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Wills and Probate - From: 2002 To: 2002

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


 
 De Molestina v Ponton; 2002 - [2002] 1 LL Rep 271
 
Birch v Curtis [2002] 2 FLR 847
2002
ChD
Rimer J
Wills and Probate
The court held in favour of a mutual will made by the deceased husband with his second wife, to the detriment of the children of the husband’s previous wife, so disinheriting those children from their mother’s assets and indeed the husband’s own children from his first marriage.
1 Citers



 
 In Re B; CA 2002 - [2000] 1 All ER 665
 
Moorhead v Moorhead [2002] NICh 1
11 Jan 2002
ChNI

Northern Ireland, Wills and Probate
The deceased's widow complained that her husband's will had not made proper provision for her as was required by the order which " In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". Held: "The comparison between divorce provision and inheritance provision is necessarily inexact as the former involves fairness for both husband and wife while the latter may admit of greater flexibility as it involves the same property being available to make reasonable provision for only one spouse."
Inheritance (Provision for Family and Dependents) (Northern Ireland) Order 1979
1 Cites

[ Bailii ]
 
Lumley v Robinson [2002] EWCA Civ 94
25 Jan 2002
CA

Wills and Probate

[ Bailii ]
 
Tod v Judith Cobb Lady Barton, William Godfrey Lukes Barton, The Royal Society of Chemistry, In re Barton (Deceased) [2002] EWHC 264 (Ch)
20 Feb 2002
ChD
Mr Justice Lawrence Collins
Wills and Probate
The deceased was an English scientist who died domiciled in Texas. His beneficiaries in England executed a deed of variation, but this would not be recognised in the law of Texas. The will expressly stated it was subject to the laws of England. Texan law would override this. Held: The essential validity of a will in so far as it relates to movables is governed by the law of the domicile at death. The question was however as to the applicability of the rule in Saunders v. Vautier, which allowed sui juris beneficiaries to execute a variation. Here the convention applied. The express choice of law was limited to those matters over which the testator had the opportunity to choose. That did not apply to the trusts created by the will. However, the convention suggested because of the several remaining connections with England, that English law applied to the trust. The deed of variation was valid.
Recognition of Trusts Act 1987 - Hague Convention of 1985 on the Law Applicable to Trusts and their Recognition Art 6.1
1 Cites

[ Bailii ]

 
 Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed; CA 22-Feb-2002 - [2002] EWCA Civ 159; [2003] 1 P & CR 100; [2003] 1 FCR 501
 
Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others Times, 29 March 2002; Gazette, 11 April 2002; [2002] EWHC 218 (Ch)
26 Feb 2002
ChD
Mr Justice Etherton
Land, Wills and Probate
Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted. Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as a right of reverter, and therefore as part of the residuary estate, but rather as if it had been land in the estate, and passed as provided by the will as such. A right of reverter on the determination of a determinable fee was devisable under 3 of the 1837 Act
School Sites Act 1841 2 - Wills Act 1837 3
1 Cites

[ Bailii ]
 
Pennington and Another v Waine, Crampton and others Times, 01 April 2002; Gazette, 11 April 2002; [2002] EWCA Civ 227; [2002] 1 WLR 2075; [2002] 2 BCLC 448; [2002] 4 All ER 215
4 Mar 2002
CA
Lord Justice Schiemann, Lord Justice Clarke and Lady Justice Arden
Company, Wills and Probate
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased's agent, but not to the company and was not registered. Held: The Rose case did not mean that a transfer was incomplete without delivery to the registrar. The words of the section required only execution of a valid transfer. In the circumstances there had been an enforceable equitable assignment of the shares.
Stock Transfer Act 1963 1(1)
1 Cites

1 Citers

[ Bailii ]
 
In re Good, deceased; Carapeto v Good and Others Times, 22 May 2002; Gazette, 07 June 2002; (2002) WTLR 801; [2002] All ER 141; [2002] EWHC 640
19 Apr 2002
ChD
Justice Rimer
Wills and Probate, Costs, Civil Procedure Rules
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or those interested in the residue had been the cause of the litigation or if the circumstances led reasonably to an investigation. In this case a challenge to the will failed, but the challenge had not been without merit, and it remained appropriate to make an order that one half of the claimant's costs be payable from the estate.
A testator, when there is no suggestion of insanity, is presumed to have remained sane: "The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. A relevant standard of proof is, however, simply by reference to that balance of probability."
As to proof of execution of the will, Rimer J said: "The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion, something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. The relevant standard of proof is, however, simply by reference to the balance of probability."
On undue influence, Rimer J said: "the burden of proving that the May will was procured by undue influence on the part of the Carapetos lies squarely on the defendants. He disclaimed any suggestion that in circumstances such as those of the present case there is any scope for a presumption that undue influence was brought to bear on Miss Good, such that the burden is on the Carapetos to rebut it.
In this context, undue influence means coercion. The defendants have to show that, one way or another, the Carapetos so manipulated Miss Good that she felt she had no choice but to make the May will. "
Civil Procedure Rules 44.3
1 Cites

1 Citers


 
Watson and others v Perotti and Another [2002] EWCA Civ 771
25 Apr 2002
CA

Wills and Probate

[ Bailii ]
 
Healey v Brown [2002] 19 EG 147; [2002] EWHC Ch 1405; (2002) 19 EG 147
25 Apr 2002
ChD
David Donaldson QC HHJ
Wills and Probate, Land, Equity
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable. Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: "section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable." and "as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land." If section 2 did apply the documents would not satisfy it, and "section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement." However the doctrine of part performance could in this case be applied to impose a trust on the defendant.
Law Reform (Miscellaneous Provisions) Act 1989 2
1 Cites

