swarb.co.uk - law index
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Wills and Probate - From: 2003 To: 2003
This page lists 20 cases, and was prepared on 02 April 2018.
Re Thoars (Dec'd); Reid v Ramlort Ltd [2003] EWHC 1999 (Ch); [2003] BPIR 1444
2003
ChD
Judge Norris QC
Insolvency, Wills and Probate
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent. Held: The declaration of trust was a transaction at an undervalue. The policy was held on trust to return the premiums to the company, with the balance upon trust for the deceased's insolvent estate.
1 Cites
1 Citers
Piggott v Aulton (Deceased) Times, 19 February 2003; [2003] EWCA Civ 24; [2003] RTR 540
29 Jan 2003
CA
Lord Justice Sedley, Lord Justice Simon Brown, Lady Justice Arden
Civil Procedure Rules, Wills and Probate, Limitation
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant then said the proceedings were an abuse of process, and pleaded a limitation defence. Held: The deceased was not a person in law, and the first action had no proper defendant, and the two actions were not the same. The person appointed to defend was not a personal representative at law. There was an identity between him and the deceased, but only to the extent of the requirement to provide a defendant, and the appointment did not relate back to the death. The case fell within Shapland, not Walkley, and the judge could apply section 33 to allow the action.
Limitation Act 1980 33 - Civil Procedure Rules 19.8(2)(b)(ii)
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1 Citers
[ Bailii ]
Potter v Potter [2003] NIFam 2
5 Feb 2003
FdNI
Gillen J
Northern Ireland, Wills and Probate
The testator's capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was 'with it'. Evidence from a member of staff at the solicitor's office supported the doctor's description. Held: There was no evidence of undue influence, and the testator was of sound mind and capacity and he had made a disposition precisely along the lines which he wished to make.
1 Cites
[ Bailii ]
Hayward v Jackson Times, 27 February 2003; [2003] EWHC 253 (Ch); Gazette, 03 April 2003
18 Feb 2003
ChD
Mr Justice Lawrence Collins
Wills and Probate, Land
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed. Held: In this case there was no explicit gift over in the will if the option lapsed, and no other detriment was suffered by the delay. The delay had been caused by the Capital Taxes Office's failure to agree a value for the land. Time should not be taken to be of the essence, and the option remained exercisable. There was no distinction to be made here in interpreting wills between a gift and an option.
1 Cites
[ Bailii ]
D v L and Others; ChD 16-Apr-2003 - [2003] WTLR 687; [2003] EWHC 796 (Ch)
Parks v Clout [2003] EWCA Civ 893
10 Jun 2003
CA
Thorpe LJ, Jacob J
Wills and Probate
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased's last will. He appealed against his claim being struck out as having no realistic prospect of success. Held: There was no evidence to support the claim which was at best speculative. The appeal was denied.
1 Cites
[ Bailii ]
Hyett v Stanley and others [2003] EWCA Civ 942; [2004] 1 FLR 394
20 Jun 2003
CA
Trusts, Wills and Probate, Land
The couple had lived together at the property without being married for several years. The house was held in the man's sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half share in the house during his life, and that she had accepted obligations to the bank on the strength of that promise. The executors contended that it has been intended only that she should acquire an interest which would persist during his lifetime. Held: Mr Freeman and Miss Hyett rendered themselves jointly and severally liable to the Bank by the very transaction by which Miss Hyett acquired her beneficial interest, they could only reasonably have intended that they should each take a half share. A life insurance policy on joint lives was held for Mrs Hyett only to the extent required to repay the charge, but as to the rest for the executors.
1 Cites
1 Citers
[ Bailii ]
Daniel, Broke, Abiola, Broke, Abiola v Abiola, Kalu [2003] EWHC 1562 (Ch)
25 Jun 2003
QBD
Mr Justice Lawrence Collins
Wills and Probate
The administration of the estate had been very contentious, with allegations of a fraudulent will. Letters of administration with no will annexed had been made in favour of one party who had recently been involved in proceedings where the will was pronounced valid. An application for the revocation of the grant was pending. Various orders were made to approve interim actions in the administration of the estate, including payment of accounts to the solicitors involved in the administration.
1 Cites
[ Bailii ]
Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman; CA 1-Jul-2003 - A3/2002/2244; Gazette, 17 July 2003; [2003] EWCA Civ 886
Chappell v Somers and Blake (a Firm) Times, 02 September 2003; [2003] EWHC 1644 (Ch)
8 Jul 2003
ChD
Neuberger J
Professional Negligence, Wills and Probate
The will gave the deceased's property to the local church. The claimant executrix instructed the defendants to administer the estate, but later terminated the retainer saying that they had done nothing for many years, depriving the estate of rents. Held: Even though the claimant had no personal interest in the estate, she should be allowed to claim. Legal principle justified a conclusion which was consistent with the policy consideration. The loss occurred whilst the properties were vested in the administratrix, and she would be accountable to the parochial church council for the income lost. She therefore had a proper claim. The necessary policy point was to ensure that no double recovery arose, since the church could itself sue.
