Tag: Wills and Probate

Wilson v Lassman: ChD 7 Mar 2017

Claim for revocation of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Held: The will of the deceased was properly executed and attested in compliance with statute and is valid. The court considered the presumption of due execution of a will: ‘where the will contains . . an attestation clause, ‘the strongest evidence’ is required to rebut the presumption of due execution . . the importance and weight to be attached to that presumption is both principled and practical. It reflects, in terms of practicality, the reality that those attesting a will may well be called upon to recollect the circumstances of execution a very long time after attestation has taken place and where memories of facts which are not, to the attesting witnesses, of any particular importance may well have diminished, or disappeared. In terms of principle, it leans in favour of giving effect to the validity of a will, which, in its turn, gives effect to the testator’s intentions, rather than, potentially negating those intentions.’
Here, it was common ground that the attestation clause did not accurately reflect that which occurred. The will was not signed by the deceased in the presence of the attesting witnesses. The will was already signed by the deceased before being provided by the deceased to the attesting witnesses to sign as witnesses and, therefore, that even if the circumstances of their attestation constitute a valid execution of the will it is a different form of due execution to that asserted in the attestation clause. The presumption could not be relied upon.
However, the evidence did establish that the signed will was produced to the witnesses and the signature acknowledged.

Judges:

Bowles M

Citations:

[2017] EWHC 85 (Ch)

Links:

Bailii

Statutes:

Wills Act 1837 9, Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Wright v Rogers 1869
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .
Cited – Kayll v Rawlinson ChD 2010
The parties disputed the validity of a will.
Held: (obiter) David Richards J said that because it was common ground that the terms of the attestation clause did not reflect the manner in which the signing of the will by the testator had been . .
Cited – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .

Cited by:

Cited – Wrangle v Brunt and Another ChD 6-Jul-2020
Challenge to purported wills as forgeries.
Held: Though the will was not executed as described in the attestation clause: ‘On the totality of the evidence before me, I am satisfied Dean understood and approved what was in the will when it was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 December 2022; Ref: scu.579955

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’

Citations:

Gazette 15-Jul-1998, Times 10-Jun-1998

Jurisdiction:

England and Wales

Citing:

Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Wills and Probate

Updated: 09 December 2022; Ref: scu.80378

Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased): ChD 12 Nov 2008

The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the estate to his trustee.
Held: The value of the estate was payable to the trustee in bankruptcy. Once the right vested in the trustee, it could not revert to the bankrupt on release. ‘ the Trustee has never had any proprietary interest in Mrs. Hemming’s half-share of the cottage, or in the proceeds of sale of that specific property. Accordingly, if and to the extent that the Trustee asserted any present entitlement to the proceeds of sale in the hands of Raymond Saul and Co., that claim was unjustified. ‘

Judges:

Richard Snowden, QC

Citations:

[2008] EWHC 2731 (Ch), Times 09-Dec-2008, [2008] WTLR 1833, [2008] NPC 122, [2009] 2 WLR 1257, [2009] Ch 313

Links:

Bailii

Statutes:

Insolvency Act 1986 283(1) 306(1) 436

Jurisdiction:

England and Wales

Citing:

Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

Cited by:

Principal judgment – Raymond Saul and Co (A Firm) v Holden and Another ChD 16-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency

Updated: 04 December 2022; Ref: scu.277939

Anstey v Mundle and Another: ChD 25 Feb 2016

The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having considered the factors as set out in Hartshorne, an order was to be made for his return to Jamaica.

Judges:

Mr Jonathan Kleene

Citations:

[2016] EWHC 1073 (Ch), [2016] WTLR 931, [2016] Inquest LR 47

Links:

Bailii

Statutes:

Senior Courts Acts 1981 116

Jurisdiction:

England and Wales

Citing:

Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Cited – Scotching v Birch ChD 2008
When a court is asked which of several people may be appointed administrator of a deceased’s estate section 116 jurisdiction is capable of being engaged. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Applied – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 26 November 2022; Ref: scu.618959

University Hospital Lewisham NHS Trust v Hamuth and others: ChD 23 Jan 2006

The body of the deceased had been retained by the hospital pending resolution of legal proceedings relating to his death. No grant had been yet obtained in the estate.
Held: In the absence of anybody else with authority, the hospital having charge of it, has both the duty and the right to decide on how the body should be dealt with.

Judges:

Hart J

Citations:

[2006] EWHC 1609 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .

Cited by:

Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 November 2022; Ref: scu.245413

Barron v Woodhead and Another: ChD 25 Jun 2008

The claimant sought provision under the 1975 Act from the estate of his deceased wife.

Judges:

Behrens J

Citations:

[2008] WTLR 1675, [2008] Fam Law 844, [2008] EWHC 810 (Ch), [2009] 1 FLR 747, [2009] 2 FCR 631

Links:

Bailii

Statutes:

Inheritance (Provision For Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 23 November 2022; Ref: scu.346875

Rittson-Thomas and Others v Oxfordshire County Council: ChD 9 Mar 2018

Citations:

[2018] EWHC 455 (Ch)

Links:

Bailii

Statutes:

School Sites Act 1841

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rittson-Thomas and Others v Oxfordshire County Council CA 21-Feb-2019
. .
At ChD – Rittson-Thomas and Others v Oxfordshire County Council SC 23-Apr-2021
If land has been donated under the 1841 Act, and the school later moves to a new site, can the original site be sold to help pay for the costs of the new school? . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 November 2022; Ref: scu.605845

Schrader v Schrader: ChD 11 Mar 2013

Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the preparation of the later will was shown to be false by the amendments in his handwriting to the draft. There was no irrationality on the face of the will so as to remove the presumption that she had capacity, and indeed the evidence supported that. The evidence was that she understood knew what she was doing and its effect, and therefore. It could not be criticised a being executed with want of knowledge and approval.
As to undue influence: ‘It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles. ‘ The undue influence was found to be proved: ‘Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in doing so he took advantage of her vulnerability. It is not possible to determine any more than that the precise form of the pressure, or its occasion or occasions, but it is not necessary to do so. I am satisfied that this will results from some form of undue influence.’

