Hope v Hope: 12 Mar 1847

Distinction between directing an issue and giving liberty to bring an action at law to try a legal right. In the former case, application for a new trial must be made in this Court, when all the proceedings at law will be examined; but in the latter, application for a new trial must be made to the Court of law, and this Court will look merely to the result of the action. In the latter case also, if there has been a marriage at law, relief, if any, cannot be obtained, upon the case coming on upon the equity reserved, without a petition.

Citations:

[1847] EngR 326, (1847) 10 Beav 581, (1847) 50 ER 706

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 22 May 2022; Ref: scu.300942

Grant v Grant: 1870

Blackburn J said: ‘The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were used.’

Judges:

Blackburn J

Citations:

(1870) LR 5 CP 727

Jurisdiction:

England and Wales

Cited by:

CitedHoward v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 20 May 2022; Ref: scu.450443

Atkinson v Morris: CA 1897

The plaintiff was able to prove that the testator had said she had destroyed one copy of a will she had made in duplicate.
Held: Though that evidence would have had the effect of revocation, it was hearsay and inadmissible and her intentions were, to the annoyance of the court, frustrated. Hearsay evidence is inadmissible on the issue of due execution.

Citations:

[1897] PD 40

Jurisdiction:

England and Wales

Cited by:

CitedParks v Clout CA 10-Jun-2003
The claimant said that the respondent had obtained a grant of letters of administration, and taken a share in the estate, by fraudulently destroying the deceased’s last will. He appealed against his claim being struck out as having no realistic . .
CitedParks v Clout CA 22-Oct-2002
Application for leave to make second appeal. Brother of deceased alleging that the widower had obtained probate by falsely representing that no will had been made by the deceased.
Held: Insofar as the judge had based his conclusion on an . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 19 May 2022; Ref: scu.213650

Hamlin v Hamlin: CA 1986

A plaintiff under the 1975 Act must show as against each defendant that where that defendant is out of the jurisdiction that the order for payment would be enforceable in the foreign land.

Judges:

Kerr LJ

Citations:

[1986] Fam 11

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 10

Cited by:

CitedDellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.545896

Re J(C): CoP 2012

Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will.

Judges:

Lush J

Citations:

[2012] WTLR 121

Statutes:

Mental Capacity Act 2005

Cited by:

CitedNT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 May 2022; Ref: scu.510003

14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3: 1220

An assumpsit lies against an executor upon a collateral promise of the testator ; as upon the testator’s promise to the plaintiff, if he will marry his daughter, that he shall have as much for her portion as any other of his daughters had. Judged and affirmed in error. This judgment is against former opinions for a collateral promise not broken in the life of the testator.

Citations:

[1220] EngR 167, (1220-1623) Jenk 336, (1220) 145 ER 244 (D)

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

Harter v Harter: 1873

Judges:

Hannen P

Citations:

[1873] LR 3 P and D 11

Cited by:

CitedIn 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 . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450180

Parfitt v Lawless: 1872

When a court considers the preparation and execution of a will, there can be no presumption of undue influence.

Citations:

[1872] LR 2 P and D 462

Cited by:

CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450182

Re Hughes: 1943

Citations:

[1943] Ch 296

Cited by:

CitedHoward v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450448

Guardhouse v Blackburn: 1866

Judges:

Lord Penzance

Citations:

[1866] LR 1 P and D 109

Cited by:

CitedIn 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 . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.450178

Re Vautier: 2000

(Royal Court of Jersey) The court considered a request for the rectification of a will: ‘To summarize, the common law of England recognized a power in the court to delete words from a will which were included by mistake but did not allow for power in the court to rectify by altering or adding to the wording of the will. The law of New Zealand has recognised a similar power to delete. It has not yet recognised a power to rectify by other alterations although in the case of McConagle [McConagle v. Starkey [1997] 3 NZLR 635], the court indicated that it was supportive of such an approach. In Canada, the courts have exercised a power to rectify a will by altering the wording but the initial decision could be said to be based on a misunderstanding of Guardian Trust.’

