Tag: Wills and Probate

Anderson and Others (Binnie’s Trustees) v Prendergast and Others: HL 7 Dec 1910

Citations:

[1910] UKHL 251

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Appeal from – Anderson and Others (Binnie’s Trustees) v Prendergast and Others SCS 21-Jan-1910
Succession – Division per stirpes or per capita . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 April 2022; Ref: scu.619805

Walford and Another v Walford: HL 21 Jun 1912

Where a testator had directed payment of a legacy out of the reversion of a fund which did not become available for several years after the testator’s death, held that the legacy carried interest from the end of a year after the testator’s death in the absence of any clear direction in the will to postpone payment of the legacy.

Judges:

The Lord Chancellor (Viscount Haldane), the Earl of Halsbury, Lords Ashbourne, Macnaghten, and Atkinson

Citations:

[1912] UKHL 602, 50 SLR 602

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 April 2022; Ref: scu.619245

Crum Ewing’s Trustees v Bayly’s Trustees and Others: HL 20 Mar 1911

‘The doctrine of approbate and reprobate in Scotland and the doctrine of election in England are the very same thing under different names. They depend upon a principle which in its comprehensiveness and simplicity was put by Lord Eldon in the House of Lords in the Scotch case of Ker v. Wauchope thus-‘It is equally settled in the law of Scotland and of England that no person can accept and reject the same instrument.”
A testatrix conveyed to trustees ‘all and sundry the whole estate and effects . . which shall belong to me at the time of my decease or over which I may have power of disposal by will or otherwise,’ and declared that she was acting ‘in exercise of all powers of disposal, apportionment, or otherwise competent’ under the trust-disposition and settlement of her father. She destined the trust estate in certain shares to her children in liferent and their children in fee. The funds coming from her father’s estate belonged in fee under his settlement to her children, although subject to her liferent and her power of appointment, and her exercise of the power of appointment by giving the children merely a liferent and their children the fee was held to be a bad exercise.
Held (rev. judgment of the First Division) that although the funds coming from her father’s estate were separable from the testatrix’ own funds, yet her children could not claim the right conferred upon them in the former under his settlement and at the same time take a benefit in the latter under her settlement, but were put to their election; and this obligation to elect was not affected by the interest given in the testatrix’ estate being declared alimentary, Scots law differing herein from English law, nor by there being no declaration that such interest was in lieu of any claim on the fund coming from the father’s estate, while there was such a declaration as to legitim and the marriage-contract funds.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Macnaghten, Lord Atkinson, Lord Shaw, and Lord Robson

Citations:

[1911] UKHL 401, 48 SLR 401

Links:

Bailii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 25 April 2022; Ref: scu.619190

Cleaver v Mutual Reserve Fund Life Association: CA 1892

The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a criminal to claim any benefit by virtue of his crime.’
Held: The trust for the wife failed, because she had murdered her husband, but that the policy still was an asset of his estate, and the company had to pay the executors.
Fry LJ said: ‘The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud it seems impossible to suppose that it can arise from felony or misdemeanour . . This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.’ and ‘In the construction of Acts of Parliament . . general words which might include cases obnoxious to this principle (of public policy) must be read and construed subject to it.’

Judges:

Fry LJ

Citations:

[1892] 1 QB 147, 1891 4 All ER 335, 61 LJQB 128, 65 LT 220

Statutes:

Married Women’s Property Act 1882 11

Jurisdiction:

England and Wales

Cited by:

Applied – Davitt v Titcumb ChD 1989
The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used . .
Cited – Dunbar (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 . .
Cited – Troja v Troja 1994
(New South Wales) The court explained the application of the forfeiture rules in cases involving murder. Historically: ‘In a time of attainder, forfeiture, and common exaction of the death penalty following conviction for murder, the niceties of the . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Beresford v Royal Insurance Co Ltd HL 1938
The forfeiture rule was to be applied in a case involving suicide. An insured may not recover under a policy of insurance in respect of loss intentionally caused by his own criminal or tortious act, however clearly the wording of the policy may . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Cited – Challen v Challen and Another ChD 27-May-2020
Forfeiture rule disapplied after spousal abuse
The claimant sought the disapplication of the forfeiture rule. She had been convicted of the manslaughter of her seriously abusive husband. The court considered whether a conviction for murder set aside and replaced with one of manslaughter was a . .
Lists of cited by and citing cases may be incomplete.

