Tag: Wills and Probate

Creasey and Another v Sole and Others: ChD 24 May 2013

The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm.

Morgan J
[2013] EWHC 1410 (Ch)
Bailii
England and Wales
Citing:
Cited – Massy v Rogers 1883
. .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Cited – In re Raven; Spencer v National Association for the Prevention of Consumption and Tuberculosis 1915
Extrinsic evidence of the identity of a beneficiary can only be admitted where there is a description applying indifferently to more than one person or society. It was contrary to public policy to accept wording in a will which purported to oust the . .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .
Cited – Betteridge v The United Kingdom ECHR 29-Jan-2013
The applicant prisoner complained of a delay in his release pending a review by the Parole Board.
Held: The violation of article 5(4) resulted from a delay in the holding of a review by the Board following the expiry of an IPP prisoner’s . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 13 December 2021; Ref: scu.510081

Birch v Treasury Solicitor: CA 1950

There had been donationes mortis causa of the money standing in four accounts, by the delivery of a Post Office Savings Bank book and three other bank books of various descriptions. Lord Evershed MR stated: ‘the courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged as a donatio is an attempt to make a nuncupative will, or a will in other respects not complying with the forms required by the Wills Act.’
Lord Evershed MR restated the principle in the following terms: ‘The question then is: Where actual transfer does not or cannot take place, what will ‘amount to that’? As a matter of principle, delivery of the indicia of title (viz., the document or thing the possession or production of which entitles the possessor to the money or property purported to be given), as distinct from mere evidence of title, should satisfy Lord Hardwicke’s condition.’

Lord Evershed MR
[1951] Ch 298, [1950] 2 All ER 1198
Wills Act 1837
England and Wales
Cited by:
Cited – King v The Chiltern Dog Rescue and Another CA 9-Jun-2015
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover 75,000 pounds against . .
Cited – Sen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 November 2021; Ref: scu.548013

In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose: ChD 1949

The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective

Jenkins J
[1949] Ch 78
England and Wales
Cited by:
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Approved – In re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
Cited – Mascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal from – In re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
Mentioned – Zeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

The 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 further one, and created a trust. The claimant now sought removal of the executrix and to set aside earlier orders made in the administration of the Estate. The US courts had upheld the reciprocal and mutual wills, but the executrix had made applications to the court here without informing the court of the US proceedings, or the claimant of the proceedings.
Held: The applications succeeded. The obligations under a mutual will arose not under the wills themselves but under a trust created at the time when the wills were made. A court did not therefore have jurisdiction to remove an executor under the 1985 Act at the request of somebody not claiming under the will proved. However the Foundation was in a position to apply under the 1896 Act.
In summary proceedings it would be wrong to make any finding that the executrix had behaved dishonestly, but if not she had showed a failure to understand her duties, and the court was not inclined to believe that she would abide by court orders. The orders were made.
In proceedings under section 50 of the 1985 Act: ‘The overriding consideration is, therefore, whether the trusts are being properly executed; or, as he put it in a later passage, the main guide must be ‘the welfare of the beneficiaries.”

Lewison J
[2007] EWHC 1314 (Ch), [2007] 4 All ER 81
Bailii
Judicial Trustees Act 1896, Administration of Justice Act 1985 50
England and Wales
Citing:
Cited – 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. . .
Cited – Re Ratcliff 1898
The court has no inherent jurisdiction to remove a personal representative in that capacity. . .
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – In re Hagger; Freeman v Arscott ChD 1930
The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Re Marshall’s Will Trusts 1945
The word ‘trust’ is to be given its ordinary meaning. Cohen J adopted, as its ordinary meaning, the definition then to be found in Underhill on Trusts: ‘A trust is an equitable obligation, binding a person (who is called a trustee) to deal with . .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Mentioned – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Wytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
Cited – Nana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
Cited – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
Cited – Kammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
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: 11 November 2021; Ref: scu.253582

Di Placito v Slater and others: CA 19 Dec 2003

The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an undertaking the court should ask: ‘whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made.’
Potter LJ: ‘It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and ‘must be made in an unequivocal manner and must not run counter to any important public interest’, Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications ‘neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public’ (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case.’
A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences: ‘It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36.’

Lord Justice Laws Lord Justice Potter Lady Justice Arden
[2003] EWCA Civ 1863, Times 29-Jan-2004, [2004] 1 WLR 1605
Bailii
England and Wales
Citing:
Cited – Eronat v Tabbah CA 10-Jul-2002
. .
Mentioned – Re Hudson, Hudson v Hudson ChD 1966
The plaintiff’s marriage had been dissolved and her former husband was ordered to pay her maintenance at a specified rate. The husband subsequently filed evidence that he was unable to comply with that order but offered to undertake to pay one-third . .
Cited – Miller and Another v Scorey and Others ChD 2-Apr-1996
Using disclosed documents in second action with similar parties may be a contempt, depending significantly upon whether any undertaking, express or implied was given. The court struck out an action where proceedings were commenced in reliance on . .
Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Cited – Woodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .
Cited – Eronat v Tabbah CA 10-Jul-2002
. .
Cited – Purcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
Cited – Siebe Gorman and Co Ltd v Pineupac Ltd 1982
The court should be expected to be reluctant to relieve a party of the consequences of a consent order. . .
Cited – Ropac Ltd v Inntrepreneur Pub Co and Another ChD 7-Jun-2000
There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a . .
Cited – Dermot Gerard Richard Walsh v Andre Martin Misseldine CA 29-Feb-2000
The claimant sought damages for injuries from 1989. His claim was pursued effectively, but a four-year delay ensued after 1994. He then sought to enlarge his claim greatly by introducing a lot of new issues of which the defendant’s insurers had no . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Hakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Purdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .

Cited by:
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Cited – Warren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
Cited – Barron and Others v Collins MEP QBD 22-Dec-2016
The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.188901

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 were divorced, and they differed as to what should be done.
Held: The form of application was for a specific issue order. JS had capacity, and there would be no inevitable practical obstacle: ‘All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.’
Applying the JSB case, with acknowledgement to the different statutory context, a prospective order was available, and granted injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies.

Peter Jackson J
[2016] Inquest LR 259, [2016] EWHC 2859 (Fam), (2017) 153 BMLR 152, [2016] WLR(D) 650, [2017] WTLR 227, [2017] Med LR 37, [2017] 4 WLR 1
Bailii, Judiciary
Human Tissue Act 2004, Children Act 1989 8, Wills Act 1837 8, Non-Contentious Probate Rules 1987 22(1)(c)
England and Wales
Citing:
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – 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. . .
Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
Cited – Borrows v HM Coroner for Preston QBD 15-May-2008
The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral. . .
Cited – Ibuna and Another v Arroyo and Another ChD 2-Mar-2012
The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (‘Congressman Arroyo’) to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines. . .
Cited – 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 . .
Cited – Curtis v Sheffield CA 1882
Lord Jessel MR said: ‘Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – Public Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Applied – In re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
Cited – Takamore v Clarke and others 18-Dec-2012
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
Cited – Hughes and Others v Bourne and Others ChD 27-Jul-2012
A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children, Health Professions

Leading Case

Updated: 09 November 2021; Ref: scu.571412

Kloosman v Aylen and Others: ChD 8 Mar 2013

The deceased had before his death sold his principle property and made substantial gifts to beneficiaries under his existing will. The parties disputed whether the gifts should be brought into the estate to set off against the gifts made in the will.
Held: On the facts as found the gift was not a portion as now defined, and did not adeem the interest in the will. The deceased had learned that he had bowel cancer and particularly would need care and support from this daughter. His intention was that the gifts would, in part, repay two daughters for what they had already spent taking on his care and in part would help finance the inevitable future costs of the deceased’s care and housing. The lifetime gifts therefore did not have the character of portions and the presumption against double portions did not arise. It was not inappropriate to make provision in the way that he had.