Citations:

2000 JLR 351

Cited by:

per incuriamMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.428468

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Lloyd v Harvey: 23 Jun 1832

The testator, upon the marriage of a daughter, entered into a bond for the payment of pounds 5000 within six months after his decease to the trustees of his daughter’s settlement, the interest to be paid to the husband for life ; and, after his decease, if the wife survived him and there were children of the marriage, and pounds 1000, part of the pounds 5000, to be paid to the wife, and the remainder to be applied for the use of the children of the marriage ; but if there were no children, pounds 2000 to be paid to the wife, and the remainder of the pounds 5000 to be paid to the executors and administrators of the husband; and in case the husband survived the wife, and there were no children, then the whole of the pounds 5000 to the husband. The testator afterwards made his will, and gave his daughter pounds 5000, stating it to be in addition to what he had secured upon her marriage. About five years afterwards the testator executed a deed whereby he covenanted that his executors should pay to the trustees, within six months after his death, the sum of pounds 5000 upon the trusts of the settlement. Parol evidence of the declarations of the testator was admitted to prove that he did not intend a double portion. Quaere whether the different interests of the husband, wife, and children in the legacy of pounds 5000, and in the sum of pounds 5000 given by the deed, would repel the common presumption against double portions?

Citations:

[1832] EngR 710, (1832) 2 Russ and My 310, (1832) 39 ER 412

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 18 May 2022; Ref: scu.319657

Cattermole v Prisk: 2006

Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will.

Judges:

Norris J

Citations:

[2006] 1 FLR

Jurisdiction:

England and Wales

Cited by:

CitedCarr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
CitedScammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
CitedKey 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 May 2022; Ref: scu.277385

Re Smith: 1880

Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal.

Citations:

(1880) 42 Ch D 302

Cited by:

CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.267735

Holtham v Arnold: 1986

The court considered how it might decide between the competing claims of different family members to have control over the burial of the deceased. Hoffmann J said: ‘there seems to be no doubt that Mrs Holtham on the one side and the family on the other both feel very strongly that it is their right and duty to conduct the funeral. I think it is virtually impossible for a court to express any moral judgment as between them. The relationship between a man in the position of Mr Arnold and Mrs Holtham on the one hand and his family on the other are in the nature of things extremely difficult for an outsider to penetrate . . Indeed, I think it is a matter on which it would almost be presumptuous to try to explore. In those circumstances the only course really open to the court is to decide the matter according to law.’

Judges:

Hoffmann J

Citations:

[1986] 2 BMLR 123

Cited by:

CitedHartshorne 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: 18 May 2022; Ref: scu.267632

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

Cited by:

CitedRe 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: 18 May 2022; Ref: scu.267521

Anthony and Another v Donges and Others: ChD 22 Jul 1998

A clause in a testator’s will leaving to his widow ‘such minimal sum as she might be entitled to by way of maintenance under English Law’ was void for uncertainty. It tried to place the judge in the position of an arbitrator, and did so without his consent, and would not be allowed.

Citations:

Times 22-Jul-1998, [1998] 2 FLR 775

Wills and Probate

Updated: 17 May 2022; Ref: scu.77810

In re Groos Estate: 1904

Citations:

[1904] P 269

Statutes:

Wills Act 1861 3

Cited by:

CitedL, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 May 2022; Ref: scu.249364

Hudson v Parker: 1844

The court made observations on the meaning of the requirement in the Wills Act 1837 that the witness ‘shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary’. He pointed to the statutory requirement of attestation in addition to subscription and gave as the meaning of ‘attest’ to bear witness to a fact: ‘I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence. The statute does say ‘that no form of attestation shall be necessary’, still the witnesses must attest, although the outward work of attestation may be subscription only’.

Judges:

Dr. Lushington

Citations:

(1844) 1 Rob Ecc 14

Statutes:

Wills Act 1837

Cited by:

CitedSherrington 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.223790

Bryan v White: 1850

The court considered the proper execution of a will: ”Attest’ means the persons shall be present and see what passes, and shall, when required, bear witness to the facts’.