1 Cites
Grundy v Ottey; CA 31-Jul-2003 - [2003] EWCA Civ 1176; [2003] WTLR 1253
Clancy v Clancy Times, 09 September 2003; Gazette, 02 October 2003; [2003] WTLR 1097
31 Jul 2003
ChD
Rimer J
Wills and Probate
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to hospital with a terminal illness. She telephoned the solicitor from hospital to confirm her approval of the will. He attended on her and she executed it. The medical evidence indicated that at the she executed it it was highly unlikely that the deceased was able to make decisions about her will, but there was evidence that it was likely that she would have been able to recognise the will as the draft she had previously seen. A sister challenged the will saying that she had lacked testamentary capacity at the time of its execution and that she did not know and approve its contents. Held: The simple will reflected the instructions given. The testatrix was gravely ill and sedated when she executed the will, but there was sufficient testamentary capacity, where it could be shown that she believed that the solicitor had properly embodied her instructions in the will, and that at the time that she signed it she accepted the document as giving effect to those instructions. She had previously seen and agreed the draft will. The will was pronounced valid despite the fact that at the time the will was executed, there were doubts as to her full capacity.
Rimer J said: "because that would require actual knowledge on the testator's part which the principle presumes he does not have, and which in cases such as Parker he would ordinarily be incapable of having. The Parker case shows that all that is required is a belief that the solicitor has properly carried out the instructions by preparing a will which gives due effect to them, and I doubt if Devlin J was intending to say anything different."
1 Cites
1 Citers
Perotti v Collyer-Bristow (A Firm) and others; CA 6-Oct-2003 - [2003] EWCA Civ 1521; Times, 27 November 2003
Jemma Trust Company Ltd v Peter D'Arcy Liptrott, John Forrester, Kippax Beaumont Lewis [2003] EWCA Civ 1476; Times, 30 October 2003
24 Oct 2003
CA
Lord Justice Mance Lord Justice Peter Gibson Lord Justice Longmore
Costs, Legal Professions, Wills and Probate
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate. Held: Despite advances in time recording, "we see no reason to say that it is no longer appropriate for solicitors to make a separate charge based on value, provided always that one remembers that the solicitor is entitled only to what is fair and reasonable remuneration, taking all relevant factors into account. " There are significant differences in the circumstances in which charges are made for contentious and non-contentious business and the approach to such charges can properly differ even though similar factors apply. It can be of assistance to clients to budget, to substitute an element of a value charge for uncertainty deriving from purely time based costs. Any scale should be regressive. The ultimate safeguard remains the costs judge's duty to allow only such costs as are fair and reasonable in all the circumstances.
Solicitors Act 1974 56 - The Solicitors (Non-Contentious Business) Remuneration Order 1994
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[ Bailii ]
Angelo Perotti v Iliffes Booth Bennett (A Firm), Bird and Bird (A Firm), Richard Francis Dudley Barlow (Sued As Francis Barlow) [2003] EWHC 2497 (Ch)
28 Oct 2003
ChD
The Honourable Mr Justice Peter Smith
Wills and Probate
1 Cites
[ Bailii ]
Jennings and Another v Cairns; CA 18-Nov-2003 - Times, 25 November 2003; [2003] EWCA Civ 1935
Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others [2003] UKHL 77
20 Nov 2003
PC
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Sir William Aldous
Commonwealth, Jurisdiction, Wills and Probate
PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of coparceny, but the substantial asset was in Jersey. Held: The Royal Court was right in its view that Kenya is clearly a more appropriate forum than Jersey for the trial of Mahesh's action, and that no compelling reason has been made out for rejecting Kenya on the ground that Mahesh (or any other party) cannot expect to obtain justice there.
1 Cites
[ Bailii ] - [ PC ]
Murphy (By Her Litigation Friend Stockmont) v Holland; CA 19-Dec-2003 - [2003] EWCA (Civ) 1862; [2004] 1 FCR 1
Di Placito v Slater and others [2003] EWCA Civ 1863; Times, 29 January 2004; [2004] 1 WLR 1605
19 Dec 2003
CA
Lord Justice Laws Lord Justice Potter Lady Justice Arden
Wills and Probate, Litigation Practice
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action. Held: When considering whether to discharge such an undertaking the court should ask: "whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made."
Potter LJ: "It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and "must be made in an unequivocal manner and must not run counter to any important public interest", Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications "neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public" (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case."
A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences: "It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36."
1 Cites
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[ Bailii ]
Robinson v Fernsby, Scott-Kilvert; CA 19-Dec-2003 - [2003] EWCA Civ 1820; Times, 20 January 2004; [2003] WTLR 529