Vivien Rose (Sitting as a Deputy Judge of the Chancery Division)
[2013] EWHC 435 (Ch)
Bailii
Administration of Justice Act 1985
England and Wales
Citing:
Applied – In re Cameron deceased ChD 1999
The court was asked whether a gift was a ‘portion’ made in order to establish a child in life or make substantial provision for him.
Held: The presumption against double portions arises because it is assumed that a parent only intends to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 09 November 2021; Ref: scu.471748

Re Benmusa: FD 14 Mar 2017

No Access to will of Princess Margaret

The claimant sought to have unsealed the will of the late Princess Margaret.
Held: The application was struck out: ‘The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.’

Sir James Munby P FD
[2017] EWHC 494 (Fam)
Bailii
England and Wales
Citing:
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA 8-Feb-2008
The claimant sought leave to appeal refusal of access to the will of Princess Margaret. He wished to prove that he was her illegitimate son. The will had been subject to an order providing that its contens were not to be published.
Held: . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 November 2021; Ref: scu.580988

Williams v Lawrence and Another: ChD 28 Jul 2011

The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in favour of one of the purchaser, one of the defendants, and therefore reduced in value.
Held: The effect of Regulation 12 was to allow such an application to go back much further than could happen in a normal insolvency, but in this case, at the time of the transfer, the parties knew of the estate’s debts. On the facts, no common intention to create a binding right was established, and therefore the sale was at a gross undervalue, and was to be set aside.

David Cooke J
[2011] EWHC 2001 (Ch)
Bailii
Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999)
England and Wales
Citing:
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Pascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
Cited – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
Cited – James v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency, Trusts

Updated: 09 November 2021; Ref: scu.442271

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 effect of an omnibus survivorship clause.
Held: ‘the question is not one as to the meaning of the survivorship clause but rather as to its application. Is it what has been termed an ‘omnibus’ survivorship clause, which applies throughout the will generally, or is its application confined to the secondary gift, which takes effect only if the primary gift to the spouse of the maker of the relevant will fails?’ This was not a case of a mistake in the draughtsmanship.
As to the burden of costs: ‘I am entirely satisfied that in this case the defence has been conducted, through Mr Hewitt, perfectly properly but for the benefit of the defendants themselves (or their professional indemnity insurers). The construction issue has been defended, not for the benefit of the estate, but for the benefit of the solicitors. They have lost; and, in my judgment, costs should follow the event. So I will order the defendants to pay the costs of this Part 8 claim. That is entirely separate from the outcome of any related professional liability claim.’

Hodge QC HHJ
[2016] EWHC 2160 (Ch)
Bailii
Administration of Justice Act 1982 21
England and Wales
Citing:
Cited – 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 . .
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 – Sammut and others v Manzi and others PC 4-Dec-2008
(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, . .
Not applicable – 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: . .
Cited – Re Buckton, Buckton v Buckton ChD 1907
An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek . .
Cited – 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 . .
Cited – 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 . .
Cited – Slattery and Others v Jagger and Others ChD 10-Nov-2015
The court read the words ‘to my wife’ into a specific devise of a property from which they had accidentally been omitted by a process of construction. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 02 November 2021; Ref: scu.570846

Jones and others v Firkin-Flood: ChD 17 Oct 2008

The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue influence. The trustees requested the court to determine the trusts on which the shares were now held.
Held: The evidence of some family members and others had been variously bitter and unreliable including making baseless allegations of forgery and lying about attempting to pay witnesses for evidence. There had been no agreement to share the estate equally, but the company had since been run in a way which was prejudicial to the minority shareholders.
Since the death, the trustees had failed to take proper control of the company’s activities or to take note that the company had not declared dividends. Though the failure yet to provide accounts was as yet excusable, their other failings were a total abdication of their duties, including the duty to regulate the activities of the minority shareholder exercising control over the company, and preventing self dealing actions by him with company assets. The solicitor and professional trustee had failed, and the failures of the lay trustees stemmed largely from his: ‘the Trustees had by their conduct . . demonstrated their collective and individual unfitness to be Trustees of this trust.’ This was not however a case of dishonesty or deliberate breach. On the other hand the case demonstrated a total breakdown of trust and confidence. One trustee should remain to be joined by new trustees. Though the two proposed trustees should be added provisionally.

Briggs J
[2008] EWHC 2417 (Ch)
Bailii
England and Wales
Citing:
Cited – Bartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) ChD 1980
A claim was made against a trustee for compensation for losses incurred during the administration of the trust.
Held: For a court to order an account by a trustee on the basis of wilful default, and make the defendant liable not only for . .
Cited – Oceanic Steam Navigation Co v Sutherberry 1880
. .
Cited – Beloved Wilkes’ Charity, Re ChD 28-Apr-1851
Trustees are under no general duty to explain the exercise by them of a discretion. . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Holder v Holder; In re Frank Holder dec CA 8-Dec-1967
The court considered a complaint that a trustee had purchased trust property.
Held: There is a residual discretion in the Court to uphold a transaction that technically falls within the prohibition. . .
Cited – ATC (Cayman) v Rothschild Trust Cayman Ltd 2007
(Grand Court of the Cayman Islands) The court considered a proposed undertaking by successor trustees to their predecessors not to distribute a proportion of the trust fund for as long as it was required to meet the outgoing trustees’ entitlement to . .
Cited – Re Thompson’s Settlement 1985
Company shares were held in trust for the grandchildren of the settlor whose two sons were the trustees who effectively ran the company. The plaintiffs proposed the transfer of trust property to the company. The beneficiaries said that such a . .
Cited – Re: Gibson’s Settlement Trusts; Mellor v Gibson 1981
Settlement trustees undertook to execte a deed appointing trust moneys to the settlor’s children. The beneficiaries were not content with the proposed deed, and the trustees sought directions.
Held: The undertaking was invalid as a fetter on . .
Cited – Hillsdown Holdings plc v Pensions Ombudsman 1997
The court had to answer the question of whether the Pensions Ombudsman could make orders which the court could not.
Held: It could not, Knox J said: ‘there is a real distinction between ordering compensation for inconvenience and distress . .
Cited – Swales v Inland Revenue Commissioners 1984
Nicholls J said: ‘It is trite law that trustees cannot fetter the exercise by them at a future date of a discretion possessed by them as trustees.’ . .
Cited – Public Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Cited – Re Clore’s Settlement Trusts ChD 1966
A 21 year old beneficiary of a substantial trust fund requested the trustees to apply for his benefit a sum (equal to about one-seventh of the fund) to a family charitable foundation. He would be entitled to the capital of the fund on attaining 30, . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.277024

Ahluwalia v Singh and Others: ChD 6 Sep 2011

The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
Held: The challenge succeeded. Recognising that the law would require the clearest of evidence to rebut the presumption that a will apparently valid had not been properly attested. Even so, that hurdle had been cleared in this case.

