1999; Times, 10 March 1999; Gazette, 10 March 1999; [1999] 2 All ER 777
10 Mar 1999
ChD
Richard McCombe QC
Wills and Probate
Where available, missing beneficiary insurance was the preferred way of dealing with the problem, rather than applications to the court for Benjamin or other similar orders. Insurance should be cheaper and more certain for the personal representatives. Where the cost of an application would be disproportionate, the cost of insurance may be paid out of the trust estate.
1 Citers


 
In Re Ratcliffe, Deceased Times, 19 March 1999; Gazette, 17 March 1999; Gazette, 31 March 1999
19 Mar 1999
ChD

Inheritance Tax, Wills and Probate
When apportioning a residuary estate between charitable and non-charitable beneficiaries, the debts should be paid first, the estate divided, and only then the Inheritance Tax calculated. The gross division system used in this case had prejudiced the non-charitable beneficiaries.
1 Cites



 
 In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others; ChD 24-Mar-1999 - Gazette, 21 April 1999; Times, 02 April 1999; Gazette, 28 April 1999
 
Couwenbergh v Valkova [1999] EWCA Civ 1124
29 Mar 1999
CA

Wills and Probate

1 Cites

1 Citers

[ Bailii ]

 
 Killick v Pountney and Another; Re Killick Deceased; ChD 31-Mar-1999 - Times, 30 April 1999; Independent, 10 May 1999; (2000) 1 WTLR 41
 
Anne Hyde Earnshaw; Marion Robinson and Lucy Hyde Fielden v Josephine Hyde Hartley Gazette, 21 April 1999; Times, 29 April 1999; Gazette, 12 May 1999; [1999] EWCA Civ 1141; [2000] Ch 155
31 Mar 1999
CA
Lord Justice Nourse Lord Justice Buxton And Sir Christopher Staughton
Land, Wills and Probate, Limitation
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A delay in the application for the grant did not apply where time had not in any event begun to run before the application
Limitation Act 1980 Sch 1 Para 9 - Administration of Estates Act 1925 9
1 Cites

1 Citers

[ Bailii ]
 
Lewisham and Guys Mental Health NHS Trust v Andrews Gazette, 11 August 1999; Times, 21 April 1999
21 Apr 1999
EAT

Discrimination, Damages, Wills and Probate
A claim of damages for race discrimination did not survive the claimant's death, and the estate cannot continue the claim. There is no statutory basis for such a survival, and it had not been intended by Parliament. This differs explicitly from other types of claims under general employment law, but is similar for sex discrimination.
Race Relations Act 1976

 
Macaulay and Farley v Premium Life Assurance Co Ltd Unreported, 29 April 1999
29 Apr 1999

Park J
Professional Negligence, Damages, Wills and Probate
Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant. Held: The damage claimed (liability for inheritance tax) was not suffered until the date of death. "The claimants are not suing in respect of a lost opportunity suffered by Mrs Macaulay in her lifetime. They are suing in respect of the IHT liability which arose on Mrs Macaulay's death and which did not exist until she died." and "the damage relied on as a central ingredient of the cause of action is the amount of IHT payable by Mrs Macaulay's estate. In my judgment, it is of some relevance that the IHT payable on death is imposed directly on the personal representatives as such. It is not imposed on the deceased "
1 Citers


 
Worby, Worby and Worby v Rosser Times, 09 June 1999; Gazette, 16 June 1999; [1999] EWCA Civ 1520; [2000] PNLR 140
28 May 1999
CA
Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick
Professional Negligence, Wills and Probate, Legal Professions
Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor. Held: The estate had suffered no proven loss. A solicitor, following his client's instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants.
1 Cites

1 Citers

[ Bailii ]
 
Taylor and others v Midland Bank Trust Company Limited [1999] EWCA Civ 1917
21 Jul 1999
CA
Stuart-Smith and Buxton LJJ and Rattee J
Wills and Probate, Litigation Practice
Stuart-Smith LJ rationalised the possible conflict between Part 24 and the practice direction to Part 24 in its original form by saying that the correct view of the effect of the practice direction is to be gleaned from the heading to the paragraph which reads "the court's approach". It indicates no more than examples of situations where it could be right to give summary judgment in favour of one party or the other.
Civil Procedure Rules
1 Citers


 
Stephen Irvine Williams; Mark Cosstick v Teresa Malewska; Miroslaw Malewski; Michael Fabian; Anna-Maria Fabian; Kasia Malewska and Marta Bielec-Cialowicz [1999] EWCA Civ 1954
23 Jul 1999
CA

Wills and Probate

[ Bailii ]
 
X v A and Others Gazette, 13 October 1999
13 Oct 1999
ChD

Trusts, Wills and Probate, Environment
A trustee under a will where there was a life interest had the ability to assert a lien over the estate in respect of potential liability which might be incurred because of the necessity of complying with any order for the clean-up of land forming part of the estate, even though the part of the Act which might operate was not yet in force.
Environmental Protection Act 1990 Part II

 
Helga Stoeckert v Margie Geddes (Appeal No 66 of 1998) [1999] UKPC 52
13 Dec 1999
PC
Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Saville of Newdigate, Lord Hobhouse of Woodborough
Commonwealth, Trusts, Family, Wills and Probate
PC Jamaica The claimant claimed against the estate of her former partner. Though not married they had lived together for many years, and she claimed there had been an express understanding that she would receive part of his estate. A constructive trust was claimed and denied. Held: The facts alleged were not capable of sustaining the claim. Leaving the claimant in charge of his business whilst the deceased had gone to live abroad did not establish such a trust, and nor did the several statements made.
1 Cites

[ Bailii ] - [ PC ]
 
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