Insurance, Wills and Probate

Leading Case

Updated: 24 April 2022; Ref: scu.185187

Proles v Kohli: ChD 17 Apr 2018

Trial of a preliminary issue in a claim under the 1975 Act, and in particular as to whether the deceased was domiciled in the UK and therefore subject to the jurisdiction of the Act.

Judges:

Clark M

Citations:

[2018] EWHC 767 (Ch)

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(1)

Jurisdiction:

England and Wales

Wills and Probate

Updated: 13 April 2022; Ref: scu.609085

Anstey v Mundle: ChD 2016

When faced with a dispute as to the disposal of a deceased’s body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements

Citations:

[2016] EWHC 1073 (Ch)

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

Updated: 13 April 2022; Ref: scu.571414

Reading v Reading: ChD 2015

The court was asked to construe a provision in the will.
Held: Ultimately a reference to ‘issue of mine’ was to be read to include the testator’s stepchildren despite initially observing that: ‘The ordinary and natural meaning of the word ‘issue’ does not in its ordinary and natural meaning include stepchildren;’

Judges:

Asplin J

Citations:

[2015] EWHC 946 (Ch), [2015] WTLR 1245

Jurisdiction:

England and Wales

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.

Wills and Probate

Updated: 12 April 2022; Ref: scu.570851

In the Estate of Borger Deceased: 1912

Supreme Court Victoria – Will – Construction – Legacy, lapse of – Death of beneficiary ‘before he shall have become entitled,’ meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving brother or sister should attain the age of twenty-one years, and thereafter for the use and benefit of J. absolutely, charged, however, with the payment of oertain legacies to oertain named brothers and sisters. The testator then directed that’ in the event of any of my said brothers or sisters dying before he she or they shall have become entitled under this my will the share or shares of such my said brothers and sisters so dying shall be divided equally amongst those of my brothers and sisters them surviving with the exception of his brother J.
Held: that the word’ entitled’ meant ‘entitled in possession,’ and that therefore a legacy to one of the sisters who had survived the testator, but had died before his youngest brother attained twenty-one, was not payable to that sister’s executor.

Judges:

Hodges J

Citations:

[1912] VLR 310

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 12 April 2022; Ref: scu.570711

Allen v Allen: CA 1894

Lopes LJ said: ‘It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination.’

Judges:

Lopes LJ

Citations:

[1894] P 248

Cited by:

Cited – Chilton v Saga Holidays Plc CA 3-Dec-1984
At a trial under the small claims procedure, the registrar had declined to allow the defendant company to dross examine the plaintiff, and the counr court judge had held that decision to be well within the registrar’s discertion under the rules, on . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 12 April 2022; Ref: scu.568890

Boyes v Cook: CA 1880

When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James LJ said that when interpreting a will, the court should ‘place [itself] in [the testator’s] arm-chair’

Judges:

James LJ

Citations:

(1880) 14 Ch D 53, (1880) 49 LJCh 350

Jurisdiction:

England and Wales

Cited by:

Cited – Marley 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 . .
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.

Wills and Probate

Updated: 12 April 2022; Ref: scu.536790

Browns Case: 1581

A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord’s fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord’s fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.

Citations:

[1581] EngR 13, (1581) 4 Co Rep 21, (1581) 76 ER 911

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 12 April 2022; Ref: scu.429391

Aynsworth v Pollard: 1635

That Thomas Hall deceased, having only one Child the Plaintiff, made his Will, and three Executors in Trust, for the Use of the Defendant Mary Pollard, whom he intended to have married ; and by his Will, after Debts and Legacies, gave the Residue of his Estate to his Executors, in Trust for the said Mary Pollard : That two of the Executors declared by their Answer, That the Trust was for the said Mary Pollard, but the third Executor declared, He conceived the Trust was for the Plaintiff, and that the said Hall declared no Trust in him for the said Mary Pollard.
That it being doubtful to which of them this Trust is, it was referred to a Judge, who certified.
That he conceives, That in Extremity there is no Trust proved according to the Will, but it appearing that the said Mary Pollard was a lewd Woman, and had abused the said Hall, This Court, in Respect the Trust was not proved according to the Letter of the Will, think it not fit to relieve the said Mary Pollard on her Bill, for the Surplus of the said Hall’s Estate, this Court much disliking that the Estate of the said Hall should be given away from his own Child to the said Mary Pollard, who hath and had an Husband living at the Time of the said Will, and dismissed Pollards Bill.