1 Citers

[ Bailii ]

 
 Bell v Georgiou and Another; ChD 28-May-2002 - [2002] EWHC 1080 (Ch); [2002] WTLR 1105
 
Nathan v Leonard and Others Times, 04 June 2002; Gazette, 11 July 2002; [2003] 1 WLR 827
28 May 2002
ChD
Mr John Martin, QC
Wills and Probate
The testator added a codicil to her will providing that a gift to a beneficiary would be avoided if the will was challenged. She contested the clause saying it was against public policy insofar as it sought to discourage use of the Act. Held: Though a condition which might lead to forfeiting a benefit under a will might have a strong deterrent effect, that was not enough to make the condition void under public policy. If a claim was made under the Act, the court could then look at the resulting situation and decide whether that constituted adequate provision as required.
Inheritance (Provision for Family and Dependants) Act 1975

 
Carapeto v William Marsh Good and others [2002] EWCA Civ 944
20 Jun 2002
CA
Peter Gibson LJ
Wills and Probate
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will. Held: The appeal had no realistic prospect of success.
1 Cites

[ Bailii ]
 
Clark v Chandler Gazette, 11 July 2002
28 Jun 2002
CA
Lords Justice Thorpe and Chadwick and Mr Justice Wall
Land, Contract, Equity, Wills and Probate
The respondent had purchased a property in her sole name, but held the property with her husband. On a breakdown of the marriage, he signed a transfer of the property but the consideration was not settled. After his death, it was argued that the document was ineffective under the 1989 Act because it had not been signed by both parties. Held: The property was actually held under a joint tenancy. The failure to settle the consideration was enough to defeat its interpretation even as a conditional disposition. Accordingly the joint tenancy had not been severed, and the widow took the entire property by survivorship.
Law of Property (Miscellaneous Provisions) Act 1989 2 - Law of Property Act 1925 53(1)(c)

 
Sohal v Sohal [2002] EWCA Civ 1297
30 Jul 2002
CA
Sir Martin Nourse
Litigation Practice, Wills and Probate
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal. Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: "There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf in Wood v Gahlings, the allegation of fraud 'can be clearly established' or if, in the words of Lord Phillips (which come to the same thing) the fresh evidence or its effect is not 'hotly contested'. In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside." As to Hamilton, "Those observations must be accorded every respect. I do not think that they can have been intended to depart from what was said in paragraphs 8 and 14. Whether that be right or wrong, it is clear that each case must be judged on its own merits. If this court takes the view that the fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action."
1 Cites

1 Citers

[ Bailii ]
 
Hurst v Crampton Bros (Coopers) Ltd and others [2002] EWCA Civ 1384
9 Aug 2002
CA
Chadwick LJ
Wills and Probate, Company
Adjourned application for permission to appeal
1 Cites

1 Citers

[ Bailii ]
 
Jemma Trust Company Ltd v Peter D'Arcy Liptrott Jo [2002] EWHC 9008 (Costs)
12 Sep 2002
SCCO
Master Rodgers, Costs Judge
Wills and Probate, Costs, Legal Professions
The applicant challenged a solicitor's bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court's task is to assess a sum which is fair and reasonable. Held: A rate above that generally charged by solicitors in the geographic area was justified where the practitioner was highly experienced and specialist. The claimant argued that a value element should no longer be paid. In view of the omnipresence of computer time recording systems, it is now wrong to charge on both a value element and a time element.
Solicitors (Non Contentious Business) Remuneration Order 1994 3
1 Cites

1 Citers

[ Bailii ]
 
Bell v Georgiou and Another [2002] EWCA Civ 1510
4 Oct 2002
CA
Arden LJ
Wills and Probate
Action for rectification of a will.
Administration of Justice Act 1982 20
[ Bailii ]
 
Parks v Clout [2002] EWCA Civ 1565
22 Oct 2002
CA
Jonathan-Parker LJ
Wills and Probate, Evidence
Application for leave to make second appeal. Brother of deceased alleging that the widower had obtained probate by falsely representing that no will had been made by the deceased. Held: Insofar as the judge had based his conclusion on an incorrect assertion that circumstantial evidence could not be used at all to base a conclusion as to whether a will had been executed, the appeal had to be allowed to go ahead.
1 Cites

[ Bailii ]
 
Wright and Another v Fitzgerald [2002] EWCA Civ 1592
24 Oct 2002
CA

Wills and Probate

[ Bailii ]
 
Stoutt v Radford [2002] EWCA Civ 1654
1 Nov 2002
CA

Wills and Probate

[ Bailii ]
 
Molestina and others v Ponton and others [2002] EWHC 2413 (Comm)
21 Nov 2002
ComC
Langley J
Wills and Probate, Torts - Other
The parties challenged agreements compromising claims on the estate of the deceased, saying they had been obtained by misrepresentations. Held: The claimants did not establish that the representations claimed had in fact been made.
1 Cites

1 Citers

[ Bailii ]
 
John A Charles v Yvette Barzey [2002] UKPC 68; [2003] WTLR 343; [2003] 1 WLR 437
19 Dec 2002
PC
Lord Hoffmann, Lord Browne-Wilkinson, Lord Hope of Craighead, Lord Scott of Foscote, Sir Philip Otton
Wills and Probate
PC Dominica - The Board considered the meaning of a devise in the will
[ Bailii ] - [ PC ]
 
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