Judges:

Mann J

Citations:

[2013] EWHC 466 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
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 . .
Cited – Re Loxston, Abbot v Richardson ChD 4-May-2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
Cited – Wharton v Bancroft and Others ChD 30-Jan-2012
The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting . .
Cited – Edwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 28 October 2022; Ref: scu.471578

Ram and Another v Chauhan and Another: Misc 19 Jul 2017

Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence

Judges:

Saffmann HHJ

Citations:

[2017] EW Misc 12 (CC)

Links:

Bailii

Statutes:

Wills Act 1837 9

Jurisdiction:

England and Wales

Citing:

Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited – Re Loxston, Abbot v Richardson ChD 4-May-2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
Cited – Edwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Cited – Hawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
Cited – Simon v Byford and Others CA 13-Mar-2014
The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Estoppel, Undue Influence

Updated: 28 October 2022; Ref: scu.590780

Birdseye and Another v Roythorne and Co and Others: ChD 15 Apr 2015

The claimant sought disclosure from the executors of various documents from the estate which might eb protected by privilege.
Held: Such a request must be supported by some evidence at least that the applicant might be a beneficiary.

Judges:

Newey J

Citations:

[2015] EWHC 1003 (Ch), [2015] WLR(D) 169

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Wills and Probate

Updated: 24 October 2022; Ref: scu.545432

Gill v Woodall, Lonsdale and The Royal Society for the Prevention and Cruelty To Animals: ChD 22 May 2008

The daughter of the deceased challenged the will, saying that her mother had not known and approved the contents of her will which left the entire contents of her estate to charity.

Judges:

Norris J

Citations:

[2008] EWHC 1326 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 October 2022; Ref: scu.377222

King Arthur Pendragon, Regina (on The Application of) v Ministry of Justice: Admn 23 Aug 2011

The claimant sought review of a licence granted by the respondent for the temporary exhumation of human remains from the historical site at Stonehenge. He said that desppite the terms of the order allowing the disinterment, the licensee had said that he did not wish the bodies to be returned but rather that they should be exhibited in a museum.
Held: Despite the admission by the licensee that that would be his preferred option, there was no evidenc brought by the claimant that the respondent had any intention to alter the terms of the licence. The request failed.

Judges:

Wyn Williams J

Citations:

[2011] EWHC 2607 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 20 September 2022; Ref: scu.445482

Murray v King’s Advocate: SCS 18 Feb 1502

A bastard leaving a wife, but no children, the King’s donatary has right to the whole heritage and heirship moveables; also to the half of the other moveables, under burden of the bastard’s debts, funeral expences, andc. The relict has right to the remainder of the moveables.

Citations:

[1502] Mor 1346

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 15 September 2022; Ref: scu.543968

The Official Solicitor To The Senior Courts v Yemoh and Others: ChD 15 Dec 2010

The deceased had died intestate in 1985, and the administration concluded only lately by the Official Solicitor, who now sought guidance from the court on the administration of the estate, given that he had been party to eight customary polygamous (but lawful) marriages, with associated numbers of children.

Judges:

Elleray QC J

Citations:

[2010] EWHC 3727 (Ch)

Links:

Bailii

Statutes:

Judicial Trustee Act 1896, Administration of Estates Act 1925 46(1)

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 13 September 2022; Ref: scu.440435

Barraclough v Mell and others: ChD 1 Dec 2005

Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: The trustee exemption clause was effective to protect the executor as such. She had acted mistakenly and negligently, but honestly. However, in her additional capacity as an overpaid beneficiary, she was liable to repay the sums. Also the rule against double portions applied to require repayment by one recipient of a mispayment.

Citations:

[2005] EWHC B17 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Allcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – In re Pollock; Pollock v Worrall 1885
An example of a gift which is made under a special consideration is where the gift satisfies a particular moral duty identified in the will. . .
Cited – In re Vaux CA 1939
The term ‘portion’ has a ‘qualitative significance’ as well as purely quantitative significance. As to the doctrine of ademption: (Sir Wilfrid Greene MR) ‘The rule against double portions rests upon two hypotheses; first of all, that under the will . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 07 September 2022; Ref: scu.236337

Boswell and Others v Lawson and Others: CA 19 Apr 2011

The claimants sought rectification of the will, saying that it did not represent his testamentary wishes. A solicitor’s letter explaining the effect was mistaken. The judge had found the error to be in the letter, and not the wills.
Held: The appeal failed: ‘it seems to me that by some way the most probable reconciliation of the facts is that the wills did correctly reflect the instructions given by Mr and Mrs Appleby.’

Judges:

Jacob, Lloyd, Wilson LJJ

Citations:

[2011] EWCA Civ 452

Links:

Bailii

Statutes:

Administration of Justice Act 1982

Jurisdiction:

England and Wales

Wills and Probate

Updated: 06 September 2022; Ref: scu.432833

D’Abo v Paget and Others (No 2): ChD 10 Aug 2000

Where a beneficiary having brought successful action against the trust fund, the rule in In re Buckton should still apply, but where the trustees could have brought the same action themselves, and had been ready and willing to do so, the beneficiary should not be awarded costs out of the trust fund. Under the new procedure, the court should take a more robust attitude to such claims. In effect the sole reason for the claimant’s participation was to make a claim for costs if the trustees failed.

Citations:

Gazette 05-Oct-2000, Times 10-Aug-2000

Jurisdiction:

England and Wales

Trusts, Wills and Probate, Costs

Updated: 06 September 2022; Ref: scu.79774

Marley and 11 Others v Mutual Security Merchant Bank and Trust Co Ltd Co: PC 15 Oct 1990

BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
Lord Oliver of Aylmerton said: ‘A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his position by seeking the guidance of the court.’
He also said: ‘The question whether the trustee has demonstrated that the contract submitted for approval is in the best interests of the beneficiaries reduces, in such a case as this, to whether the trustee can satisfy the court that it has taken all the necessary steps to obtain the best price that would be taken by a reasonably diligent professional trustee. The question may equally well be expressed as whether the trustee has shown that it has fully discharged its duty. That question may appear to be very similar to the question whether to enter into the contract without taking further steps and without seeking the directions of the court would justify an action by the beneficiaries for misconduct justifying the removal of the trustee. Nevertheless there is an essential distinction in that, in such an action, the beneficiaries would be required to assume the positive burden of demonstrating a breach of fiduciary duty. A failure to do so does not demonstrate the converse, namely that the transaction proposed, because not proved to be a breach of fiduciary duty, is therefore one which is in the interest of the beneficiaries’ . . and ‘In the Court of Appeal, Rowe P regarded it as doubtful whether the respondent, having entered into the conditional contract, could even investigate an alternative offer, but regarded that offer in any event as unworthy of serious consideration because the respondent had no knowledge of the financial stability of the proposed purchaser and because, in postponing conclusion of the conditional contract whilst the matter was investigated, the respondent risked losing the ‘bird in the hand’. . .
What the Court of Appeal appears to have overlooked entirely was that, having regard to the course which it was proposed to take as regards the obviously unsatisfactory features of the conditional contract – that is to say the treatment of moneys falling due to the estate up to the closing date and in the interest-free postponement of a substantial part of the consideration – the ‘bird in the hand’ argument ceased to have any validity at all, for the effect of the order proposed and finally made was that the respondent had, in any event, to reject the conditional contract as it stood and to negotiate fresh terms with the purchaser if it proved willing to consider them.’