Judges:

Dr. Lushington

Citations:

(1850) 2 Rob Ecc 315

Cited by:

CitedSherrington 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.223791

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 residence. The court reduced the specific legacy and made an order transferring the matrimonial home to the widow absolutely, thereby awarding her approximately one half of the value of the estate. The marriage had been very long, and the assets held in the husband’s name.
Held: Whilst the amount the claimant would have received on a divorce was only one factor, it can be a most important one. Too great a concentration on deeds and resources blurs the distinction between sections 1(2)(a) and (b). Having noted that there were sufficient assets in the estate to have provided for both parties on a divorce and that on divorce the court would have been looking for a clean break and that the case did not involve inherited assets there was stated to be no apparent reason why the court should depart from an equal division of the assets. It was stated that whether the divorce court would have awarded the applicant the matrimonial home or whether it would have sought to achieve equal division by some different route would have depended upon the needs and wishes of the parties.

Judges:

John Behrens

Citations:

Unreported, 26 January 2001, (2001) WTLR 493

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(2)(a) 1(2)(b)

Jurisdiction:

England and Wales

Citing:

ApprovedRe 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 . .
CitedStead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
CitedWhite 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 by:

CitedMoorhead 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.213640

Vaughan v Mark of Headfort: 1840

Eccentricity or irrationality are not enough to deprive someone of the freedom ot capacity to make a valid will. ‘Every testator is free to adopt his own nonsense’

Judges:

Shadwell VC

Citations:

(1840) 10 SIM 639

Jurisdiction:

England and Wales

Cited by:

CitedThompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.214014

Re Hammersley: 1965

A court will not speculate as to a testator’s intentions if they cannot be ascertained.

Citations:

[1965] Ch 481

Jurisdiction:

England and Wales

Cited by:

CitedDutton and Dutton v Dutton and Brown ChD 3-Feb-2000
An option was granted by the will. Its validity was challenged because of difficulties in the method of reaching a valuation. It was occupied and it could not be agreed whether an assumption was to be made that the occupier would consent to the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 16 May 2022; Ref: scu.198159

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)

Citing:

CitedRe 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 . .
CitedIn re Styler 1942
. .

Cited by:

CitedJessop 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 . .
CitedMoorhead 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 preferredKrubert, 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 . .
CitedBarron 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: 16 May 2022; Ref: scu.196902

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

Cited by:

CitedMoody 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 . .
CitedJessop 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 . .
ApprovedElizabeth 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 . .
CitedMoorhead 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 . .
PreferredKrubert, 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 . .
CitedBarron 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: 16 May 2022; Ref: scu.196901

Aldrich v Attorney-General: ChD 1968

Judges:

Ormrod L

Citations:

[1968] P 281

Jurisdiction:

England and Wales

Citing:

CriticisedIn the Estate of Wayland 1951
Where a testator makes will in different jurisdictions, if each will deals only with property in a different country, the later will does not revoke the earlier one even if it does contain a revocatory clause. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 15 May 2022; Ref: scu.424269

St John v Bishop of Winton: 1774

One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: ‘All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;’ (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.

Citations:

[1774] EngR 31, (1774) 1 Cowp 94, (1774) 98 ER 985

Links:

Commonlii

Wills and Probate, Land

Updated: 15 May 2022; Ref: scu.373887

Beckford v Beckford: PC 28 Apr 1783

A. by will devises all his estates to his eldest son in tail male, with remainders over ; part of the property consisted of an estate in Jamaica, and therefore the testator added the following clause: ‘ And E recommend to my executors, that all sugars, rum, and other plantation produce that is sent to the port of London, be consigned to the house of Collet, Evans, and Co. until such time as any of my sons shall set up in the business of a sugar factor ; then my desire is, that the consignment may pass through his or their hands.’
C. a natural son of the testator’s, set up the business of a sugar factor, during the minority of the devisee, and accordingly got the consignments upon the devisee’s coming of age, C. accounted with him, but insisted on being entitled to his commission not only upon the produce which he had actually sold, but also upon the produce which had been consigned to him, but was not then arrived in the port of London. Held, that the words of the above clause were not imperative, or amounted to words of bequest in favour of C. but were recommendatory only. Held also, that C: was entitled to a commission only upon what he had actually sold, and not upon what was only consigned, but not delivered to him.
DECRETAL ORDPR of Chancery

