Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Wills and Probate - From: 2004 To: 2004

This page lists 24 cases, and was prepared on 02 April 2018.

 
Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased) [2004] EWHC 1944 (Fam); [2008] WTLR 851
2004
FD
Munby J
Wills and Probate
The adult daughter claimed against her father's estate. The claimant's father had left his estate to his widow and the children that he had with her. Held: Munby J made an award under the Act to an adult child of the deceased, part of which was to pay off debts incurred by the claimant. However, these were debts for living expenses incurred after the date of death of the deceased, and Munby J excluded from his award any sum towards her debts incurred before the date of death.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Francis Hoff and others v Mary Atherton [2004] EWHC 2007 (Ch)
2004
ChD
Nicholas Warren QC
Wills and Probate, Costs
A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first.
1 Cites

1 Citers


 
Gully v Dix; In re Dix deceased Times, 28 January 2004; [2004] EWCA Civ 139; [2004] 1 FLR 918
21 Jan 2004
CA
Ward LJ, Mummery LJ, Rix LJ
Wills and Probate
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm. Held: The Act should be read to allow the claim. The issue was whether the claimant's departure for three months meant that she was unable to show that she had lived with, or was being maintained by, the deceased throughout the last two years of his life. In the light of the authorities, the judge looked to the settled state of affairs before the death. For these purposes the question was whether the relationship had truly come to an end. This relationship had not.
Inheritance (Provision for Family and Dependants) Act 1975 1 - Law Reform (Successors) Act 1995
1 Cites

1 Citers

[ Bailii ]
 
The Estate of Dr Anandh and Another v Barnet Primary Health Care Trust and others [2004] EWCA Civ 5
27 Jan 2004
CA
Lord Justice Potter Lord Justice Latham Lady Justice Arden
Health Professions, Wills and Probate

[ Bailii ]
 
Humblestone v Martin Tolhurst Partnership (A Firm) [2004] EWHC 151 (Ch); Times, 27 February 2004; Gazette, 04 March 2004
5 Feb 2004
ChD
Mann, The Honourable Mr Justice Mann
Wills and Probate, Professional Negligence
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client. Held: The solicitors were under a duty to ensure that the will would ostensibly have been properly executed according to the facts known to them. In this case such a duty was assumed additionally by the solicitor checking it. The solicitor was liable.
1 Cites

[ Bailii ]
 
Emerson (Executrix of James Henry Emerson) v Estate of Thomas Matthew Emerson Times, 03 March 2004; Gazette, 11 March 2004; [2004] EWCA Civ 170
5 Feb 2004
CA
Brooke, Chadwick, Scott Baker LJJ
Wills and Probate, Company
Two brothers farmed in partnership. The partnership was dissolved in 1998 on the death of one brother, but the business continued. The farm was affected by the foot and mouth outbreak in 2001, and the second brother died shortly after. Compensation became payable, and the two sets of executors sought directions as to how the compensation was to be accounted for. Held: S42(1) had no application. The money constituted a post cessation capital receipt, and could not be deemed to have been part of profits. As such it fell to be distributed under s24(1).
Partnership Act 1890 24(1) 42(1)
1 Cites

[ Bailii ]
 
Leon Rhys Morgan As Attorney of Sir Peter Shaffer v Diane Cilento, Carolyn Shaffer, Claudia Shaffer, Cressida Shaffer, Marie Josette Capece Minutolo [2004] EWHC 188(Ch); [2004] WTLR 457
9 Feb 2004
ChD
The Honourable Mr Justice Lewison
Wills and Probate, Family
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not apply. Held: He had acquire a domicile of choice in Australia. His return to England was not sufficiently unconditional to evidence abandonment of his Australian domicile. "it may be that his intention to return to Queensland was withering. But I do not consider that it died before Anthony did. "
Inheritance (Provision for Family and Dependents) Act 1975
1 Cites

1 Citers

[ Bailii ]
 