Judges:

Lord Oliver of Aylmerton

Citations:

[1991] 3 All ER 198, [1990] UKPC 44

Links:

Bailii

Statutes:

Trustee Act 1956 66

Jurisdiction:

England and Wales

Cited by:

Cited – John Weth and Others v Her Majesty’s Attorney General and Others CA 23-Feb-2001
A charitable trust had been established. Protracted disputes had taken place, and the burden of the costs required to be apportioned. The financial practices of the charity had been informal leading to confusion, and dissension. An intervention by . .
Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .
See Also – Marley and Others v Mutual Security Merchant Bank and Trust Co Ltd Co PC 2-Feb-1995
(Jamaica) . .
Lists of cited by and citing cases may be incomplete.

Banking, Wills and Probate

Updated: 02 September 2022; Ref: scu.429845

Hope and Another v Knight: ChD 15 Dec 2010

The separated widow and the deceased’s daughter sought reasonable provision from the estate.

Judges:

Purle QC HHJ

Citations:

[2010] EWHC 3443 (Ch), [2011] WTLR 583

Links:

Bailii

Statutes:

Inheritance (Provisions for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter?
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 September 2022; Ref: scu.428424

Barrass v Harding: CA 27 Jun 2000

Elizabeth Butler-Sloss

Judges:

Elizabeth Butler-Sloss D P, Thorpe LJ

Citations:

[2000] EWCA Civ 521, [2000] Fam Law 878, [2001] 1 FLR 138, [2000] WTLR 1071, [2001] 1 FCR 297

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants Act) 1975 2

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 31 August 2022; Ref: scu.428030

Perrins v Holland and Others: CA 8 Dec 2010

The court heard an appeal as to costs.

Citations:

[2010] EWCA Civ 1398

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
See Also – Perrins v Holland and Others ChD 21-Oct-2009
. .
See Also – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 28 August 2022; Ref: scu.426904

Gray v Richards Butler (A Firm): ChD 24 Jun 1996

Solicitors were not entitled to payment of their costs in the administration of the estate after the will had been challenged.

Judges:

Lloyd J

Citations:

Gazette 02-Aug-1996, Times 23-Jul-1996

Jurisdiction:

England and Wales

Cited by:

Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions, Costs

Updated: 24 August 2022; Ref: scu.80995

H v Mitson and Others: FD 1 Dec 2009

Judges:

Eleanor King J

Citations:

[2010] 1 FLR 1613, [2009] EWHC 3114 (Fam)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

Cited by:

Appeal from – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of pounds 50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 22 August 2022; Ref: scu.421344

Re Seaford Dec’d: CA 1968

A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made.
Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband’s death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.

Judges:

Willmer LJ, Davies LJ

Citations:

[1968] P 53

Jurisdiction:

England and Wales

Cited by:

Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Wills and Probate

Updated: 20 August 2022; Ref: scu.267521

Re Besterman, decd: CA 1984

In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable’ is nowhere mentioned, although the parties’ financial needs – which have been construed to mean `reasonable requirements’ – constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard’ and the overriding consideration is what is `reasonable’ in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court’s attention.’

Judges:

Oliver LJ

Citations:

[1984] Ch 458

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2, Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Cited by:

Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Jessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
Approved – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
Cited – Moorhead v Moorhead ChNI 11-Jan-2002
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 . .
Preferred – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
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 . .
Cited – Barron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 19 August 2022; Ref: scu.196901

Fuller v Strum: ChD 20 Dec 2000

Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that the will had been properly executed, but the claimant brought an expert handwriting witness to say that the signature was a forgery.
Held: The court was entitled to give precedence to the lay witnesses. A handwriting expert had a different status to a medical or other witness.

Judges:

Mr Jules Sher QC

Citations:

Gazette 08-Feb-2001, Times 14-Feb-2001, [2001] WTLR 677

Jurisdiction:

England and Wales

Citing:

Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Cited by:

Appeal from – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
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. . .
At First Instance – Fuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
At first instance – Fuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 14 August 2022; Ref: scu.80708

Hooper v Fynmores: ChD 21 Jun 2001

The elderly testator had wanted to make a new will which would have increased the claimant’s share of his estate by one eighth. The appointment to sign the will was cancelled when the solicitor was himself hospitalised, and the testator died before the second appointment. The solicitors appealed on the basis that the finding against them effectively imposed a higher duty to the beneficiary than would have been due to the testator.
Held: The appeal was dismissed. In undertaking to prepare a will, the solicitor entered into a special relationship with the beneficiaries, an incident of which was a duty to them to act with due expedition and care. The proposed appointment should not have been cancelled without enquiry as to the testator’s health and considering whether to send a substitute. It should not have been missed without the client’s consent.

Citations:

Gazette 21-Jun-2001, Times 19-Jul-2001

Jurisdiction:

England and Wales

Professional Negligence, Wills and Probate, Legal Professions

Updated: 06 August 2022; Ref: scu.81463

Moody v Stevenson: CA 12 Jul 1991

The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose.
Held: The court considered the application of section 3(2): ‘and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.’
Waite J said: ‘The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law.’ and ‘In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?’ If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?” and ‘The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce.’ In this case, the result was an order permitting him to continue to occupy the house.

Judges:

Mustill LJ and Waite J

Citations:

[1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-1991, Times 30-Jul-1991

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3(2)

Jurisdiction:

England and Wales

Citing:

Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – In re Styler 1942
. .

Cited by:

Cited – Jessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
Cited – Moorhead v Moorhead ChNI 11-Jan-2002
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 . .
Not preferred – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
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 . .
Cited – Barron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 05 August 2022; Ref: scu.196902

Perrins v Holland and Others: ChD 21 Oct 2009

Judges:

Lewison J

Citations:

[2009] EWHC 2558 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Main judgment – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .

Cited by:

Costs at First Instance – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Appeal from – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
See Also – Perrins v Holland and Others CA 8-Dec-2010
The court heard an appeal as to costs. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 04 August 2022; Ref: scu.377217

In Re the Estate of B (Deceased): ChD 26 Jan 1999

A dependency of a mother on her disabled daughter was not established by the making of payments by Court of Protection out of the estate during her life for the upkeep etc of a house for the mother and daughter, though mother indirectly benefited.