Citations:

[1635] EngR 2, (1635-36) 1 Rep Ch 101, (1635) 21 ER 519 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate

Updated: 12 April 2022; Ref: scu.420573

Alexander v Alexander: 1669

The Suit is to discover the Estate of Richard Alexander deceased, which is come to the Defendant’s hands, to satisfy a Debt of andpound;300 due to the Plaintiff from the said Richard Alexander.
The Defendant insisted, That the Plaintiff ought not to have ReIief in this Court, in regard the Assets in the Defendant’s hands were legal Assets, and nothing appeared, but that the Plaintiff had her proper Remedy at Law, having not proved any Thing more to be in the defendant’s hands than was confessed in the Defendant’s Answer.
But the Plaintiff insisted, That this Court hath directed Accounts in Cases of this nature to avoid Circuity of Action, and further Charge and Trouble of Suits ; and that this Court being possess’d of the Cause, and the Parties at Issue on Proofs, the same was as proper for this Court, as at Common Law.
This Court ordered Precedents to be searched, where this Court hath directed Accounts and given Relief in this Case, and the Cause coming to be heard on the Precedents and Merits thereof, and the Plaintiffs insisted, that there is sufficient Assets of the said Richard Alexander come to the Defendant’s hands, to satisfy the Plaintiffs Debt with Overplus.
This Court decreed the Defendant to come to an Account for the Estate of one Blackhall, unadministered.

Citations:

[1669] EngR 8, (1669-70) 2 Rep Ch 37, (1669) 21 ER 609 (C)

Links:

Commonlii

Wills and Probate

Updated: 12 April 2022; Ref: scu.406848

In The Goods Of Elizabeth Brand: 1831

A testatrix executed a wiil, and thereupon destroyed a former will, and subsequently executed two other wills. The last mill was propounded, but abandoned. A decree then issued calling on all parties interested to shew cause why probate of the instructions for the first will should not be granted; and the Court, on proof per testes that the instructions were of the same effect is the first will, that that will was executed wheri the deceased was sane, but destroyed and the other wills executed when insane, pronounced for the instructions, and refused coats out of the estate to persons in distribution who by interrogatories set up insanity when the first will waa executed.

Citations:

[1831] EngR 118, (1831) 3 Hag Ecc 754, (1831) 162 ER 1333

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Health

Updated: 12 April 2022; Ref: scu.319996

Smith and Smith v Smith: 1969

The witnesses did not see the attestation clause on a will and although they saw the testatrix write something on the document, they did not see what was being written.
Held: Witnesses to the execution of a will need not know that the document which they see the testator sign is a will. The court was prepared to infer that the testatrix was signing the will, the presumption that everything was duly done being a strong one in the absence of evidence clearly rebutting the presumption.

Citations:

(1869) LR 1 PandD 143

Cited by:

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

Wills and Probate

Updated: 12 April 2022; Ref: scu.223789

Kane v Radley-Kane and Others: ChD 1 Jun 1998

A sole personal administrator, appropriating private shares in company from an estate to satisfy his own statutory legacy, was in breach of the rule against self dealing, when this was done without the consent either of the court or the other beneficiaries.

Citations:

Gazette 15-Jul-1998, Times 01-Jun-1998, Gazette 17-Jun-1998

Wills and Probate

Updated: 09 April 2022; Ref: scu.82667

Taulbut and Others v Davey (As Executrix of The Deceased): ChD 10 Apr 2018

Application for removal of an executor, and for construction of the will, and in particular whether a letter of wishes was part of the will or binding on the trustees.