Citations:

[1783] EngR 64, (1783) 4 Bro PC 38, (1783) 2 ER 26

Links:

Commonlii

Jurisdiction:

Commonwealth

Wills and Probate, Agency

Updated: 15 May 2022; Ref: scu.372193

Jones v Randall: 1 Dec 1819

Bequest of an annuity to the children of A. in equal shares and proportions, to continue during their lives and the life of the survivor of them. The children take as tenants in common, and there is no survivorship between them by implication ; therefore the share of one dying goes to its representative.

Citations:

[1819] EngR 741, (1819) 1 Jac and W 100, (1819) 37 ER 313

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.331944

Smith v Smith and Others: ChD 12 Jul 2001

The claimant had executed a voluntary disclaimer, under which he renounced all his expectation under a will. The testator was still alive. After her death, the executors relied upon the disclaimer, and the applicant said it was ineffective. He was correct. A disclaimer operates as an avoidance, not as a disposition. In order to be effective there must be some real interest upon which it could bite. An expectancy under a will was not such an asset, and the disclaimer was ineffective. Also, no consideration had been given for the disclaimer, neither could it be treated and enforced as an agreement by the executors.

Citations:

Times 18-Jun-2001, Gazette 12-Jul-2001

Jurisdiction:

England and Wales

Wills and Probate

Updated: 15 May 2022; Ref: scu.89347

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

Citing:

CitedDufour 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 . .
CitedLord 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: 15 May 2022; Ref: scu.81867

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

Trusts, Wills and Probate, Costs

Updated: 15 May 2022; Ref: scu.79774

Re S deceased: 1996

The court considred the application of the Act: ‘ such was the deliberate nature of his violent attack on his wife that the forfeiture rule of public policy applies so as to disentitle the plaintiff from any benefit he would otherwise take as a result of his crime.’

Citations:

[1996] 1WLR 325

Statutes:

Forfeiture Act 1982

Jurisdiction:

England and Wales

Cited by:

CitedDunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.199531

Re Beadle: 1974

Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed or acknowledged his signature in their presence. The court rejected an argument that attestation was not a matter of intention.

Judges:

Goff J

Citations:

[1974] 1 WLR 417

Citing:

CitedIn the Estate of Bercovitz, deceased; Canning v Enever ChD 1961
The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J . .

Cited by:

CitedSherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
CitedSherrington 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 May 2022; Ref: scu.198739

Murray v Jones: 1813

A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child.

Citations:

(1813) 3 Ves and B 313

Jurisdiction:

England and Wales

Citing:

AppliedJones v Westcomb 1711
A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori. . .

Cited by:

CitedVenables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.189913

Powell v Rawle: 1874

A legacy was given to the testator’s daughter on the ‘express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the amount thereof shall fall into and be considered as part of my residuary personal estate and be applied accordingly.’ The daughter did not claim the legacy for some years. She claimed that she had not heard of it until nearly two years after her father’s death, and it was admitted by the executors that no notice was given.
Held: ‘the words are too strong’ and the fund must fall into the residue, on her failure to claim the legacy.

Citations:

(1874) 18 Eq 243

Jurisdiction:

England and Wales

Cited by:

CitedHayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 May 2022; Ref: scu.179726

Maxwell v Maxwell: 1852

The court rejected a request to apply the doctine of election despite evidence that the testator might have disapproved of the result.

Citations:

(1852) 2 De G M and G 705

Jurisdiction:

England and Wales

Cited by:

CitedFrear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 10 May 2022; Ref: scu.278401

Lewis v Cotton: 18 Dec 2000

(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked will.
Held: The imposition of a constructive trust based on mutual wills has two fundamental requirements:
(a) There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made).2 I will refer to this as the requirement for ‘corresponding wills’. Reference is sometimes made to ‘mirror wills’ and, more ambiguously and confusingly, to ‘mutual wills’.
(b) There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator

Judges:

Richardson P, Blanchard J,Tipping J

Citations:

[2000] NZCA 39, [2001] 2 NZLR 21, (2000) 20 FRNZ 86

Links:

NZLII

Jurisdiction:

England and Wales

Cited by:

CitedLegg 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, Equity

Updated: 09 May 2022; Ref: scu.593131

Fea v Roberts: 2006

Expenditure on matters such as home improvements ‘could not be regarded as a dissipation or true ‘change of position”.