Citations:

Times 26-Jan-1999, Gazette 17-Feb-1999

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 July 2022; Ref: scu.82237

In Re the Estate of John Watson (Deceased): ChD 31 Dec 1998

Couples live together as men and wives, in many and various ways, and assessments of relationships should be seen, for the purposes of the Act, from the point of view of a reasonable man, but within that variety. The test as to whether the couple were living in the same household as husband or wife of the deceased is an objective one.

Judges:

Neuberger J

Citations:

Times 31-Dec-1998, Gazette 27-Jan-1999, Gazette 13-Jan-1999, [1999] 1 FLR 878

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 July 2022; Ref: scu.82238

Olins v Walters: ChD 19 Dec 2007

A claim was made for the proof of a will and of a codicil as a mutual will.
Norris J said of one witness: ‘I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document one or two decades ago) but upon a reconstruction of what she would have done having regard to her inability to recollect the Deceased’s attendance at Battersea and her willingness to do whatever Mr Walters requested. I am also alert to the danger that recollection can be coloured by the context in which it is invited.’

Judges:

Norris J

Citations:

[2007] EWHC 3060 (Ch), [2008] WTLR 339

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 July 2022; Ref: scu.341757

Regina v Investor’s Compensation Scheme, ex Parte Bowden: QBD 17 Feb 1993

The Investors’ Compensation Scheme must exercise discretion in quantifying a claim. An investor’s right to make a claim under the scheme survives his death and passes to his personal representative.

Citations:

Independent 17-Feb-1993, Gazette 07-Apr-1993

Statutes:

Financial Services Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another CA 30-Jun-1994
The Scheme must award compensation in accordance with accepted methods of calculating damages. It had no authority to limit payment of legal fees of applicants to andpound;500.00. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Financial Services

Updated: 23 July 2022; Ref: scu.86956

In Re the Estate of Ronald Ernest Chittock (Deceased); Chittock v Stevens and Others: ChD 5 Apr 2000

A widow had thought that she was to receive the bulk of her husband’s estate by survivorship, but discovered, only out of time and after the six months limit, that this was not the case. She applied for leave to apply out of time to rectify the will, saying that the revocation of the necessary provision was an error.
Held: The application should be decided on similar principles to applications for an extension of time under the Inheritance etc Act. The failure to proceed arose from a fundamental mistake as to the value of the estate. The beneficiaries had operated under the same misapprehension, and had not therefore acted to their detriment because of the delay. Leave was given.

Judges:

David Donaldson QC

Citations:

Times 05-Apr-2000, (2000) 1 WTLR 643

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Administration of Justice Act 1975 4

Jurisdiction:

England and Wales

Citing:

Distinguished – Escritt v Escritt 1981
. .
Cited – In re Salmon (Deceased) 1981
The time limit under the 1975 Act is ‘a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 21 July 2022; Ref: scu.82244

M’Caig v University of Glasgow: SCS 18 Dec 1906

The heir in heritage of the late Mr M’Caig of Oban seeks to establish her rights as such, notwithstanding the fact that he has made a testament in favour of trustees, and has directed them to hold his estate and to apply the proceeds in doing certain things on the estate. She does not impugn the deed on the ground of mental incapacity. She attacks it on the ground that it does not give any disposal of the estate for the benefit of any person or class of persons, and is in no better position to exclude her than if it had simply disinherited her without putting anyone in her place, which it is plain would not have invalidated her right as heir.

Judges:

Lord Stormonth-Darling

Citations:

[1906] ScotCS CSIH – 2, 1907 SC 231, (1906) 14 SLT 600

Links:

Bailii

Scotland, Wills and Probate

Updated: 21 July 2022; Ref: scu.279270

Sammut and others v Manzi and others: PC 4 Dec 2008

(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole. Sometimes it is legitimate to have regard to extrinsic evidence in order to show that words used had a special meaning to the testator, but it has not been suggested that this is such a case.
Extrinsic evidence of the testator’s intention may also be admissible to resolve uncertainty or ambiguity . .
There were placed before their Lordships no less than 17 decided cases, some of which involved decisions on wording that bore some similarity with that used in the present case. Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction.’

Judges:

Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2008] UKPC 58, [2009] 1 WLR 1834, [2009] 2 All ER 234

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Wills and Probate

Updated: 21 July 2022; Ref: scu.279093

Sprackling and others v Sprackling and Another: ChD 6 Nov 2008

Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage.
Held: Some rectifications were agreed. However, as to the rest, the sons had overstated the deceased’s concerns about the businesses, and the business position could not support their arguments for further rectification.

Judges:

Norris J

Citations:

[2008] EWHC 2696 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1982 20(1)

Jurisdiction:

England and Wales

Citing:

Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – In re Segelman (dec’d) ChD 1996
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 July 2022; Ref: scu.277569

Warner v Verfides: ChD 29 Oct 2008

The deceased bankrupt’s Autralian trustees sought disclosure of documents recording his dealings in the UK. Third party Swiss lawyers now sought to intervene to say that such disclosure would breach the confidence of many of their clients. Redactions were agreed, and the court now looked to the costs.
Held: The interveners’ human rights had been engaged by the request. The court considered the technical meaning of correspondence within article 8, saying ‘To construe the term as applying only to letters still in the possession of the writer or in the process of transmission to the intended recipient appears unduly restrictive. In ordinary parlance, the term would be expected to apply to exchanges of letters in whosever hands they happened to be. ‘ and the interveners’ Article 8 rights are engaged by an application for production of documents in the hands of Verfides that were generated in the course of, or otherwise relate to, the interveners’ business activities. After initial doubts, the interveners had conducted their objections properly. Trustees and interveners were to bear their own costs.

Judges:

John Martin, QC

Citations:

[2008] EWHC 2609 (Ch)

Links:

Bailii, Times

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Wills and Probate, Insolvency, Costs, Human Rights

Updated: 19 July 2022; Ref: scu.277551

Van Kwawagen v Royal National Lifeboat Institution and Another: ChD 9 Jun 2008

The charities said that the deceased had left a will making gifts to them. The family said there was no will. A will had been executed, and was said by some witnesses to have been found after the death, and one witness remembered the family member asking if the will could be ignored. It was not subsequently produced for probate.
Held: It was implausible to say that the witnesses had not seen the will, and the reconstituted will was admitted to probate.