Citations:

[2018] EWHC 730 (Ch)

Links:

Bailii

Statutes:

Administration of Justice Act 1985 50

Jurisdiction:

England and Wales

Wills and Probate

Updated: 07 April 2022; Ref: scu.608334

Kershaw v Micklethwaite and Others: ChD 12 Feb 2010

Application by the claimant, Mr Kershaw, for some or all of the defendants to be removed as executors of the Will of Mr Kershaw’s mother.

Judges:

Newey J

Citations:

[2010] EWHC 506 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Wills and Probate

Updated: 05 April 2022; Ref: scu.601929

Oldham Metropolitan Borough Council and Others v Makin and Others: ChD 13 Oct 2017

This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady (the ‘deceased’), one of the infamous Moors murderers.

Judges:

Sir Geoffrey Vos, Chancellor of the High Court

Citations:

[2017] EWHC 2543 (Ch), [2017] WLR(D) 670

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Wills and Probate

Updated: 01 April 2022; Ref: scu.599626

Makin v News Group Newspapers Ltd: ChD 12 Jun 2017

The solicitor and proposed executor of the will of the infamous Moors Murder sought an injunction to prevent the publication by the defendant newspaper of the terms of the will, alleging that the information had been received in breach of confidence. The court now gave reasons for refusal of the application.
Held: ‘i) there was a public interest in the fact that the will contained details of a book which Brady had apparently written about his crimes which he wanted published;
ii) there was obviously no risk that publication would cause detriment to Brady or his reputation;
iii) the will would have to be made public in due course in any even
iv) publication would not cause any material further prejudice to Mr. Makin in relation to the difficulties which he faced in making arrangements for Brady’s funeral. There had already been intense media speculation and interest in that regard;
v) there was a risk of significant loss and damage to The Sun if I granted the injunction, because it would have to stop, or make significant changes to its publication processes, if I were to require the article to be removed from the newspaper; and
vi) as executor, Mr. Makin had no significant assets from Brady’s estate with which to meet any cross-undertaking as to damages.

Judges:

Snowden J

Citations:

[2017] EWHC 1386 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Media, Wills and Probate, Intellectual Property

Updated: 27 March 2022; Ref: scu.588214

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.

Citations:

[1999] 1 FLR 767

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
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 . .
Cited – Lambo v Kelly-Lambo ChD 25-Sep-2018
Dispute concerning the disposal of the body of Mr Olawola Akambi Lambo . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 March 2022; Ref: scu.267635

Arthur Sinclair of Masilapatam, Esq v Margaret Young, Wife of James Gordon, Younger of Cairston, and George Andrew, Writer In Edinburgh, Her Curator: HL 20 Mar 1787

Succession to Adjudications – Interest – Heritable or Moveable. – Whether the accruing interest in an adjudication belongs to the heir or executor? Held, in a question of compensation, that the interest accumulated and accruing, in an adjudication, is heritable, and belongs to the heir, and therefore did not fall under the husband’s jus mariti.

Citations:

[1787] UKHL 3 – Paton – 64

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 23 March 2022; Ref: scu.581016

Miss Jane Whitefoord, Only Surviving Child of The Deceased Bryce Whitefoord v James Whitefoord, Esq: HL 15 Mar 1788

Succession – Fiar – Infeftment – Dispensation Clause – Prescription. – A father conveyed his estates to his heir male, whom failing to his eldest daughter. The heir male, after the death of the father, succeeded, but died without issue; having, previous to his death, conveyed the estates to a remote relation of the same name: Held, that as fiar, he was entitled so to convey the estates, notwithstanding the destination over in favour of the daughter. Objection to sasine, that the dispensation clause, granted by the Crown, making infeftment on one part of the lands good for the whole was inept, these lands being held of different superiors. Objection repelled, prescription having run upon the title. Affirmed in the House of Lords, without prejudice to any challenge appearing on the face of the sasine of the lands of Kirkbryde; said reservation being of consent of parties.