Mark Cawson QC
[2012] WTLR 1, [2011] EWHC 2907 (Ch), [2012] WTLR 1
Bailii
England and Wales
Citing:
Cited – Wright v Rogers 1869
The survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator.
Held: . .
Cited – Wright v Sanderson 1884
The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
Cited – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Cited – Kentfield v Wright ChD 1-Jul-2010
The claimant disputed her mother’s will which left everything to her brother, challenging its execution. She said that the second witness had not been present when the will was signed.
Held: The will stood. Where a will appeared to be properly . .
Cited – Couwenbergh v Valkova ChD 16-Oct-2008
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .

Cited by:
Appeal from – Singh and Others v Ahluwalia CA 11-Dec-2012
The will on its face was validly executed but evidence had established that one witness had not been present. The judge had found the evidence to be sufficient to rebut the strong presumption that the will had been validly executed. Permission to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Leading Case

Updated: 02 November 2021; Ref: scu.459699

Hand and Another v George: ChD 17 Mar 2017

Adopted grandchildren entitled to succession

The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not entitled to inherit the part of their father’s estate that derived from the will. The court had to respect the claimants’ Convention right under article 14 in conjunction with article 8 of the Convention not to be discriminated against by the application of a legislative provision which caused the ambiguous reference in the testator’s will to his grandchildren to be construed as excluding them as his adopted grandchildren: ‘to apply the HRA in combination with the wording of the will is not, in my judgment, truly a retrospective application of the HRA. Following the coming into force of the HRA, if the question of whether a beneficiary in the will has children or not arises for consideration, that question must be addressed having regard to the HRA as well as having regard to the wording of the will. Under domestic legislation, the answer is that the adopted children are not included. But that must now be read in a way which is compliant with the rights that adopted children have not to be discriminated against by domestic legislation because of their adopted status.’

Rose J
[2017] EWHC 533 (Ch), [2017] WLR(D) 198, [2017] 3 WLR 559, [2017] 2 FLR 1565, [2017] WTLR 495, [2017] Ch 449
Bailii, WLRD
European Convention of Human Rights 8 14, Adoption of Children Act 1926, Adoption of Children Act 1949, Adoption Act 1976, Adoption and Children Act 2002
England and Wales
Citing:
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Larkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
Cited – Mazurek v France ECHR 1-Feb-2000
ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial . .
Cited – Wilson v First County Trust (2) CA 2-May-2001
Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Pla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
Cited – Fabris v France [GC] ECHR 7-Feb-2013
ECHR (Grand Chamber) Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Horsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Cited – Abbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Adoption, Human Rights

Updated: 01 November 2021; Ref: scu.581328

Zeital and Another v Kaye and Others: CA 5 Mar 2010

The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator sought the court’s direction. The widow and deceased had lived seperately for over 20 years, and his more recent partner said that he had informally given the shares to her. The widow and children appealed a finding in favour of the gift in respect of one share, and against the costs order.
Held: The appeal succeeded. The steps taken by the deceased to transfer the share fell short of what was required. He had not been himself registered as owner, and could not execute a share transfer. The company was in liquidation, and no share certificate was handed over. The deceased had not done all he could to transfer the share.

Dyson, Maurice Kay, Rimer LJJ
[2010] EWCA Civ 159
Bailii
England and Wales
Citing:
Mentioned – In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .
Mentioned – In re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Company

Updated: 01 November 2021; Ref: scu.402536

Nield-Moir v Freeman: ChD 21 Feb 2018

Valid requirement for DNA test in estate claim

The Court now ruled on the human rights implications of an order for DNA testing to establish whether the claimant was indeed the daughter of the deceased.
Held: The inherent jurisdiction of the court extends to directing that a party to proceedings give a saliva sample by way of mouth swab for the purposes of establishing paternity in a case where paternity is in issue.

Paul Matthews HHJ
[2018] EWHC 299 (Ch), [2018] WLR(D) 109
Bailii, WLRD
England and Wales

Wills and Probate, Family, Human Rights

Updated: 01 November 2021; Ref: scu.605342

Walters v Olins: CA 4 Jul 2008

The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two testators, but the claimant’s argument for insufficency in this case was ill conceived and the appeal failed.

Mummery LJ, Dyson LJ, Maurice Kay LJ
[2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449
Bailii
England and Wales
Citing:
Cited – Goodchild v Goodchild ChD 13-Dec-1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Re Oldham; Hadwen v Myles 1925
The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the . .
Cited – Birch v Curtis ChD 2002
The court held in favour of a mutual will made by the deceased husband with his second wife, to the detriment of the children of the husband’s previous wife, so disinheriting those children from their mother’s assets and indeed the husband’s own . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Cooke v New River Co CA 1888
Bowen LJ said that judgments should be given on points that the judge is bound to decide. Deciding more than is necessary could, ‘like the proverbial chickens of destiny’, come home to roost sooner or later. . .
Appeal from – Olins v Walters ChD 19-Dec-2007
A claim was made for the proof of a will and of a codicil as a mutual will.
Norris J said of one witness: ‘I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document . .

Cited by:
Cited – Fry v Densham-Smith CA 10-Dec-2010
The parties disputed whether wills made were mutual.
Held: The Court upheld the finding of the judge at first instance that there was an oral agreement between two testators (Denny and Laura, each with a son from a previous marriage, Martin . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 01 November 2021; Ref: scu.270583

Marsh v Tyrrell: 1828

Revocation of Earlier Will needs Knowleedge

The testatrix was found to have made a new Will, at a time when her faculties were much impaired, under the undue influence of her husband, who under that Will took her estate absolutely subject only to some small legacies, whereas under the previous Will of the testatrix the principal objects of her bounty were quite different.
Held: To successfully revoke a former will by a new Will it was necessary to prove that the testatrix recollected the general contents of the previous Will.

Sir John Nicholl
(1828) 2 Hagg Ecc 84
England and Wales
Cited by:
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 01 November 2021; Ref: scu.219626

Myers v Myers and Orhers: FD 3 Aug 2004

The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.