Judges:

Sarah Asplin QC

Citations:

[2008] EWHC 2246 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 July 2022; Ref: scu.276670

In Re Hughes Deceased: ChD 8 Jan 1999

The deceased had made a will providing for her daughter and charities. She became ill, and lost capacity, and then her daughter died. Her son applied for a statutory will. This was ordered and prepared, but she died before the court could confirm that it could be sealed. The son applied for an order allowing it still to be sealed.
Held: The will could still be sealed, and admitted to probate. Section 97 laid down no formal requirement that a statutory will need be sealed while the testator was alive, and explicitly disapplied section 9 of the 1837 Act. The sealing was, under the Rules, only a part of the process of evidencing the will. The role and function of the Court at this point was ministerial, confirming that the order had been given effect properly.

Judges:

Weeks QC J

Citations:

Times 08-Jan-1999

Statutes:

Mental Health Act 1983 97(1)(c), Wills Act 1837 9, Court of Protection Rules 1994 93

Jurisdiction:

England and Wales

Wills and Probate

Updated: 19 July 2022; Ref: scu.81942

In Re Estate of Monica Dale Dec, Proctor v Dale: ChD 11 Feb 1993

The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her will, but was under a binding trust to deal with the assets subject to the mutuality trust in accordance with that trust. With the rules on mutual wills, the element of mutuality operates to extend the enforceability to allow others beyond the couple making the wills to enforce the gifts agreed to be made. The aim of the principle was to prevent one party who transferred assets relying upon the mutuality of the wills to protect them, from being defrauded. The doctrine did not depend upon the second testator having received a benefit under the first will. To be enforceable there had to be a legally binding contract to make and not to revoke wills and one testator had had to have died having performed his or her part of that bargain.

Judges:

Morritt J

Citations:

Gazette 07-Apr-1993, Times 16-Feb-1993, Independent 14-Apr-1993, [1993] 4 All ER 129

Jurisdiction:

England and Wales

Citing:

Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 July 2022; Ref: scu.81867

Borrows v HM Coroner for Preston: QBD 15 May 2008

The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral.

Judges:

Cranston J

Citations:

[2008] EWHC 1387 (QB), [2008] EWHC 1387 (Admin), [2008] Fam Law 984, [2008] 2 FLR 1225

Links:

Bailii

Statutes:

Cremation Regulations 1930 8

Jurisdiction:

England and Wales

Cited by:

Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Human Rights, Coroners

Updated: 17 July 2022; Ref: scu.270485

Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others: CA 8 Feb 2008

The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: ‘Sections 124 and 125 of the 1981 Act deal with access to documents, namely wills, that are under the control of the court. Those sections provide that wills are to be open to inspection ‘subject to the control of the High Court’. Rule 58 of the NCPR makes provision for the court to determine that a will shall not be open to inspection if such inspection ‘would be undesirable or otherwise inappropriate’. No procedure is laid down for seeking or resisting an order that a will is not to be open to inspection. ‘ However the process under which this and other wills had been sealed was not itself transparent and no reasons had been given. The claimant should be given opportunity to argue his case.

Judges:

Lord Phillips of Worth Matravers CJ, Thorpe LJ, Dyson Lj

Citations:

[2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327

Links:

Bailii

Statutes:

Supreme Court Act 1981, Non-Contentious Probate Rules 1987 3

Jurisdiction:

England and Wales

Citing:

Cited – Lewis v Lewis 1904
An executor owes no duty to inform a legatee of the terms of his legacy. . .
Appeal from – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .

Cited by:

Cited – Re Benmusa FD 14-Mar-2017
No Access to will of Princess Margaret
The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 July 2022; Ref: scu.264268

Paul v Constance: CA 8 Jul 1976

Judges:

Scarman LJ

Citations:

[1976] EWCA Civ 2, [1977] 1 WLR 527

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 12 July 2022; Ref: scu.262712

Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others: FD 5 Jul 2007

The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. None of the evidence presented remotely constituted evidence of what the claimant asserted. Though section 124 appeared to grant a full right to see a will lodged with the registry, that right was subject to a discretion in the court. As to his human rights claim that he was entitled to know: ‘The Human Rights Act was enacted and the Convention concluded in order to protect from interference and prejudice real rights and existing situations, not illusory rights or imaginary claims. A claimant is entitled to respect for the existence and development of his or her real family life under Article 8 and not for a fantasy family life, the product of his or her imagination. ‘ The claim failed.

Judges:

Sir Mark Potter P

Citations:

[2007] EWHC 1607 (Fam), [2007] WTLR 1129

Links:

Bailii

Statutes:

Non-Contentious Probate Rules 1987, Supreme Court Act 1981 124

Jurisdiction:

England and Wales

Citing:

Cited – In re: King George III 1822
The will of the Sovereign is not subject to probate. . .
Cited – Reichal v Magrath 1889
The court has an inherent jurisdiction to strike out all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. . .
Cited – In re Stollery 1926
A birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate. . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Jackson v Jackson and Pavan 1964
A properly issued birth certificate is prima facie evidence of the matters stated. . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .

Cited by:

Appeal from – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA 8-Feb-2008
The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: . .
Cited – Re Benmusa FD 14-Mar-2017
No Access to will of Princess Margaret
The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Human Rights

Updated: 11 July 2022; Ref: scu.254471

Gibbs v Harding and others: ChD 12 Jan 2007

The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was capable of being charitable, subject to the application of the 1976 Act. It therefore took effect as a gift to the Roman Catholic Diocese of Westminster on charitable trusts.

Judges:

Lewison J

Citations:

[2007] EWHC 3 (Ch)

Links:

Bailii

Statutes:

Race Relations Act 1976 34

Jurisdiction:

England and Wales

Citing:

Cited – Harrison v Gibson ChD 21-Dec-2005
The husband owned the family home. In a home-made will, he left it ‘in trust for’ his wife. She died leaving differing proportions to each child. On her death the children sought a declaration from the court as to their respective interests.
Cited – Mitford v Reynolds 1842
A gift was made to the native inhabitans of Dacca. It was challenged as being void.
Held: As to whether a gift was charitable, the same principles apply when a particular class of inhabitants of a locality are the beneficiaries as when the the . .
Cited – In Re Dominion Students’ Hall Trust 1947
A trust deed imposed a ‘colour bar’.
Held: The court upheld a scheme which removed the bar. However, notionally there could be two complementary charities ‘one for white and one for coloured students’. These notional trusts were not being . .
Cited – Attorney General v Webster 1875
A trust expressed to be for the benefit of a fluctuating body of individuals, such as the inhabitants of a locality, can only take effect as a charitable trust, if it has effect at all. . .
Cited – Goodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
Cited – Regina v District Auditor No 3 Audit District of West Yorkshire Metropolitan County Council ex parte West Yorkshire Metropolitan County Council 1986
. .
Cited – McPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
Cited – Re Mellody 1918
A gift to the schoolchildren of Turton was as valid a charitable gift as a gift to the inhabitants of the Borough would be. The gift was a gift ‘for purposes beneficial to a section of the community’; and the schoolchildren themselves were ‘a very . .
Cited – In re Smith 1932
A gift ‘unto my country England’ was construed as a charitable gift for the benefit of the inhabitants of England and, by analogy with the cases on gifts to a parish, town or city, as impressed with a trust that it be applied for charitable purposes . .
Cited – In Re Strakosch 1949
The court may construe a gift as impliedly limited to charitable purposes. Lord Greene MR said: ‘In Williams’ Trustees v Inland Revenue Commissioners the House of Lords has laid down very clearly that in order to come within Lord Macnaghten’s fourth . .
Cited – Williams’ Trustees v Inland Revenue Commisioners HL 1947
A trust was created by the memorandum and articles of association of a company. The overall objects of the company were to promote Welsh interests in London. The principal object of the trust was to create a centre in London ‘for promoting the moral . .
Cited – Morice v Bishop of Durham HL 1805
The court was asked whether a gift of residue to be applied ‘to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of’ was valid as being confined to purposes that were charitable.
Held: . .
Cited – Glazebrook v University of Leeds ChD 1944
The court upheld a charitable gift despite its uncertainty. . .
Cited – Peggs and Others v Lamb and Others ChD 20-Apr-1993
Where beneficiaries had dwindled and income increased, the class of beneficiaries was extended. A gift to a class of people would be construed to be charitable unless there was something in the gift to exclude the presumption. It had been submitted . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Charity, Discrimination

Updated: 09 July 2022; Ref: scu.247686

Wylde v Culver: ChD 12 Apr 2006

The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions there is no stated presumption that a discontinuing claimant should pay the costs down to the discontinuance. However I approach the question of costs on the basis that the Claimant, in seeking to discontinue, should ordinarily pay the costs, and that the onus lies with him to show why there should be some different order. Shortly stated, in the absence of some good reason for a different order, it can be taken that the action was wrongly brought. This, after all, would be the starting point if the action went to trial and was dismissed. ‘ In this case, the claimant had been reasonable in acting on the issues on which the action was based, and he should not be ordered to pay the costs on the discontinuance. No order for costs was made.

Judges:

George Bompas QC

Citations:

[2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Green v Briscoe 9-May-2005
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Wills and Probate

Updated: 06 July 2022; Ref: scu.241462

Goodchild v Goodchild: ChD 13 Dec 1995

The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but nevertheless, fell short of having full and explicit status as mutual wills. Even so they could still create a trust, with a like result. The court granted an order under section 2 of the 1975 Act on the ground that wife’s mistaken belief that the terms of the wills were mutually binding imposed a moral obligation on the deceased. That constituted a special circumstance which exceptionally justified a claim by the son under the Act of 1975. ‘It is also clear from Birmingham v Renfrew . . that these cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust . . The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding.’ and ‘the agreement or understanding must be such as to impose on the donee a legally binding obligation to deal with the property in the particular way and that the other two certainties, namely, those as to the subject matter of the trust and the persons intended to benefit under it, are as essential to this species of trust as they are to any other.’

Judges:

Carnwath J

Citations:

Times 22-Dec-1995, Ind Summary 08-Jan-1996, [1996] 1 WLR 694

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Wills Act 1837 18

Jurisdiction:

England and Wales

Citing:

Appealed to – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .

Cited by:

Appeal from – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 06 July 2022; Ref: scu.80910

Williams v Hensman: 10 Jun 1861

A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy may be severed. Where joint tenants indicated by their conduct that they treated their interests separately, the fact that they did not understand that their interests had been joint did not prevent such behaviour acting to sever the tenancy.

Judges:

Sir William Page Wood VC

Citations:

[1861] 1 John and Hem 546, [1861] 30 LJ CH 878, [1861] 5 LT 203, [1861] 7 Jur NS 771, [1861] 70 ER 862, [1861] EWHC Ch J51

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Followed – Burgess v Rawnsley CA 15-Apr-1975
. .
Cited – Barton v Morris 1985
A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 05 July 2022; Ref: scu.238854

Ilott v The Blue Cross and Others: SC 15 Mar 2017

What is reasonable provision for daughter?

The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had rejected her claim.
Held: The appeal by the charities succeeded. The District Judge had not made the two errors suggested by the Court of Appeal: ‘The Act requires a single assessment by the judge of what reasonable financial provision should be made in all the circumstances of the case. It does not require the judge to fix some hypothetical standard of reasonable provision and then either add to it, or discount from it, by percentage points or otherwise, for variable factors. To the contrary, the section 3 factors, which are themselves all variables and which are likely often to be in tension one with another, are all to be considered so far as they are relevant, and in the light of them a single assessment of reasonable financial provision is to be made. There is no warrant in the Act for requiring a process of the kind suggested by the Court of Appeal. If the judge were to arrive at a figure for reasonable financial provision without one or more of the relevant facts in the case, he would not be undertaking the assessment required by the Act.’
The second alleged error was a suggested failure by the DJ to allow for the effect of the order on the state benefits received by the claimant. In fact the judge, though he may have: ‘interpreted the statutory requirement for the award to be for maintenance as pointing to such an approach, these items which Mrs Ilott needed to make the household function properly can perfectly sensibly fit within the concept of maintenance. The Court of Appeal rightly said that the 1975 Act is not designed to provide for a claimant to be gifted a ‘spending spree’. But this kind of necessary replacement of essential household items is not such an indulgence; rather it is the maintenance of daily living. Moreover, how the claimant might use the award of pounds 50,000 was of course up to her, but if a substantial part of it were spent in this way, the impact on the family’s benefits would be minimised, because she could put the household onto a much sounder footing without for long retaining capital beyond the 16,000 pounds ceiling at which entitlement to Housing and Council Tax Benefits is lost.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes

Citations:

[2017] UKSC 17, [2017] WLR(D) 185, UKSC 2015/0203

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Inheritance (Family Provision) Act 1938

Jurisdiction:

England and Wales

Citing:

Appeal from – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
At First Instance – Ilott v Mitson and Others FD 3-Mar-2014
The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her pounds 50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Cited – In re Dennis (Deceased) 1981
The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
First Appeal – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of pounds 50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and . .
Cited – Hyman v Hyman HL 1929
The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant . .
Cited – In re E, deceased 1966
Possible receipt by a family member in receipt of state support greater than the testator could sensibly provide may be an understandable reason why it was reasonable for the deceased not to make financial provision for that family member. The . .
Cited – Gurasz v Gurasz CA 1970
Lord Denning MR described ‘the husband’s duty to provide his wife with a roof over her head’ as ‘elemental in our society’ . .
Cited – Lord Lilford v Glyn CA 1979
The judge had ordered the father to make money settlements on his daughters which had no relation to accommodation or their need during minority.
Held: The judge had gone quite ouside the jurisdiction of the Act, and the appeal succeeded. . .
Cited – Cameron v Treasury Solicitor 1996
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 . .
Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA 1-May-1998
The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Myers v Myers and Orhers FD 3-Aug-2004
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 . .
Cited – Hope and Another v Knight ChD 15-Dec-2010
The separated widow and the deceased’s daughter sought reasonable provision from the estate. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Benefits

Leading Case

Updated: 30 June 2022; Ref: scu.580731

Daliah Dorit Sherrington and others v Sherrington: CA 22 Mar 2005

Citations:

[2005] EWCA Civ 410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .

Cited by:

See Also – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
See Also – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Costs

Updated: 29 June 2022; Ref: scu.224512

Green and others v Gaul and Another; In re Loftus deceased: ChD 18 Mar 2005

The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal representative began to run only after one year, the executor’s year, after the grant. No right of action arose until the executor became under a duty to distribute.
‘As regards the application for removal under Administration of Justice Act 1985, section 50, it is a matter for the discretion of the court, and that it is reasonable for the court to take a pragmatic approach, to consider the views of the beneficiaries and the interests of the estate as a whole.’
The family members disputed whether there had been a compromise of a dispute over the assets in their father’s estate.

Judges:

Lawrence Collins J

Citations:

[2005] 2 All ER 700, Times 28-Mar-2005, [2005] EWHC 406 (Ch), [2005] 1 WLR 1890

Links:

Bailii

Statutes:

Real Property Limitation Act 1860 13, Limitation Act 1980 21(3), Administration of Justice Act 1985 50

Jurisdiction:

England and Wales

Citing:

Cited – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
Distingusihed – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Applied – In Re Johnson, Sly v Blake 1855
The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: . .
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Cited – Ministry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
Cited – Re Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .
Cited – Nelson v Rye and Another ChD 5-Dec-1995
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . .
Cited – Evans v Westcombe; re Evans ChD 10-Mar-1999
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 . .
Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
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 . .
Cited – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD 8-Feb-2000
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .

Cited by:

Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Limitation

Updated: 29 June 2022; Ref: scu.223691

Couwenbergh v Valkova: CA 28 Jan 2005

The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met the third criteria in Ladd v Marshall, and should be admitted for testing. Rather than requiring the claimant to begin a new action, the court would remit the matter for a rehearing which would allow justice also to be done as to the costs of the first hearing.

Judges:

Ward, Dyson, Jacob LJJ

Citations:

[2005] EWCA 145 Civ

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – Sohal v Sohal CA 30-Jul-2002
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 . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
See Also – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .

Cited by:

Cited – Ahluwalia v Singh and Others ChD 6-Sep-2011
The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. . .
See Also – Couwenbergh v Valkova ChD 16-Oct-2008
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 29 June 2022; Ref: scu.222935

Scott and others v Honeyman-Scott: CA 17 Dec 2001

Renewed application for permission to appeal against an order in so far as that order provided that the administrator of the estate of the late James Honeyman-Scott should make no further payments to the defendant, Peggy Sue Honeyman-Scott, in respect of her half share of the residuary estate until the sum of andpound;372,184 and the order for costs made against her were paid in full.

Citations:

[2001] EWCA Civ 2087

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 27 June 2022; Ref: scu.218662

Gray v Perpetual Trustee Co Ltd: PC 12 Jun 1928

The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the conclusion that an agreement to constitute equitable interest has been shown to have been made. As they have already said, the mere fact of making wills mutually is not, at least by the law of England, evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law.’

Judges:

Viscount Haldane

Citations:

[1928] AC 391, [1928] UKPC 56

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Healey v Brown ChD 25-Apr-2002
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: . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 21 June 2022; Ref: scu.214597