Citations:

[1788] UKHL 3 – Paton – 101

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 23 March 2022; Ref: scu.581001

Ashcroft v Barnsdale and Others: ChD 30 Jul 2010

The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the court.
Held: The request for rectification was granted. The claimant had demonstrated a specific common intention as to how the parties’ fiscal objectives were to be achieved; and that, owing to a mistake in the way in which that intention was expressed in the Deed of Variation, effect had not been given to that intention.
Hodge J QC said: ‘The court cannot rectify a document merely because it fails to achieve the fiscal objectives of the parties to it. A mere misapprehension as to the tax consequences of executing a particular document will not justify an order for its rectification. The specific intention of the parties as to how the fiscal objective was to be achieved must be shown if the court is to order rectification. The court will order the rectification of a document only if it is satisfied by cogent evidence (sufficient to counteract the effect of the parties’ subscription to the relevant document) that: (1) the document does not give effect to the true agreement or arrangement between the parties, and (2) there is an issue, capable of being contested, between the parties; it being irrelevant, first, that rectification of the document is sought or consented to by all of them; and, secondly, that rectification is desired because it has beneficial fiscal consequences. Conversely, the court will not order rectification of a document if the parties’ rights will be unaffected, and if the only effect of the order will be to secure a fiscal benefit for one or more of them.’

Judges:

Hodge J QC

Citations:

[2010] EWHC 1948 (Ch)

Links:

Bailii

Statutes:

Inheritance Tax Act 1984 211

Jurisdiction:

England and Wales

Citing:

Cited – Whiteside v Whiteside CA 1950
The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Cited – Racal Group Services Limited v Ashmore CA 1995
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured.
Held: The company’s appeal . .
Cited – Allnutt and Another v Wilding and others; Re Strain (deceased) CA 3-Apr-2007
The trustees of a discretionary settlement requested its rectification on the basis that the now deceased settlor’s solicitor had mistakenly not appreciated the need to confer interests in possession on the beneficiaries, with the consequence that . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity, Inheritance Tax

Updated: 06 February 2022; Ref: scu.421236

Al-Bassam v Al-Bassam: CA 1 Jul 2004

The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The real issue was as to whether Sharia law should be applied and whether the will was executed properly. Issues to be decided by a court in Saudi would follow the decisions to be made first by the English court. Case management directions were to be made to bring before the English court the issues which that court can, and should, decide before addressing issues of Islamic law. The perpetual restraint against the defendant issuing proceedings in Riyadh was lifted, and the claimant was to be allowed to amend her pleadings.

Judges:

Sir Andrew Morritt VC, Lord Justice Chadwick, Lord Justice Carnwath

Citations:

[2004] EWCA Civ 857, Times 22-Jul-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Wim Harry Gerard Maronier v Bryan Larmer CA 29-May-2002
The defendant had been a dentist in the Netherlands. An action for damages was begun against him, but then stayed. Judgment was later entered in the Netherlands after he had moved to the UK, and of which he was ignorant. There was no subsisting . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Pelligrini v Italy ECHR 2002
. .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Jurisdiction

Updated: 31 January 2022; Ref: scu.198514

Adepoju v Akinola: ChD 7 Dec 2016

The claimant disputed whether the defendant had been lawfully married to the claimat’s deceased mother, and possible marriage having been polygaous, and without the defendant having divorced his first wife.
Held: Master Matthews set out the approach of the courts to matters of evidence and the burden of proof. Pointing out that: ‘the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to’

[2016] EWHC 3160 (Ch)
Bailii
England and Wales

Litigation Practice, Wills and Probate

Updated: 26 January 2022; Ref: scu.571991

In 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 son. On her death, the other children argued that the share to be taken by the son should be reducd by the amount of the gift.
Held: Though the gift was made without the son’s knowledged or consent, it had the appearance of being made out of the son’s share and in order to protect the grandchild, and it could be set off against the son’s portion of the residuary estate. Where the intention could be understood to anticipate a share of the portion which the child would have received under the will, that portion was to be adeemed to the extent of the gift. ‘As ademption of a gift by will by way of a later inter vivos gift is a working out of the intention of the donor there would seem . . to be no need for the donee either to know of the prospective gift by will or to be party to or to know of the inter vivos gift.’