Munvy J
[2005] WTLR 851, [2004] EWHC 1944 (Fam)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Cited by:
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.581090

Pitt and Another v Holt and Others: ChD 18 Jan 2010

The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now sought the unravelling of the trust based on either Hastings Bass or mistake.
Held: The rule in Hastings-Bass could be used by others than only trustees. Robert Englehart QC said: ‘A mere failure by someone to take a material consideration into account in the conduct of his own affairs will not justify setting aside for mistake. It was said in argument before me that the law allows you to be as foolish as you like with your own property. On the other hand, there certainly is jurisdiction, irrespective of any trust or fiduciary element, to set aside a voluntary transaction where there has been an operative mistake. Nevertheless, for the rule in Hastings-Bass to apply there is no need to identify a mistake as such, as opposed to a failure to take a relevant consideration into account.’ though there was no real mistake, only a failure to address the effect of the arrangement fully, the rule in Hastings-Bass could be applied and the trust varied.

Robert Englehart, QC
[2010] EWHC 236 (Ch)
Bailii, Times
Mental Health Act 1983
England and Wales
Citing:
Cited – Sieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – Byng v London Life Association CA 1990
The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue.
Held: The decision by the chairman was set aside on the . .
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 – Hunter v Senate Support Services Ltd and others ChD 2005
The court set aside a forfeiture of shares for non-payment of a call. The decisions of the directors to forfeit the shares and to transfer the forfeited shares to the group holding company were flawed, though not improperly motivated, because the . .
Cited – Edge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Anker-Petersen v Christensen ChD 2002
Where a mistake is made as to the effect of an appointment under a trust it may be possible to invoke the court’s jurisdiction to rescind the appointment. Davis J considered Millett J’s distinction between ‘effect’ and ‘consequences’: ‘An example in . .
Cited – Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .
Cited – Wolff v Wolff ChD 6-Sep-2004
The court considered its ability to redraw a document where its legal effect was misunderstood. . .
Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Ogilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
Cited – Burrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and . .

Cited by:
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .

Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate, Inheritance Tax

Leading Case

Updated: 01 November 2021; Ref: scu.396742

Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority: CA 26 Jun 1996

A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now appealed an order striking out their claim on the baiss that it disclosed no reasonable cause of damage.
Held: The appeal failed. Next of kin have no right to regain possession of a deceased’s body part which had been removed for autopsy. There was no ownership of a body after death. The autopsy process did not transform a body part into an object capable of ownership. The claim was pleaded in conversion, bailment and wrongful interference with the brain, and the plaintiffs could not establish that they had the right to possession at the time the brain was disposed of. The plaintiff’s desire to discover exactly what had happened to all the body parts was not a sufficient reason for litigation.
Where there is no executor the duty to take possession of and dispose of the body of the deceased falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration

Peter Gibson LJ, Butler-Sloss LJ, Peter Gibson LJ
Times 15-Jul-1996, Gazette 29-Aug-1996, [1997] 1 WLR 596, [1996] EWCA Civ 1301, (1997) 33 BMLR 146, [1997] 1 FLR 598, [1997] 8 Med LR 357, [1996] 4 All ER 474, [1997] Fam Law 326, [1997] 2 FCR 651
Bailii
Coroners Rules 1984 (1984 No 552)
England and Wales
Citing:
Considered – Doodeward v Spence 1908
(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued . .
Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Clarke v London General Omnibus Co Ltd 1906
The parent of an infant child who dies where the parent has the means to do so, has a responsibility to arrange and pay for the burial. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .

Cited by:
Cited – AB 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.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Buchanan v Milton FD 27-May-1999
The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law . .
Cited – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.80077

Re Buckton, Buckton v Buckton: ChD 1907

An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek guidance from the Court in order to ascertain the interests of the beneficiaries: and see Rules of the Supreme Court 1971, O 66 r 9. Second, beneficiaries may apply to the court by reason of some difficulty of construction or administration that would have justified an application by the trustee, but where it was not convenient for the trustee to apply. In both of those situations, the costs of all parties can be characterised as necessarily incurred for the benefit of the estate. Provided the application was not, in substance, unreasonable, the court might direct costs to be taxed as between solicitor and client and paid out of the estate. Mr Justice Kekewich recorded that: ‘In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts. ‘ In such cases the costs of all parties are necessarily incurred for the benefit of the estate and the court directed them to be taxed as between solicitor and client and paid out of the estate.

Kekewich J
[1907] 2 Ch 406
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, Costs

Leading Case

Updated: 31 October 2021; Ref: scu.570852

Battan Singh v Amirchand: PC 1948

(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand discussed and approved the implication of Parker v Felgate: ‘That case decided that if a testator has given instructions to a solicitor at a time when he was able to appreciate what he was doing in all its relevant bearings, and if the solicitor prepares the will in accordance with these instructions, the will will stand good, though at the time of execution the testator is capable only of understanding that he is executing the will which he has instructed, but is no longer capable of understanding the instructions themselves or the clauses in the will which give effect to them.’ and ‘A testator may have a clear apprehension of the meaning of the draft will submitted to him and may approve it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness is an inducing cause of his choosing strangers to be his legatees, the will is invalid.’
Lord Normand
[1948] AC 161
Citing:
Approved – 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 by:
Cited – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.374721

Francis Hoff and others v Mary Atherton: ChD 2004

A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first.
Nicholas Warren QC
[2004] EWHC 2007 (Ch)
England and Wales
Citing:
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .

Cited by:
Appeal from – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.263528

In re Parkard: 1920

[1920] 1 Ch 596
England and Wales
Cited by:
Cited – Hayward 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.
Updated: 05 September 2021; Ref: scu.179723

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 of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.’
. . and ‘It seems to their Lordships that the jurisdiction which a court of equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’
The court set out the principles underlying a decision to remove a trustee. Lord Blackburn said: ‘The whole of the matters which have been complained of, and the whole that, if this judgment stands, may yet have to be done by the Board, are matters which they had to do, as having accepted the burthen of carrying out the trusts which on the true construction of the will were imposed upon them, and so become trustees. What they had to do as executors merely, such as paying debts, collecting assets, andc., have long ago been over, and by the terms of the compromise the plaintiff cannot now say they have not been done properly. There may be some peculiarity in the Dutch Colonial law, which made it proper to make the prayer in the way in which it was done to remove them from the office of executor; if so, it has not been brought to their Lordships’ notice; the whole case has been argued here, and, as far as their Lordships can perceive, in the Court below, as depending on the principles which should guide an English Court of Equity when called upon to remove old trustees and substitute new ones. It is not disputed that there is a jurisdiction ‘in cases requiring such a remedy,’ as is said in Story’s Equity Jurisprudence, s. 1287, but there is very little to be found to guide us in saying what are the cases requiring such a remedy; so little that their Lordships are compelled to have recourse to general principles.
Story says, s. 1289, ‘But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity’
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate. The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries.’ He referred to cases in which there was a conflict between trustee and beneficiary and continued: ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’
However: ‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded.’
Lord Blackburn
[1884] UKPC 1, (1884) 9 App Cas 371, [1884] UKPC 18, [1884] UKLawRpAC 12
Bailii, Bailii, Commonlii
England and Wales
Cited by:
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – The 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 . .
Cited – Jones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Cited – 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. . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.247442

Vucicevic and Others v Aleksic and Others: ChD 10 Oct 2017

Consequential judgment
Paul Matthews HHJ
[2017] EWHC 2519 (Ch)
Bailii
England and Wales
Citing:
Main Judgment – Vucicevic and Another v Aleksic and Others ChD 20-Sep-2017
. .