Judges:

Hazel Williamson QC

Citations:

[2006] WTLR 255

Jurisdiction:

England and Wales

Cited by:

CitedLegg 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, Damages

Updated: 09 May 2022; Ref: scu.593142

Re Casmore: 1869

Citations:

(1869) LR 1 P and D 653

Jurisdiction:

England and Wales

Cited by:

CitedWeatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 May 2022; Ref: scu.183798

Re Gregory (Deceased), Gregory v Goodenough: CA 1970

Fenton Atkinson LJ sought to discourage appeals in cases involvimg small estates.

Judges:

Fenton Atkinson LJ

Citations:

[1970] 1 WLR 1455

Jurisdiction:

England and Wales

Cited by:

CitedIlott 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 andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 08 May 2022; Ref: scu.431725

Chetwynd v Fleetwood and Others: PC 17 May 1742

In what case an heir is bound toperform his father’s covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.

Citations:

[1742] EngR 59, (1742) 1 Bro PC 300, (1742) 1 ER 580

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 07 May 2022; Ref: scu.384232

Milne v Milne; Travis v Milne: 29 May 1851

A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; and the suit might be maintained where the relation between the executors and surviving partners was such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
A gift and devise by one of the partners in a cotton-mill of all his property, estate and effects to trustees, upon trust, to lay out and invest two-third parts thereof upon real or good personal security, or to transfer the same, and allow it to remain in the concern, of which he was one of the co-partners, in the names of his trustees, and alter, vary, change and transpose the same as they should think fit, and stand possessed of the same, upon trust, for the two sons of the testator, with certain powers of advancement out of their respectives shares: Held, to authorise the executors to continue the monies of the testator in the trade, but not to trade with the monies by becoming partners in the firm.
The surviving partners of a testator dealing with the property of the testator, with the knowledge that it belongs to his estate, are bound to inquire into the trusts on which it is held, and are liable as if they had actual notice of those trusts.
A suit by parties beneficially interested in the estate of a deceased partner cannot be maintained against, both his executors and surviving partners, in the absence of special circumstanees ; but collusion is not the only ground for such a suit ; and it may be maintained where the relation between the executors and surviving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
It is not to be presumed that the annual stock-taking by a partnership truly represents the interests of the several partners in the firm; but it may or may not do so, according to the purposes for which and the mode in which it is made up.

Judges:

Turner V-C

Citations:

[1851] EngR 524, (1851) 9 Hare 141, [1851] 68 ER 449

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 07 May 2022; Ref: scu.296840

Roberts v Gill and Co and Another: ChD 2007

Judges:

Morgan QC

Citations:

[2007] EWHC 3461 (Ch), [2007] All ER (D) 89

Jurisdiction:

England and Wales

Cited by:

Appeal fromRoberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Wills and probate

Updated: 07 May 2022; Ref: scu.279798

Re Grandison; Grandison v Nembhard: ChD 10 Jul 1989

In a case where there is no dispute as to the executor’s entitlement to act in the estate, the right of the executor to decide on the mode of burial is likely to be accorded a high priority. The deceased’s wishes are one of the relevant factors to be taken into consideration.

Judges:

Vinelott J

Citations:

Times 10-Jul-1989, (1989) 4 BMLR 140

Jurisdiction:

England and Wales

Cited by:

CitedHartshorne 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: 07 May 2022; Ref: scu.267634

Re Sinclair: 1938

Judges:

Sir Christopher Farwell

Citations:

[1938] Ch 199

Jurisdiction:

England and Wales

Cited by:

CitedBeswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Insurance, Wills and Probate

Updated: 07 May 2022; Ref: scu.251059

Re Recher’s Will Trusts: ChD 1972

The deceased gave a share of the residue, to ‘The Anti-Vivisection Society, 76 Victoria Street, London S.W.1.’ She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the ‘London and Provincial Anti-Vivisection Society’ had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as ‘The National Anti-Vivisection Society’ of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to ‘The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society).’ In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: ‘It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members’ social club. . . Such an association is bound . . to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules . . The resultant situation, on analysis, is that the . . society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure … Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the . . society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process.’