Lindsay J
Gazette 21-Apr-1999, Times 02-Apr-1999, Gazette 28-Apr-1999
Enduring Powers of Attorney Act 1985 3(4)
Citing:
Cited – Ex Parte Pye 1811
A person acting in loco parentis is ‘in the situation of the person described as the lawful father of the child’ . .
Cited – 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 . .
Cited – Re C (A Patient) ChD 1991
It may be likely that more than one kind of provision may be described as what the donor of the power of attorney ‘might be expected to provide’. ‘I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, . .
Cited – Watson and Watson 1864
A gift in a will is not to be adeemed by small lifetime gifts – they are not generally ‘portions’ of the inheritance. A gift may be a portion where it is from parent to child: ‘The rule applies not only to parent and child …’ . .
Cited – Pankhurst v Howell 1870
If both a gift by will to a donee and a later gift inter vivos by the testator to the same donee are a ‘pure bounty’, then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will be able to take . .
Cited – In Re Pollock CA 7-Mar-1885
There exists a special consideration sufficient to deny a gift in a will the character of ‘pure bounty’ is where the gift by will has a particular purpose identified in the will itself. The language may show that the gift is intended to meet a . .
Cited – Re Ashton ChD 1897
Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
Cited – In Re Eardley 1920
The court considered whether a gift might adeem a gift in a will by ‘by a father or a person in loco parentis’ but ‘the matter must be regarded from a wider point of view’. The rule against double portions is, in effect, no more than one way of . .
Cited – Re Ware 1926
No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such. . .
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 . .
Cited – In re George’s Will Trusts ChD 1949
If the basic ingredients of a portion are present, then the question of whether or not a gift by will is in fact a portion depends to a large extent upon the donor’s intentions. The testator, by his inter vivos gift of a portion, ‘as it were . .
Cited – In re R (Enduring Powers of Attorney) ChD 1990
The claimant had worked for the deceased for many years. The deceased gave her nephew an enduring power of attorney which was in due course registered. The nephew dismissed the claimant. The claimant said he had worked for many years at a very low . .
Cited – In re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
Cited – Pym v Lockyer 1840
It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: ‘in the case of a parent, a legacy to a child is presumed to be intended to be a portion . .’ The court queried the likelihood of an intention in a grandfather . .
Cited – Kirk v Eddowes 1844
The court discussed cases of ademption in a context where the two gifts were by instruments, to the effect that: ‘… The law raises a presumption that the second instrument was an ademption of the gift by the instrument of earlier date …’ Though . .
Cited – 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 . .
Cited – Chapman v Salt 1709
A gift in a will to a married woman was adeemed by a later gift by the testatrix of a note for the same sum to her husband. It had been objected that the note was to one and the legacy to another but evidence was received that the note was intended . .
Cited – Shudal v Jekyll 1742
Whether ademption takes place is settled by identifying the testator’s intention. Despite the need to rely upon documents, oral evidence has been ‘constantly admitted in all these cases’. . .
Cited – McLure v Evans 1861
The court must look to the testator’s intentions to decide whether there has been an ademption of a gift. . .
Cited – In Re Shields 1912
Warrington J said: ‘By ademption is meant 1 think in this context a transaction to which the donee as well as the donor is a party.’ Since the testator’s intention had not been communicated to the legatee in his lifetime there was no ademption. . .
Cited – Lord Chichester v Coventry HL 1867
Though the doctrines of ademption and of satisfaction of gifts are related, it is more difficult to establish satisfaction. Slight differences between the two gifts might be overlooked, but where there is real difference between the two gifts by way . .
Cited – In re Furness 1901
A legacy may be adeemed as a portion ‘when a parent by will gives a legacy to a child . .’ It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift. . .
Cited – Earl of Durham v Wharton HL 1836
WL, brother of JL, gave property to JL charged with a legacy of andpound;5,000 to JL’s daughter, Susan, then unmarried. JL by his will later gave her andpound;10,000 on trust for life with remainder to her children and provided that the . .
Cited – Re Kershaw’s Trusts 1868
In the particular circumstances a provision made for the benefit of the husband was for the benefit of the wife. . .
Cited – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Cited – Lowther v Bentinck 1874
An exercise can be recognised as being for the benefit of a woman when an advance is made to set up her husband in business. . .
Cited – Cooper v MacDonald 1873
A testator by will gave a share in his residuary estate to his then unmarred daughter and later, under a marriage settlement to which he was party, gave two gifts, namely andpound;1,000 to the prospective husband for his own use and benefit and . .
Cited – Hoskins v Hoskins 1706
The rule against double portions applied so that a larger gift by will would be totally adeemed by a later and smaller inter vivos gift. . .
Cited – Rosewell v Bennet 1744
Where the rule against double portions is held to apply, the effect of the later gift inter vivos, does not cause a revocation of the will, but rather brings about a position in which, to the extent of that later gift, there has been an acceleration . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 24 January 2022; Ref: scu.82240