Cited by:
See Also – Vucicevic and Another v Aleksic and Others ChD 14-Aug-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.597475

Vucicevic and Another v Aleksic and Others: ChD 20 Sep 2017

Paul Matthews HHJ
[2017] EWHC 2335 (Ch)
Bailii
England and Wales
Cited by:
Main Judgment – Vucicevic and Others v Aleksic and Others ChD 10-Oct-2017
Consequential judgment . .
Main Judgment – Vucicevic and Another v Aleksic and Others ChD 14-Aug-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.597464

Regina v Kelly; Regina v Lindsay: CACD 21 May 1998

Kelly was an artist allowed to draw anatomical specimens at the hospital, and Lindsay was a technician. They removed body parts from the hospital, and now appealed their convictions for theft.
Held: There is an exception to the traditional common law rule that ‘there is no property in a corpse’, namely, that once a human body or body part has undergone a process of skill by a person authorised to perform it, with the object of preserving for the purpose of medical or scientific examination or for the benefit of medical science, it becomes something quite different from an interred corpse. It thereby acquires a usefulness or value. It is capable of becoming property in the usual way, and can be stolen.’ The processes undertaken by a teaching hospital in which they preserved body parts created for them a sufficient proprietorial interest in the body parts to found a claim of theft against a defendant for removing them without their consent.
Rose LJ, Ognall J, Sullivan J
Times 21-May-1998, [1998] EWCA Crim 1578, [1997] 1 WLR 596, [1998] 3 All ER 741, [1999] QB 621, (2000) 51 BMLR 142
Bailii
Theft Act 1968 4 5
England and Wales
Cited by:
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.87047

Re Cutliffe’s Estate: CA 1959

References: [1959] P 6
Coram: Morris LJ, Hodson LJ
Ratio: In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English.
Held: The testator himself had not been responsible for the litigation. Morris LJ said: ‘Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised.’
This case cites:

  • Cited – Spiers v English ([1907] P 122)
    The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
  • Cited – Mitchell v Gard ((1863) 3 Sw and Tr 275)
    The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
    Held: Sir James Wilde said: ‘The basis of all rule on this . .

(This list may be incomplete)
This case is cited by:

  • Cited – Francis Hoff and others v Mary Atherton ChD ([2004] EWHC 2007 (Ch))
    A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
  • Cited – Kostic v Chaplin and others ChD (Bailii, [2007] EWHC 2909 (Ch), Times 11-Jan-08)
    The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
    Held: The costs of the trial itself . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 263527

Takamore v Clarke and others; 18 Dec 2012

References: SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733
Links: Nzlii
Coram: Elias CJ, Tipping, McGrath, William Young and Blanchard JJ
Ratio: Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and buried it in a family urupa. His partner successfully sued for orders allowing her to enter the urupa to disinter the body and re-inter it in Canterbury. The Tuhoe whanau was unsuccessful in all courts.
Held: (a) There is a common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased. (b) Where no executor has been appointed, is available or willing to act, the person who is the potential administrator in the sense of having priority to claim administration has the right to decide. (c) The rule becomes operative where there is no agreement or acquiescence on what is to be done, where arrangements have broken down, or where nothing is happening. The personal representative has the common law duty to attend to disposal and right to possession for that purpose. (d) Providing a rule for a decision-maker is practical and convenient, when differences arise as to the manner and disposal of the body. It assists in speedy resolution of differences. (e) The rule had been built on experience with regard to perceived social necessities and changing public policies. Personal representatives are required to take into account different cultural, religious, spiritual practices as well as the views of immediate and wider family. The views of those close to the deceased may arise from customary, cultural and religious practices, which they consider should be observed. There is no requirement to engage in consultation, which may be impractical. The representatives may have regard to the practicalities of burial or cremation without undue delay. They may also follow their personal views, provided they have considered all relevant factors and viewpoints. (f) This approach allows a range of values to be weighed without presuming in advance which cultural position will prevail, while also ensuring that decision-making will be prompt for reasons of public health and decency. (g) The power of the personal representative to ensure proper disposal continues after burial. (h) A person aggrieved at a decision of the personal representative or the failure of the representative to resolve matters may challenge it in the High Court, but any review process must be straightforward to provide a prompt decision. (i) The common law position was not displaced by whanau invoking tikanga as to burial.
However values and cultural precepts important to New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction according to the materiality in the particular case
This case cites:

  • Cited – In re JSB; Chief Executive, Ministry of Social Development v S and B (Nzlii, [2010] 2 NZLR 236, [2009] NZHC 2054)
    (New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .

(This list may be incomplete)
This case is cited by:

  • Cited – RE JS (Disposal of Body) FD (Bailii, [2016] EWHC 2859 (Fam), Judiciary)
    JS, a child of 14, anticpating 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 . .

(This list may be incomplete)
Jurisdiction: New Zealand

Last Update: 19-Nov-16
Ref: 571417

Birmingham v Renfrew; 11 Jun 1937

References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
This case cites:

  • Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
    The court was asked as to the validity and effect of a single joint will.
    Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
  • Cited – Re Oldham ([1925] Ch 75)
    The court was asked whether an agreement for mutual wills should be inferred. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
  • Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
    Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
    Nourse J said: ‘The principle of all these cases is that a court of . .
  • Cited – Goodchild v Goodchild ChD (Times 22-Dec-95, Ind Summary 08-Jan-96, [1996] 1 WLR 694)
    The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
    Held: The wills were in identical terms, but . .
  • Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD (Bailii, [2007] EWHC 1314 (Ch), [2007] 4 All ER 81)
    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 . .
  • Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
    The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
    Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
  • Cited – Healey v Brown ChD ([2002] 19 EG 147, Bailii, [2002] EWHC Ch 1405)
    The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
    Held: . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 183791

Burrows v Walls; 10 Mar 1855

References: [1855] EngR 294, (1855) 5 De G M & G 233, (1855) 43 ER 859
Links: Commonlii
Ratio: A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency,
This case is cited by:

(This list may be incomplete)

Last Update: 02-Aug-16
Ref: 292216

Saunders v Vautier; 5 Jun 1841

References: , [1841] EngR 765, (1841) Cr & Ph 240, (1841) 41 ER 482
Links: Commonlii
Ratio:
This case cites:

  • See Also – Saunders -v- Vautier ((1841) 4 Beav 115 affd Cr & Ph 240, Bailii, [1841] EWHC Ch J27, Bailii, [1841] EWHC Ch J82, (1841) Cr & Ph 240, Commonlii, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282)
    A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .

(This list may be incomplete)

Last Update: 09-Jul-16
Ref: 308943

Saunders v Vautier; 7 May 1841

References: (1841) 4 Beav 115 affd Cr & Ph 240, [1841] EWHC Ch J27, [1841] EWHC Ch J82, (1841) Cr & Ph 240, [1841] EngR 629, (1841) 4 Beav 115, (1841) 49 ER 282
Links: Bailii, Bailii, Commonlii
Coram: Lord Cottenham
Ratio:A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of the legal title in the property to him.
Held: The beneficiary was entitled to call for the property. The intention of the testator was that the beneficiary would ultimately take the property, but had merely sought to postpone the date on which this would happen. Beneficiaries who are sui juris and together entitled to the whole beneficial interest can put an end to the trust and direct the trustees to hand over the trust property as they may direct: ‘once something has been given to a person the court will not enforce any attempt to keep it out of his grasp until a later date.’
This case is cited by:

  • Cited – Tod -v- Judith Cobb Lady Barton, William Godfrey Lukes Barton, The Royal Society of Chemistry, In re Barton (Deceased) ChD (Bailii, [2002] EWHC 264 (Ch))
    The deceased was an English scientist who died domiciled in Texas. His beneficiaries in England executed a deed of variation, but this would not be recognised in the law of Texas. The will expressly stated it was subject to the laws of England. . .
  • Cited – Goulding and Goulding -v- James and Daniel CA (Times 07-Feb-97, Bailii, [1996] EWCA Civ 1156)
    The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
  • Cited – Hunt and Another -v- McLaren and others ChD (Bailii, [2006] EWHC 2386 (Ch))
    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 . .
  • Cited – Barbados Trust Company Ltd -v- Bank of Zambia and Another CA (Bailii, [2007] EWCA Civ 148)
    The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
  • Cited – Nelson -v- Greening & Sykes (Builders) Ltd CA (Bailii, [2007] EWCA Civ 1358, Times 22-Jan-08)
    The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
  • Cited – Clarence House Ltd -v- National Westminster Bank Plc ChD (Bailii, [2009] EWHC 77 (Ch))
    The claimant landlord alleged that the defendant tenant had transferred the lease under a ‘virtual assignment’ and that this was in breach of its lease.
    Held: The Abbey National case was not helpful. However, the arrangement was not a breach . .
  • Cited – Clarence House Ltd -v- National Westminster Bank Plc CA (Bailii, [2009] EWCA Civ 1311)
    The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
  • See Also – Saunders -v- Vautier (, Commonlii, [1841] EngR 765, (1841) Cr & Ph 240, (1841) 41 ER 482)
    . .

(This list may be incomplete)

Last Update: 07-Jul-16
Ref: 182790

Thomas v Thomas; 16 Dec 1864

References: [1864] EngR 865, (1864) 2 Dr & Sm 298, (1864) 62 ER 635
Links: Commonlii
Although the law presumes a person, who has not; been heard of for seven years, to be dead, yet (in the absence of special circumstances it draws no presumption from that fact as to the particular period when he died ; and the onus of proving death at any particular period of time within the seven years lies with the party alleging death at such particular time.
Last Update: 30-Jan-16 Ref: 282579

Thomas v Thomas; 11 Jul 1844

References: [1844] EngR 773, (1844) 14 Sim 234, (1844) 60 ER 348
Links: Commonlii
By a marriage settlement, the trustees were directed, after the decease of the survivor of the husband and wife, to convey, assign and deliver the settled property to such children or child of the marriage, or the lawful issue of such who should or might be living at the decease of the survivor, and who should attain twenty-one, to whom the husband and wife should jointly appoint, or to whom the survivor of them should appoint; and in default of appointment, to permit the property to be held and enjoyed by and equally between ail the children of the marriage and the survivors of them, and the lawful issue of such children or child so surviving the husband and wife and attaining twenty-one, such issue representing and taking the share that the parent would have taken if living.
Held, that the words in the clause creating the power, ”who shall or may be living at the decease of the survivor,’ referred to the children of the marriage, and not to their issue ; and, therefore, that clause exceeded the limits prescribed by law ; and, consequently, that an appointment made to the son of a daughter of the marriage was void.
Last Update: 12-Jan-16 Ref: 305365

Miles v Miles; 12 Jan 1866

References: [1866] EngR 53 (B), (1866) 35 Beav 191
Links: Commonlii
By his will, the testator gave ‘all that my messuage, partly freehold and partly leasehold,’ in Cannon Street, according to the nature and tenure thereof, respectively, in trust for his widow for life, or, as to the leaseholds, for so long as the term and interest in them should exist, with remainder over. After the date of his will, the reversion in fee of the leaseholds was purchased by, and conveyed to, the testator. Held, that the fee of the whole passed under the specific gift of ‘my messuage’ at C., and that the rent of the devise was descriptive.
Last Update: 12-Dec-15 Ref: 280764

Surtees v Parkin; 10 Jul 1854

References: [1854] EngR 736, (1854) 19 Beav 406, (1854) 52 ER 407
Links: Commonlii
A testator bequeathed legacies to A., B. and C., payable out of his personal estate, and he devised his real estates, subject to the payment of his debts, to D. and E. The personal estate being exhausted in payment of debts, the legatees were held entitled, on the principle of marshalling, to have recourse, for payment, to the real estate, to the prejudice of the devisees.
Last Update: 25-Oct-15 Ref: 293593

Bentley v Oldfield; 8 Nov 1854

References: [1854] EngR 859, (1854) 19 Beav 225, (1854) 52 ER 335
Links: Commonlii
Devise of ‘my property in houses, &c., at G.’ held (independently of Wills Act) to pass the fee.
A testator gave his real and personal estate to trustees, for the maintenance of his children until they attained twenty-one. As thay arrived at that age respectively, he directed it to be divided as follows: A legacy of 2100 to his son, and his property at G. (freehold), between his daughters.
Held: on a deficiency of personal estate, that the legacy was not charged on the real estate.
Observation on the doctrine of Roberts v Walker, 1 Russ & Myl 752.
A testator, in the first instance (as was held) devised freeholds to his three daughters equally, in fee, and he further willed the several shares to his three daughters as before mentioned, to have the interest for their use during their natural lives, and afterwards devised equally amongst their children, and, for want of children, to go to their husbands, if living.
Held: that the daughters took an estate for life, and in defauIt of children, their husbands, if living, took the fee.

M’Mohan v Burchell; 30 Apr 1845

References: [1845] EngR 724, (1845) 1 Holt Eq 186, (1845) 71 ER 716
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .

This case is cited by:

  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .
  • See Also – William M’Mahon And Wife -v- Burchell And Another ([1846] EngR 1180, Commonlii, (1846) 2 Ph 127, (1846) 41 ER 889)
    . .