Atkins v Dunn and Baker (A Firm) [2004] EWCA Civ 263
19 Feb 2004
CA
Lord Justice Pill Lord Justice Thomas Lord Justice Jacob
Professional Negligence, Wills and Probate
The claimant's father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed that the claimant was owed a duty of care. The recorder had concluded that there was no duty further to chase a client who may not have wished to take the matter any further. Held: There may not always be a duty to chase up a client. This client was known to be meticulous, and his failure to reply seen properly as choosing not to go ahead. The appeal failed.
1 Cites

[ Bailii ]

 
 Perotti v Watson and others; CA 26-Feb-2004 - [2004] EWCA Civ 269
 
CI v NS (Revised 1) [2004] EWHC 659 (Fam)
19 Mar 2004
FD

Wills and Probate, Litigation Practice
The executor sought to appeal an order made on behalf of a residuary beneficiary that he produce accounts in an estate. The order had been made in his absence, and with a costs order. Held: To avoid a breach of natural justice, time should be extended to allow an appeal.
Administration of Estates Act 1925 25
[ Bailii ]
 
Jemma Trust Company Limited v Kippax Beaumont Lewis and others [2004] EWHC 703 (Ch)
1 Apr 2004
ChD
Mr Justice Evans-Lombe
Wills and Probate, Professional Negligence

1 Cites

1 Citers

[ Bailii ]
 
Josephine Murray As Individual and As Executor Nominate of Joseph Murray Kirsten Allardice Andrew Allardice Josephine Murray As Executor Nominate of the Late Mary Murray v the Greenock Dockyard Company Limited [2004] ScotCS 10; 2004 SLT 1104
30 Apr 2004
OHCS
Lord Hamilton And Lord President And Lord Weir
Scotland, Wills and Probate

1 Cites

[ Bailii ] - [ ScotC ]

 
 Couwenbergh v Valkova; CA 27-May-2004 - [2004] EWCA Civ 676
 
Pennington and others v Crampton and others [2004] EWCA Civ 819
17 Jun 2004
CA
Waller, Chadwick LJJ
Company, Wills and Probate
Application for permission to appeal against proposal of Tomlin Order
1 Cites

[ Bailii ]
 
Al-Bassam v Al-Bassam [2004] EWCA Civ 857; Times, 22 July 2004
1 Jul 2004
CA
Sir Andrew Morritt VC, Lord Justice Chadwick, Lord Justice Carnwath
Jurisdiction, Wills and Probate
The claimant sought administration of her husband's estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia. Held: The real issue was as to whether Sharia law should be applied and whether the will was executed properly. Issues to be decided by a court in Saudi would follow the decisions to be made first by the English court. Case management directions were to be made to bring before the English court the issues which that court can, and should, decide before addressing issues of Islamic law. The perpetual restraint against the defendant issuing proceedings in Riyadh was lifted, and the claimant was to be allowed to amend her pleadings.
1 Cites

[ Bailii ]
 
Ramlort Ltd v Michael James Meston Reid [2004] EWCA Civ 800; [2004] BPIR 985
8 Jul 2004
CA
Lord Justice Jonathan Parker Lord Justice Judge Lord Justice Waller
Insolvency, Wills and Probate, Trusts
The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the declaration of trust was ineffective as a transaction at an undervalue. The company appealed an order which returned to it the payments it had made, but that the balance was held for the insolvent estate. They said that at the time the payments were made, they were for full value. Held: To have a transaction at an undervalue by an 'individual' within the sections, the value in money or money's worth, from the debtor's point of view, of the consideration for which he enters into the transaction must be 'significantly less' than the value in money or money's worth, again from the debtor's point of view, of the 'consideration provided' by the debtor. The value in money or money's worth of the totality of whatever it is that the debtor is parting with under the transaction. There is no absolute need to ascribe exact values before making that judgment. There had been a transaction at an undervalue, and the order was correct.
Insolvency Act 1986 339
1 Cites

1 Citers

[ Bailii ]
 
Pla and Puncernau v Andorra 69498/01; [2004] ECHR 334; (2006) 42 EHRR 25; [2004] 2 FCR 630
13 Jul 2004
ECHR