Judges:

Brightman J

Citations:

[1972] Ch 529

Jurisdiction:

England and Wales

Citing:

ApprovedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Cited by:

CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.245266

Ravenscroft v Jones: 1863

A father by his will bequeathed andpound;700 to his then unmarried daughter. Later two inter vivos gifts were made; one, of andpound; 100, was plainly not a portion. The other, of andpound;400, was not given to the daughter but to her husband. The testator said to the husband that he hoped the gift would do him good.
Held: A small gift is not to be taken as a ‘portion’ of the gift intended to be made under a will. ‘With respect to the . . . andpound;400, I prefer to express no opinion as to the ground upon which, to a great extent at least, the Master of the Rolls appears to have proceeded; namely that the daughter herself was the legatee, while the payment was made to the husband of the daughter. I do not rely upon that ground nor on the other hand do I express any dissent from It.’ On the evidence the andpound;400 was intended as ‘a simple gift’ meaning, I apprehend, that it was not a portion at all but pure bounty.

Judges:

Knight Bruce LJ, Turner LJ

Citations:

(1863) 32 Beav 669

Jurisdiction:

England and Wales

Cited by:

CitedIn Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.194472

Montefiore v Guedalla: 1859

Referring to the doctrine of ademption: (Turner LJ) ‘… the court will not impute to a parent the intention twice to discharge the same obligation of providing for his child – a rule founded, as it seems to me, on very sufficient reasons; for there can be no doubt that, in the absence of it, the affairs of families would in many cases be involved in the utmost confusion.’ and (Lord Campbell LC) ‘The doctrine of ademption has been established for the purpose of carrying in to effect the intention of fathers of families for providing for their children, and of preventing particular children from obtaining double portions, contrary to such intention.’

Judges:

Turner LJ, Lord Campbell LC

Citations:

(1859) 1 de GF and J 93

Jurisdiction:

England and Wales

Cited by:

CitedIn Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.194483

In re Duke, Hannah v Duke: 1880

Citations:

[1880] 16 ChD 112

Jurisdiction:

England and Wales

Cited by:

CitedBarclays Bank Trust Co Ltd v McDougall and Others ChD 27-Jun-2000
The deceased had created a trust with constructive trusts for his four children for life, and protective trusts for remoter issue. The last child had now died, and the initial trust period had expired. The trust provided that at this point the fund . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 06 May 2022; Ref: scu.408590

Attorney-General v The Painter-Stainers Company: 31 Oct 1788

On further directions – Where an intention appears in a testator to give the whole of a fund to a charity, the objects whereof are not sufficient to exhaust the whole, the Court will apply the residue as nearly to the testator’s designation as it can. But such defects will not be supplied without some such intention appearing to guide the Court, which cannot go so far as to dispose of a fund merely on seeing a general intention in the testator to die testate as to the whole

Citations:

[1788] EngR 210, (1788) 2 Cox 51, (1788) 30 ER 24 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Charity

Updated: 02 May 2022; Ref: scu.368510

Methuen v Methuen: 23 Jun 1817

Sir John Nicholl said: ‘In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.’

Judges:

Sir John Nicholl

Citations:

[1817] EngR 585, (1817) 2 Phill 416, (1817) 161 ER 1186

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedRe Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
CitedLamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 May 2022; Ref: scu.333435

Campbell v Campbell: 15 Jul 1842

If an executor in India collects part of the assets there and then comes to England and has the remainder remitted to him by his agent, he is entitled to commission on that part only which he collected in India

Citations:

[1842] EngR 893, (1842) 13 Sim 168, (1842) 60 ER 65

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 02 May 2022; Ref: scu.307848

Regina v Gwynedd County Council ex parte B and Another: 1992

The ambit of the 1980 act does not extend to regulating events arising after a child’s death.