Gurney v Gurney; 15 Mar 1855

References: (1855) 3 Drew 208, [1855] EngR 306, (1855) 61 ER 882
Links: Commonlii
The will gave first a legacy then divided the residue between two. The will was witnessed correctly, but the two residuary beneficiaries witnessed a later codicil revoking the prior legacy.
Held: Although the revocation did increase the residue, the original gifts of residue had been validly made.
Statutes: Wills Act 1937 15

Green v Briscoe; 9 May 2005

References: Lawtel 09-May-2005, [2005] All ER (D) 96
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in solemn form. One member of the family had acknowledged service of the action and had indicated that he wanted to be satisfied that the will had been properly executed but did not intend to put forward any positive case.
Held: The action was dismissed, but the court denied permission to the defendant to discontinue the counterclaim as against the family member, because a serious issue had been raised as to the validity of the will. The defendant executor was required to continue to seek an order for a grant of probate in solemn form.
This case is cited by:

  • See Also – Briscoe -v- Green ChD (Bailii, [2006] EWHC 2116 (Ch))
    . .
  • Cited – Wylde -v- Culver ChD (Bailii, [2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345)
    The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
    Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions . .

Bolton v Powell, Howard v Earle; 11 Mar 1852

References: [1852] EngR 352, (1852) 2 De G M & G 1, (1852) 42 ER 771
Links: Commonlii
An administrator of an intestate died in 1817 indebted to a large amount in respect of his receipts as administrator, but leaving sufficient personal estate to pay this amount, and also leaving freehold estates. In the same year a suit was instituted for the administration of his personal estate, and in 1832, it appeared from the report in that suit, that his personal estate had been misapplied, and that his executor had become bankrupt. Thereupon, and in the same year (1832), an administratrix de bonis non of the intestate instituted a suit against the administrator’s heir and the sureties, in the usual administration bond, and against the representatives of the Archbishop (who had died), praying to have the benefit of the bond, and to charge by means of the administrator’s freehold estates. No decree was made in this suit, the Plaintiff having married in 1838, and having died in 1847, without the suit having ever been revived. In 1848 another of the next of kin, who had been a Defendant to the suit of 1833, took out administration de bonis non of the intestate, and filed a bill of revivor and supplement, claiming to have the benefit of the suit of 1832. Held, that the suit of 1833 must be considered as having been abandoned, and that the suit of 1848 must be considered an original suit, and as such barred by length of time and laches.

Egerton v Lord Brownlow; 20 Aug 1851

References: [1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180
Links: Commonlii
John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.
This case is cited by:

  • Appeal from – Egerton -v- Earl of Brownlow HL ([1853] 4 HLC 484, [1853] 4 HLC 1, [1853] EngR 885, Commonlii, (1853) 10 ER 359)
    The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
    Held: Public policy ‘has been confounded with what may be called . .

Butlin v Barry; 5 Sep 1837

References: , [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215
Links: Commonlii
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
This case cites:

  • See Also – Barry -v- Butlin (Bailii, [1836] UKPC 9, [1838] 2 Moo PCC 480)
    The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

This case is cited by:

  • Appeal from – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Malone of Rathcaslin In The County Of Westmeath v Malone Of Coburg Place In The City Of Dublin, O’Connor, Tuite, Ardill, O’Connor, Thomas Richard Rooper, John Conroy Browne, L’Estrange, L’Estrange,; 27 Jun 1841

References: [1841] EngR 890, (1841) West 637, (1841) 9 ER 627
Links: Commonlii
JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.

Knox v Wells; 22 Dec 1864

References: [1864] EngR 882, (1864) 2 H & M 674, (1864) 71 ER 626
Links: Commonlii
ER A testator devised Blackacre to trustees upou trust out of the rents and profits to pay an annuity to J and A, his wife, jointly, and a similar annuity to the survivor, and upon trust to accumulate the residue for the benefit of the children of J and divide the same among such children when the youngest attained 30, ‘and if any of such children should die under 0 leaving issue such issue were to take their parent’s share. Held, that all the children who survived, took vested interests.

Harwood v Fisher; 23 Dec 1834

References: [1834] EngR 1176, (1834) 1 Y & C Ex 110, (1834) 160 ER 46
Links: Commonlii
Where the first husband of a woman entitled to a legacy of 600l, chargeable, in default of personalty, on the testator’s real estate, verbally agreed with the three devisees of the real estate to sell the legacy to them for 200l a piece, but received the consideration from one only of the devisees, taking interest on the 400l, due from the two others. Held, that to the extent to 400l. this was not a reduction of the legacy into possession, and that to a suit instituted by the woman and her second husband to recover what was due on the legacy, the representatives of the first husband were not necessary parties. Where facts are stated in the answer which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the Court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts.

Egerton v Jones; 16 Mar 1830

References: [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051
Links: Commonlii
An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my marriage articles, bearing date, &e., in case of failure of issue of my body by my said wife, I give and devise the same,’ &e. He then limited the estate to his brothers in succession, and to their respective first and other sons in tail male. The Court was of opinion that the devise was good.
This case is cited by:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B))
    Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .
  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266)
    An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .

Smith v Brooksbank; 25 Jun 1834

References: , [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)
Links: Commonlii
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.
This case is cited by:

  • See Also – Brooksbank -v- Smith (, Commonlii, [1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B))
    In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
  • See Also – Brooksbank And Another -v- Smith (, Commonlii, [1836] EngR 446, (1836) 2 Y & C Ex 59, (1836) 160 ER 311)
    The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .

Overend v Gurney; 25 Jul 1834

References: , [1834] EngR 941, (1834) 7 Sim 128, (1834) 58 ER 785
Links: Commonlii
The testator gave real property and a sum of stock to A for her life, and after her death to his brother absolutely: and he gave legacies, which he directed to be paid as soon as convenient after hie death, to his nephews and nieces, and the residue of his property to his brother absolutely. The brother having died, the testator, by a codicil reciting that fact, and that, thereby, the devises and bequests to his brother had lapsed, gave an annuity to his brother’s widow, and directed his trustees to pay the income of the residue of his personal estate to A. for life, and gave to her all his real estates for life, and, after her death, to his trustees in trust to sell, and the proceeds to fall into his personal estate : he then gave £10,000 to each of his nieces, in addition to the legacies given to them by the will, and directed that that sum for each of them should be held by his trustees for their separate use : and he gave all the clear residue of his estate (after providing for the before-mentionedlegacies, and also those given by his will) to his nephews. Held, that the legacies given to the nieces by the codicil were not payable till after A’s death.

Kane v Reynolds; 25 Nov 1854

References: [1854] EngR 953, (1854) 4 De G M & G 565, (1854) 43 ER 628
Links: Commonlii
The solicitor for the affairs of the Treasury, as nominee of the Crown, having taken out letters of administration of the goods of an intestate on the assumption that he had died without next of kin, was held not entitled to the costs of a suit instituted by a person rightfully claiming as next of kin.

The Attorney General v Price; 26 Nov 1810

References: [1810] EngR 575, (1810) 17 Ves Jun 371, (1810) 34 ER 143
Links: Commonlii
Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling within the County of B. £20 by the year. This is in the nature of a charitable bequest ; and, the Will being made in 1581, was sustained; and inquiries directed as to the poor relations dwelling within the county of B.
This case is cited by:

  • Cited – Scarisbrick’s Will Trusts, In re ChD ([1950] 1 All ER 143, [1950] Ch 226)
    The court considered whether a trust was charitable.
    Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was . .