The Royal Society v Robinson and Others: ChD 17 Nov 2015

Claim to construe a Will or in the alternative to rectify it, or in the further alternative for it to be admitted to probate with certain words omitted.
Held: The court construed a reference to ‘the United Kingdom’ as including the Channel Islands and the Isle of Man despite initially observing that: ‘There is no doubt that the technical meaning of ‘United Kingdom’ would not include Jersey and the Channel Islands or the Isle of Man.’

Nugee J
[2015] EWHC 3442 (Ch)
Bailii
England and Wales
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.

Wills and Probate

Updated: 23 January 2022; Ref: scu.570007

Re D: CoP 1 Jul 2016

Appeal against an order allowing an applicant for an order authorising her to execute a statutory will to be released from the obligation to serve the papers on someone who is currently entitled to a half share of the estate on intestacy and will be disinherited if the proposed statutory will is executed.

Lush SJ
[2016] EWCOP 35
Bailii

Wills and Probate

Updated: 18 January 2022; Ref: scu.566561

Cowderoy v Cranfield: ChD 24 Jun 2011

The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation’

Morgan J
[2011] EWHC 1616 (Ch)
Bailii
England and Wales
Cited by:
Principal judgment – Cowderoy v Cranfield ChD 13-Oct-2011
. .
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 15 January 2022; Ref: scu.441216

Wood and Another v Smith and Another: CA 6 May 1992

A home made will signed only at the top of the page but where there was a clear indication of testamentary intention is a valid will.

Gazette 06-May-1992
Wills Act 1937
England and Wales
Cited by:
Cited – Weatherhill 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: 13 January 2022; Ref: scu.90582

Henderson v Wilcox and Others: ChD 3 Dec 2015

The claimant had been convicted of the manslaughter of his mother, and sentenced to be detained for treatment in a mental health hospital. It was thought unlikely he would ever be fit to be released. He would otherwise have inherited under her will. He now sought disapplication of the rule under the 1982 Act.
Held: As to interests under discretionary trusts executed by te deceased in her lifetime, the forfeiture rule did not apply.

David Cooke HHJ
[2015] EWHC 3469 (Ch)
Bailii
Mental Health Act 1983 37, Forfeiture Act 1982 2 3, Forfeiture Act 1986 1(1)
England and Wales

Wills and Probate

Updated: 07 January 2022; Ref: scu.556455

Crawford, Commonly An Infant, By John Crawford, etc v Viscount of Garnock, and His Creditors; and others: HL 28 Apr 1735

Tailzie – Title to pursue – An heir under an entail, which was not properly recorded, having possessed without inserting in his infeftments the fetters of the entail, and contracted debts; the next heir (who had made up his titles in the same manner,) brought an action to have it declared that these debts were chargeable on the estate, and that he might lawfully sell a part of it in order to pay them. It was found that he had no power to sell,-the right of the creditors to bring proper actions for affecting the estates being reserved.