Citations:

[1992] 3 All ER 317

Statutes:

Child Care Act 1980

Jurisdiction:

England and Wales

Citing:

ApprovedRegina v Vann 1851
A parent of a child who had not the means of providing for the burial of the body of his deceased child was not liable to be indicted for the misdemeanour of not providing for its burial, even though a nuisance was occasioned by the body remaining . .

Cited by:

CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedRe 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, Children

Updated: 29 April 2022; Ref: scu.195009

Barrett v Barrett: 1629

To constitute waste the damage must be prejudicial to the inheritance. The law will not allow that to be waste which is not in any way prejudicial to the inheritance. When a husband said she shall not commit waste, it was not his intention to restrain her from that which the law allows.

Judges:

Richardson CJ

Citations:

Het 34, 124 ER 321

Jurisdiction:

England and Wales

Wills and Probate

Updated: 29 April 2022; Ref: scu.183001

Ex parte Wilson: 1871

Hotchpot principles

Citations:

(1871-1872) L R 7 Ch App 490

Jurisdiction:

England and Wales

Cited by:

CitedCleaver, Bodden v Delta American Reinsurance Company PC 1-Feb-2001
(Cayman Islands) In the course of trading the company had given security to carry on its insurance business. On its insolvency, the administrators required the creditor to bring into hotchpot credit received in a foreign jurisdiction. It was said . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 April 2022; Ref: scu.181831

Lord Lilford v Powys Keck (No 1): 1862

Citations:

(1862) 30 Beav 295, [1862] EngR 347, (1862) 54 ER 902

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedHayward v Jackson ChD 18-Feb-2003
The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 April 2022; Ref: scu.179720

Best v Stonehewer: 1864

Citations:

(1865) 2 De G J and Sm 537 CA, (1864) 34 Beav 66

Jurisdiction:

England and Wales

Cited by:

CitedIn Re Thurlow, Decd Riddick and Another v Kennard and Others ChD 7-Jul-1971
cw Will – Construction – ‘Descendants’ – Residuary estate to be divided between descendants of late mother and of late father – Modern legal and ordinary meaning of ‘descendants’ – Whether ‘descendants’ include . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 April 2022; Ref: scu.180972

In re Bentham’s Will Trusts: 1995

Citations:

[1995] STC 210

Jurisdiction:

England and Wales

Cited by:

Not followedIn 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 28 April 2022; Ref: scu.180967

Felton v Mulligan: 2 Sep 1971

(Australia) The court was concerned to interpret the phrase ‘arising under any laws made by the Parliament’
Austlii Constitutional Law (Cth) – Privy Council – Appeal from State Supreme Court invested with federal jurisdiction – Matter arising under law made by Common- Commonwealth Parliament – Raised by defence – Whether court exercising concurrent State and federal jurisdiction – The Constitution (63 and 64 Vict. c. 12), s. 76 (ii.) – Judiciary Act 1901-1968 (Cth), ss. 39, 40.
Courts – Ouster of jurisdiction – Public policy – Proceedings for divorce – Agreement between husband and wife concerning maintenance – Whether invalid – Whether invalidity derived from common law or statute – Matrimonial Causes Act 1959-1966 (Cth).
Matrimonial Causes – Agreement between husband and wife concerning maintenance – Whether enforceable – Whether attempt to oust jurisdiction of court – Matrimonial Causes Act 1959-1966 (Cth), ss. 5, 8, 23 (2) (3), 87 (1) (k).

Judges:

Justice Windeyer

Citations:

(1971) 124 CLR 367, [1971] HCA 39

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedCadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Constitutional

Updated: 27 April 2022; Ref: scu.180901

Mackenzie’s Trustees v Mackenzie and Others: HL 25 Jul 1907

A testator bequeathed interests in the residue of his estate ‘to the heir for the time being entitled to succeed under the said deed of entail’ on his attaining the age of twenty-four. He had in a preceding portion of his testament directed an entail of a certain estate upon a series of heirs, and it appeared from the whole provisions of the deed that he contemplated the founding of a family of that estate. The institute in the proposed entail obtained a conveyance in fee simple of the estate, under section 27 of the Entail Act 1848, and died before attaining twenty-four years of age.
Held that the words ‘the heir for the time being entitled to succeed under the said deed of entail’ were merely a description of the person favoured and did not import a condition that he should in fact be heir under an executed deed of entail. Per Lord Robertson-‘The substance of a bequest of residue is the choice of persons.’