Human Rights, Wills and Probate, Adoption
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to pass to the children and grandchildren of the testatrix's daughters. She died in 1949. In 1995 Francesc-Xavier made a will in favour of his wife, but in a codicil he left the assets inherited under his mother's will to his wife for life and then to their adopted son Antoni, who was born in 1966 and adopted by them, in Spain, in 1969. The assets were described in the report as real estate. Francesc-Xavier died in 1996.
Two great-granddaughters of the testatrix applied to the Tribunal des Batlles to have the codicil declared void. That Tribunal dismissed the application on the basis that the case was governed by the testatrix's intention determined by the terms of her will, that there was no statutory or constitutional provision relating to adopted children at that time in Andorra, that customary law was derived partly from Roman law under which adopted children ranked equally with natural-born children, and accordingly the testatrix, by making no express exclusion of adopted children, should not be taken to have excluded them by implication. I understand that legislation was introduced in 1958 putting adopted children on an equality, but that this did not affect the matter.
The great-granddaughters appealed, and in 2000 the High Court of Justice allowed the appeal and set aside the codicil in its entirety. It agreed that the matter was governed by the testatrix's expressed intention when she made her will, and that Antoni could not rely on the legislation of 1958. But it was significant that in the first half of the 20th century adoption was virtually unknown in Andorra, that provisions of Roman law 'could not easily be transposed' to Andorran families living at that time, that in any event the relevant Spanish legislation (under which Antoni had been adopted) gave an adopted child rights of inheritance from his or her adoptive parents but not from more remote family members; so that, by not explicitly including adopted children, the testatrix should not be taken to have intended to include her son's adopted son.
Antoni and his mother made two attempts to have this ruling annulled by the national courts in Andorra, but those attempts failed. They then brought the claim in the ECHR, saying that the appeal court had acted in breach of articles 8 and 14 by allowing the appeal from the decision of the Tribunal, and they maintained that the case should be governed by private law in the light of Andorran law in force in 1996, when Francesc-Xavier died, and the Convention. The ECHR took the relevant national legislation to be that in force in 1939 and 1949 (rather than 1996).
The government of Andorra took a preliminary point that no relevant 'family life' was affected because Antoni had been adopted 20 years after the testatrix had died, but the ECHR ruled unanimously that inheritance by children and grandchildren does fall within the scope of article 8, The Court was divided on the main issue, with a majority concluding that Antoni's rights under articles 8 and 14 had been infringed, but with two members of the court, namely Judge Bratza and Judge Garlicki, dissenting. The majority began by pointing out that previous cases of this kind before the ECHR had concerned the discriminatory effect of statutes in various member states, whereas the instant case related to the interpretation or construction of a testamentary disposition. They went on to record the principle that domestic law should normally be determined by the domestic courts, all the more so with a disposition such as a will. 'Accordingly . . an issue of interference with private and family life could only arise under the Convention if the national courts' assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.'
The majority went on to find that the decision of the appeal court was blatantly inconsistent with the Convention: 'In the present case the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant's father [Francesc-Xavier] is indisputable. The sole remaining question is therefore whether the notion of 'son' in [the testatrix's] will extended only, as the [appeal court] maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so, but as she did not the only possible and logical conclusion is that this was not her intention.
'The [appeal court's] interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it.
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court's interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
In the present case the [appeal court's] interpretation of the testamentary disposition in question had the effect of depriving the first applicant [Antoni] of his right to inherit under his grandmother's estate and benefiting his cousin's daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant [Antoni's mother] losing her right to the life tenancy of the estate assets left her by her late husband.
Since the testamentary disposition, as worded by [the testatrix], made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child's inheritance rights.'
'The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for states, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the Member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix's death, namely in 1939 and 1949, particularly where a period of 57 years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills : any interpretation should endeavour to ascertain the testator's intention and render the will effective, while bearing in mind that "the testator cannot be presumed to have meant what he did not say" and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court's case law.'
European Convention on Human Rights
1 Cites

1 Citers

[ Worldlii ] - [ Bailii ]
 