[1735] UKHL 1 – Paton – 167, (1735) 1 Paton 167
Bailii
Scotland

Wills and Probate

Updated: 06 January 2022; Ref: scu.554579

William Nisbet of Dirleton v Janet, Jane, and Willielmina Nisbetd Erski: HL 7 Mar 1727

Legitim – Husband and Wife – Provisions to Heirs and Children – Bonds
Portions to children in a contract of marriage if not so expressed, do not exclude their right of legitim.
Upon a wife’s renouncing her thirds, by the contract of marriage, the division of the personal estate is bipartite, one half legitim, the other half dead’s part.
Provisions to children, in this case, do not come off the whole head of the executry as a debt; but they are first to impute the legitim in payment of these portions, and take the rest as a debt from the deads’ part if necessary.
Bonds fall under legitim

[1727] UKHL Robertson – 594, (1727) Robertson 594
Bailii
Scotland

Wills and Probate

Updated: 05 January 2022; Ref: scu.554238

Falconer v Dame Elizabeth Falconer, Ramsay, Archer, Minister of The Gospel At Laurencekirk, or Conveth, and Mortimer: HL 4 Jun 1721

Presumption. –
Two mortifications for educating children at a parish school, are found in the grantor’s repositories after his death; the one bore date four years after the other, but was in same terms with the first, with this alteration only, that a larger sum was mortified, and a greater number of boys to be educated: the Court having found that both subsisted as distinct deeds; the judgment is reversed.
The Court having also refused a proof by the instrumentary witnesses, of the donor’s intention; their judgment is reversed, and liberty given to examine the instrumentary witnesses.

[1721] UKHL Robertson – 377
Bailii
Scotland

Wills and Probate

Updated: 05 January 2022; Ref: scu.553673

Killick v Pountney and Another; Re Killick Deceased: ChD 31 Mar 1999

Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their favour. The court was asked to deal with the matter on affidavit evidence alone, the first defendant failing to appear to give evidence to defend the will.
Held: A judge in a contested probate case had an inquisitorial function seeking truth, and should be ready to see through attempts to manoeuvre the court. It was for a party who asserted undue influence to prove it. Where there was evidence of improper influence, the additional presence of some enfeeblement in the testator would make it easier to find that such influence was ‘undue’, but evidence of such infirmity does not itself establish undue influence. Adverse inferences should not normally be drawn, but the facts here allowed such an inference of undue influence. The fact that the defendant did not appear at court was not conclusive against him.

James Munby QC
Times 30-Apr-1999, Independent 10-May-1999, (2000) 1 WTLR 41
Citing:
Cited – Boyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
Cited – Hall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – Craig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
Cited – Freeman v Cox 1878
. .

Cited by:
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 05 January 2022; Ref: scu.82774

Douglas As Assignees of Douglas Douglas v Montgomerie, Paterson, and Others, Creditors: HL 18 Jun 1714

Fiar – An estate being settled by an heiress to her husband and herself in conjunct fee and life-rent and the heirs to be procreated between them in fee, whom failing to the husband, his nearest lawful heirs and assignees; the husband was fiar.
Donatio non praesumitur – The fee taken up by a daughter as heir to her father, where a disposition had been made to a Ion (dceased), upon which infeftment had followed, but never cloathed with possession nor recorded.
Adjudication – A charge being given to a son to enter heir to his uncle and mother, and adjudication being led thereon; but the father being afterwards found to be fiar, the first adjudication is reduced.
The said son refusing to subject himself to his father’s debts, has no title to quarrel the adjudication led of his father’s fee.

[1714] UKHL Robertson – 99, (1714) Robertson 99
Bailii
Scotland

Wills and Probate

Updated: 04 January 2022; Ref: scu.553471

Matouskova: ECJ 6 Oct 2015

Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – Article 1(1)(b) – Substantive scope – Inheritance settlement agreement between the surviving spouse and minor children represented by a guardian ad litem – Classification – Requirement for approval of such an agreement by the court – Measure relating to parental responsibility or measure relating to succession

C-404/14, [2015] EUECJ C-404/14
Bailii
European

Children, Family, Wills and Probate

Updated: 04 January 2022; Ref: scu.553099

Carr 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 time when the testator had made the amendments to his instructions for the second will excluding the children who now applied, the court was satisfied that the testator had capacity. There was clear evidence to that effect, and rational reasons for the choices made.

Floyd J
[2008] EWHC 2582 (Ch)
Bailii
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 – 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 – Scammell 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 . .
Cited – Cattermole v Prisk 2006
Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 18 December 2021; Ref: scu.277333