Judges:

Lord Chancellor (Loreburn), Lord Macnaghten, Lord Robertson, and Lord Atkinson

Citations:

[1907] UKHL 985, 44 SLR 985

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 27 April 2022; Ref: scu.622309

Train v Buchanan’s Trustee (Clapperton): HL 25 May 1908

A testator directed his trustees to hold a certain sum and to pay to a beneficiary during his lifetime ‘either the whole or only a portion of the annual revenue thereof, and that subject to such conditions and restrictions, all as my trustees in their sole and absolute discretion think fit’; and on the beneficiary’s death to pay to his children the sum ‘with any revenue accrued thereon that has not been paid’ to the beneficiary; failing such children the sum ‘and accumulations of revenue, if any,’ fell into residue. The trustees from time to time paid the beneficiary some very small sums. The beneficiary having assigned his interest in the trust, the assignee brought an action to obtain the unpaid balance of revenue on the ground that the trustees had never exercised the discretion given them to restrict the amount to be paid, and consequently that the whole annual revenue had become the property of the beneficiary.
Held, in the circumstances of the case, that the trustees had exercised the discretion conferred upon them.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Ashbourne, Lord Robertson, and Lord Collins

Citations:

[1908] UKHL 682, 45 SLR 682, 46 SLR 682

Links:

Bailii

Jurisdiction:

Scotland

Trusts, Wills and Probate

Updated: 26 April 2022; Ref: scu.621512

Murdoch’s Trustees v Weir and Others: HL 6 Feb 1908

A testator directed that the residue of his estate should be employed in the relief of persons who, with other qualifications, had ‘shown practical sympathy in the pursuits of science.’
Per Lord Chancellor-‘All that can be required is that the description of the classes to be benefited shall be sufficiently certain to enable men of common sense to carry out the expressed wishes of the testator. . . Persons who have shown practical sympathy in an object obviously are persons who have given time or money, or made some sort of sacrifice to further it. I am satisfied the trustees, or failing them the Court, would find no difficulty in giving effect to the bequest.’

Judges:

Lord Chancellor (Loreburn), Lord Macnaghten, Lord Robertson, and Lord Atkinson

Citations:

[1908] UKHL 335, 45 SLR 335

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate, Charity

Updated: 26 April 2022; Ref: scu.621496

Chapman and Others v Perkins: HL 3 Mar 1905

A testator by his will conferred certain interests in his estate upon his children, providing however that on the occurrence of certain enumerated events, e.g., the bankruptcy of a child, or if a child contracted a marriage within a degree of kindred indicated in the will, he or she should forfeit his or her interest under the will.
During the lifetime of the testator a daughter contracted a marriage within the prohibited degree.
Held that, as regarded the forbidden marriages, the provision as to forfeiture was meant by the testator only to apply to a marriage entered into after his death, and that consequently the daughter had not forfeited her interest.

Judges:

Lord Chancellor (Halsbury), Lords Macnaghten, James of Hereford, and Lindley

Citations:

[1905] UKHL 856, 42 SLR 856

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 26 April 2022; Ref: scu.621171

Macintyre v Grimond: HL 6 Mar 1905

A testator by his trust-disposition and settlement directed his trustees to divide a portion of the residue of his estate ‘to and among such charitable or religious institutions and societies as my trustees or the survivor or survivors of them may select, and in such proportion to each or any as they may fix.’ Held (rev judgment of the Second Division) that the bequest was void from uncertainty.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord James of Hereford, and Lord Robertson

Citations:

[1905] UKHL 466, 42 SLR 466

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 26 April 2022; Ref: scu.621172