Sherrington v Sherrington [2004] EWHC 1613 (Ch)
13 Jul 2004
ChD
The Hon Mr Justice Lightman
Wills and Probate
The deceased had divorced and remarried. His children challenged the will made after his second marriage. Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. The evidence of the widow was not credible, and the grant of probate was revoked.
1 Cites

1 Citers

[ Bailii ]
 
Uglow v Uglow and others [2004] EWCA Civ 987; [2004] WTLR 1183.
27 Jul 2004
CA
Lord Justice Mummery, Lord Justice Waller Lord Justice Jonathan Parker
Wills and Probate, Estoppel
The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel. Held: The judge was right to have found that the promise was bound up with the claimant being a partner in part of the farm. That partnership had later foundered. The earlier assurance was not irrevocable, and no estoppel arose.
1 Cites

1 Citers

[ Bailii ]
 
Wade v Grimwood [2004] EWCA Civ 999
28 Jul 2004
CA
Lord Justice Ward Lord Justice Jacob and Sir Martin Nourse
Wills and Probate
The claimant and the deceased had cohabited for many years. She died intestate, and her mother inherited her estate. His claim had been largely successful, but he now appealed, wanting all the proceeds of sale of the home. The home had been divided according to a declaration of trust, 80 per cent in his favour, but he now said she had not made the contributions anticipated. Held: This was not an accounting situation but one of set-off, each obligation being enforceable immediately, subject, in the event of a cross-claim, to a right of set-off in the party against whom the obligation is sought to be enforced. The payments had been made from a joint account from which either could draw, and this operated as a waiver against the claimant: 'The judge, who saw and heard the claimant give evidence, must have thought that he had made it clear to the deceased that he was not going to enforce any right to reimbursement against her and that she had ordered her affairs accordingly. As between parties living happily together, that is surely enough to establish waiver. It is not appropriate to insist on the formalities of waiver in its application to an informal relationship.'
1 Cites

[ Bailii ]
 
Randall v Randall [2004] EWHC 2258 (Ch); [2005] WTLR 119
30 Jul 2004
ChD
Bartley Jones QC
Wills and Probate, Undue Influence
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence. Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been a difficult and eccentric character. In this case the defendant had failed to rebut the evidential presumption of undue influence. Trust and confidence had been placed by the deceased in the defendant, and the transactions called for an explanation which was not given.
1 Cites

[ Bailii ]
 
Myers v Myers and Orhers [2005] WTLR 851; [2004] EWHC 1944 (Fam)
3 Aug 2004
FD
Munvy J
Family, Wills and Probate
The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers

[ Bailii ]
 
In re Ross, deceased Times, 24 November 2004
10 Nov 2004
ChD
Kosmin QC
Wills and Probate
The deceased owned an apartment subject to a mortgage. He left it in his will to his fiancee. There was a dispute as to whether the property was left subject to the mortgage. He had taken out an endowment policy to repay the mortgage on his death. Held: The Act provided that the property should be taken subject to the charge unless the deceased indicated some contrary intention. The fact that the will did not say anything was not conclusive. He had taken out an endowment insurance policy to repay the charge on his death. This deliberate arrangement of his affairs was sufficient 'contrary or other intention' to mean that the property was to be taken free of the charge.
Administration of Estates Act 1925 35

 
Hoff and others v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99
19 Nov 2004
CA
Peter Gibson LJ, Chadwick LJ
Wills and Probate
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that she understood it, and that it represented her wishes. He then witnessed the will. The testatrix later came to suffer dementia. The family sought to say that she lacked capacity. Held: The test for mental capacity is not monolithic, but is tailored to the task in hand.
The Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect.
Proper procedures had been undertaken to ensure that the will was properly executed and witnessed, and there was evidence that the testatrix had capacity. There was no suggestion of any undue influence. The appeal failed.
Chadwick LJ said: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity — the ability to understand what is being done and its effect — is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not."
and "Further, it may well be that where there is evidence of a failing mind — and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred."
1 Cites

1 Citers

[ Bailii ]
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.