In Re Yorke Deceased: ChD 3 Sep 1997

The plaintiffs were executors of the deceased, a ‘name’ at Lloyd’s from 1983 until his death in 1991. The estate was reinsured with Equitas for every possible Lloyd’s risk to which it would or might otherwise be liable. Having settled the debts and liabilities of the deceased, other than unascertained potential future liabilities arising from his position as a Lloyd’s name, the plaintiffs wished to complete their administration by distributing the residue. The plaintiffs wished to be sure, however, that distribution would not involve them in personal liability should creditors in respect of the deceased’s position as a Lloyd’s name emerge.
Held: Personal representatives of Lloyd’s names protected by Equitas were not under a general duty to distribute to beneficiaries without retention or further security and without first obtaining the sanction of the court. Nevertheless, balancing the injustice of beneficiaries being kept out of benefit on account of unascertained liabilities which might never come to anything against the risk of unknown contingent creditors who had paid for cover finding their matured debts unmet, the plaintiffs would be permitted to distribute to the beneficiaries without retention or further security beyond that provided by Equitas. On the evidence there was no reason to think that Equitas was likely to fail, in whole or in part. The Court gave complete protection to an executor distributing the estate despite a potential claim; no further retention for et hclaim was to be allowed.
Lindsay J said: ‘Although in considering the making of an order giving protection to executors the court would not look to create for a creditor some security which he had not stipulated for by his contract and would not act upon an attempt by a creditor in such a behalf (King v Malcott (1852) 9 Hare 692, 68 ER 691), the court would none the less, in making such orders, consider whether any and if so what indirect protection should be extended to creditors and including contingent creditors: Fletcher v Stevenson and Dean v Allen; see Re Nixon, Gray v Bell [1904] l Ch 638 at 694.
As for the forms of protection to be given to executors, they seem principally or exclusively to have consisted on the one hand of a retention by the executors out of the estate or, alternatively, the provision of an indemnity from the beneficiaries by whom (usually) a distribution without retention was sought.’ and
‘If security was to be provided by a beneficiary to an executor so as to indemnify the executors in a secured way and, alternatively, where there was a retention by the executor in lieu of sufficient security from the beneficiary, then the question of the amount of the security or of the retention would be adjourned to be fixed by the master: Simmons v Bollard, Dobson v Carpenter, Re Bennett and Re Owers. That reference to the master was not, it seems, by reason of any rule or principle requiring it but simply because the material for an assessment had not been put before the judge: see e. g. Re Owers.
The principle on which the master would act in fixing the amount or nature of the security or retention is not disclosed in the cases but it is nowhere suggested that the calculation had to be such that the security would necessarily and in all possible events suffice to meet in full whatever the executor might have to pay the creditors.’ and
‘Even though a contingent creditor had no strict right at law or in equity to insist upon a retention or upon security, the better view, in my judgment, is that the court would have in mind, in fixing a retention or security, that it was proper, as noted above, that creditors should to some extent be protected.’ and
‘The courts looked in general at the ‘reasonable probability’ of there being future demands against the estate: Dean v Allen. A practical view would be taken.’
Lindsay J continued: ‘the court could take a practical view, even against executors who asked for better protection, that no retention or security beyond the personal liability of the beneficiaries was needed and could decree accordingly, thus conferring the immunity which the executors had sought: see Waller v Barrett and March v Russell.’ and he concluded ‘First, a distribution made pursuant to a decree of the court affords a complete protection for the executor and the executor need not and indeed should not look, for example to a retention, for any protection beyond that. Secondly, it has long been the practice of the court to enable personal representatives to set apart ‘a reasonable sum to cover any liability which might in any reasonable probability arise by reason of a future breach’ of covenants in a lease held by the deceased: Kindersley V-C in Dodson v Carpenter. These observations can comfortably coexist if the case was that where an executor during his administration knew of no likelihood of any contingent debt maturing he could, by having an account taken in court of all known liabilities, obtain a decree which permitted him to distribute to legatees without making any retention but which none the less gave him complete freedom from a devastavit (save in exceptional circumstances such, for example, as fraud, misrepresentation or concealment). Where that was done a creditor with a late maturing contingent debt would be able to recover, if at all, only against the legatees.
Conversely, if, during an administration some real possibility of some contingent debt maturing came to the executor’s notice, the executor could, either of his own volition or under the guidance of the court, retain a sum out of the estate against that risk or seek security direct from the prospective recipient beneficiary. If there was a retention and if his retention was pursuant to a direction of the court, or if the security from the beneficiary was given under the direction of the court, then, again, he would be protected against devastavit once the fund retained or the security so given was exhausted in application towards a risk against which it had been reserved. But if the executor failed to obtain the directions of the court in that he distributed with neither a retention, nor a security from a beneficiary, sanctioned by the court nor had obtained the sanction of the court upon the taking of an account and a decree then, in any such case, he remained at risk of personal liability.’

Judges:

Lindsay J

Citations:

Gazette 03-Sep-1997, [1997] 4 All ER 907

Jurisdiction:

England and Wales

Cited by:

Cited – Re K (Deceased) ChD 28-Mar-2007
The administrators of the deceased’s estate sought permission of the court to pay certain creditors and then to distribute the balance to the beneficiaries without reference to claims against the estate which they disputed.
Held: Whilst a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 June 2022; Ref: scu.82307

In Re Ratcliffe, Deceased: ChD 19 Mar 1999

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.

Citations:

Times 19-Mar-1999, Gazette 17-Mar-1999, Gazette 31-Mar-1999

Jurisdiction:

England and Wales

Citing:

Not followed – In re Bentham’s Will Trusts 1995
. .
Lists of cited by and citing cases may be incomplete.

Inheritance Tax, Wills and Probate

Updated: 17 June 2022; Ref: scu.82145

In Re the Estate of Phyllis Mary Bliss (Deceased): ChD 13 Apr 2001

The will provided that the executors should specify the price at which a beneficiary could exercise an option to purchase property in the estate. The will provided that the market value at the date of death should be used. The probate valuation was not appropriate, and it was wrong for the valuer to seek to amend his valuation to take account of an increase in property prices after the date of death. The valuation could only be governed by matters known to the valuer at the time of the valuation. Since the option was intended to be exercised immediately, the trustees did not have to allow for the costs of ongoing repairs, nor for money expended by the beneficiaries on the property.

Citations:

Times 13-Apr-2001, Gazette 07-Jun-2001

Jurisdiction:

England and Wales

Wills and Probate

Updated: 17 June 2022; Ref: scu.82242

Melhuish v Waters: CA 5 Jul 2001

A settlement had been reached on the morning of the trial, embodied in a consent order. The applicant sought leave to appeal, denying that he had consented. He now applied for an adjournment of his application.
Held: The application for the adjournment was unsupported by justification and was too late. The applications for adjournment and for leave were refused.

Citations:

[2001] EWCA Civ 1174

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Litigation Practice

Updated: 13 June 2022; Ref: scu.201265

Moorhead v Moorhead: ChNI 11 Jan 2002

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.’

Citations:

[2002] NICh 1

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependents) (Northern Ireland) Order 1979

Jurisdiction:

Northern Ireland

Citing:

Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .
Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
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 . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Wills and Probate

Updated: 08 June 2022; Ref: scu.189690

Angelo Perotti v Iliffes Booth Bennett (A Firm), Bird and Bird (A Firm), Richard Francis Dudley Barlow (Sued As Francis Barlow): ChD 28 Oct 2003

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 2497 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
See also – Perotti v Watson and others CA 26-Feb-2004
The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 June 2022; Ref: scu.187284

King v Dubrey and Others: ChD 1 Jul 2014

The claimant said that before her death, the now deceased testator had handed the deeds of the house to him saying that she was giving the house to him. He said it was a donatio mortis causa gift.

Judges:

Charles Hollander QC

Citations:

[2014] EWHC 2083 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Cosnahan v Grice PC 12-Jul-1862
Isle of Man – The Board emphasised the burden of proof in claims to have received a donatio mortis causa: ‘Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous . .
Cited – In Re Craven’s Estate ChD 1937
D was about to undergo an operation which might prove fatal. D gave a power of attorney to R (her son). She told R that she wanted him to have certain shares and monies in her bank account if she died. R notified the bank, which responded that it . .
Cited – Sen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Cited by:

Appeal from – King v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 05 June 2022; Ref: scu.537773

Mazurek v France: ECHR 1 Feb 2000

ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

34406/97, [2000] ECHR 48, (2006) 42 EHRR 9

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Wills and Probate

Updated: 04 June 2022; Ref: scu.165807