William M’Mahon And Wife v Burchell And Another; 4 Dec 1846

References: [1846] EngR 1180, (1846) 2 Ph 127, (1846) 41 ER 889
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .

M’Mohon v Burchell; 5 Jun 1846

References: [1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

This case is cited by:

Earle v Bellingham; 24 Jul 1857

References: (1857) 24 Beav 448, [1857] EngR 795 (B), (1857) 24 Beav 445
Links: Commonlii
The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant.
This case is cited by:

  • Cited – Hornsey Local Board -v- Monarch Investment Building Society CA ([1889] 24 QBD 1)
    The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
  • Cited – Gotham -v- Doodes CA (Bailii, [2006] EWCA Civ 1080, Times 14-Aug-06, [2007] 1 WLR 86)
    The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .

Willeter v Dobie; 23 Jun 1856

References: [1856] EngR 706, (1856) 2 K & J 647, (1856) 69 ER 942
Links: Commonlii
A married woman, by her will, in exercise of a power of appointment over trust moneys, made several bequests, and ‘after payment of her just debts, funeral and testamentary expenses, and the expenses attending the execution of her will, appointed’ the residue of the trust moneys among her nieces.
Held: The charge of funeral expenses was not contingent upon her surviving her husband, and that her husband surviving was entitled to repayment, out of the trust moneys, of money paid by him in respect of such expenses.

Stephen Lazar And His Wife Thamar Lazar v Colla Ragava Chitty; 3 Dec 1838

References: , [1838] EngR 1035, (1838) 2 Moo Ind App 84, (1838) 18 ER 233, [1838] UKPC 21
Links: Commonlii, Bailii
(India) Legacy of 12,000 star pagodas reserved by a Testator from his estate, and devised in favour of his Great-grand-daughter, having, in pursuance of the directions contained in the Will been put in strict settlement by the Executors, and subsequently secured by a mortgage of the real estate of the Testator to the Trustee of the settlement: held to be an equitable charge upon the whole of the real estate of the Testator, and there being no evidence of the payment off of such charge, the sale of a portion by the Sheriff of Madras, can under a writ of execution, declared to be invalid.

Bosch v Perpetual Trustee Co: 1938

References: [1938] AC 463
If a Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, by leaving the child in straitened financial circumstances, the Court must ensure that adequate provision is made for the child out of the estate, having regard to his need for maintenance and support.
This case is cited by:

  • Cited – Goodchild and Another -v- Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .

(This list may be incomplete)
Last Update: 19-Nov-15 Ref: 214598

Brooke v Garrod; 20 Jul 1857

References: [1857] EngR 783, (1857) 3 K & J 608, (1857) 69 ER 1252
Links: Commonlii
This case cites:

  • See Also – Brooke -v- Garrod ((1857) 3 K & J 608, (1857) 2 De G & J 62, [1857] EngR 4 (B), Commonlii)
    The testator directed his trustees to offer all his real estate to his brother at the price of £2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should not, . .

Cobbett v Ludlam, Executor of Oldfield; 26 Nov 1855

References: [1855] EngR 839, (1855) 11 Exch 446, (1855) 156 ER 906
Links: Commonlii
O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books
Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff’s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued.
Statutes: Common Law Procedure Act 1852 226

Saltmarsh v Barrett; 9 Jun 1862

References: [1862] EngR 779, (1862) 31 Beav 349, (1862) 54 ER 1173
Links: Commonlii
An executor, under a bona fide belief that on the true construction of the will they were entitled thereto, sold out stock, retained one-third and paid two-thirds to the co-executors. It having been declared in the suit that the next of kin were entitled to this fund, and that the executor was bound to restore it : Held, that he was only liable to pay interest on the one-third retained by himself.
This case cites:

  • See Also – Saltmarsh -v- Barrett CA ([1861] EngR 521, Commonlii, (1861) 29 Beav 474, (1861) 54 ER 711)
    A testator gave legacies of nineteen guineas to each of his executors, and he bequesthed his residue to the m ‘absolutely’, charged with certain legacies. He also charged them to deduct their costs, charges and expenses out of any part of his . .

The Attorney General v John Hollingworth; 30 May 1857

References: [1857] EngR 577, (1857) 2 H & N 416, (1857) 157 ER 172
Links: Commonlii
By agreemerit made in 1794, 80001. stock was transferred by O. to H, upon the terms that H should repay the money produced by the sale of it or replace the stock at the option of O, and in the mean time pay interest at the rate of 5 per cent., the loan was secured by bond, mortgage, and a deed of covenant. O. and H being dead, E. O being the legatee ancl heiress, but not the personal representative of O., and J H. being the devisee of H , J. H. applied to E O. to assist him to raise moNey, which E. O. agreed to do on having a security for the replacement of the stock. E. O. accordingly assigned the bond mortgage, and deed of covenant of 1794, to H. and P, by way of mortgage, to secure an advance to J. H., and in consideration thereof, J. H, iri 1842, by iindenture, conveyed to E. O. the premises comprised iri the original mortgage, together with other lands, by way of mortgage, with a proviso and covenant to secure the transfer to E O. of 80001 stock E O died, and by her will forgave the mortgage debt, of 1842 to J H. Held, that the mortgage and covenant of 1842 were not so connected with the illegal agreement of 1794 as to be usurious and void, and that therefore legacy duty was payable on the bequest
This case is cited by:

  • Cited – The Commissioner of Stamp Duties -v- Bone and Others PC ([1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, Bailii, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145)
    (Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the . .

Sibthorp v Moxton; 10 Nov 1747

References: [1747] EngR 193, (1747) 1 Ves Sen 49, (1747) 27 ER 883 (B)
Links: Commonlii
A woman by will forgives a bond-debt to her son-in-law, and desires her executor to deliver up the bond to be cancelled ; this held not to be lapsed by his dying before the testatrix.
This case is cited by:

  • Cited – The Commissioner of Stamp Duties -v- Bone and Others PC ([1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, Bailii, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145)
    (Australia) A debt can only be released and extinguished by an agreement for valuable consideration or an instrument of release under seal. Where a testator or testratrix appoints a debtor as executor under a will any cause of action against the . .

Swaffield v Orton; 2 Jun 1847

References: [1847] EngR 576, (1847) 1 De G & Sm 326, (1847) 63 ER 1088
Links: Commonlii
A testator, after bequeathing to his daughter (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to and to be equally divided between his grandson and granddaughter (by name) as tenants in common ; but in case of the death of the granddaughter, under twenty-one and unmarried, in the lifetime of the grandson, or in case of the death of the grandson in the lifetime of the granddaughter, under twenty-one, he bequeathed the whole to the survivor ; and, after directing payment, during the minority of the grandchildren, for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the principal of the share of his grandchildren in the residue, and directed that his grandchildren respectively should not be entitled to receive his or her share, or the accumulations, until after the death of their mother (the annuitant). The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, when she became entitled to the absolute and immediate possession of any part of the residuary estate, the same and all accumulations should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the granddaughter, during her mother’s lifetime, for a transfer of the fund : Held, that the direction to accumulate in the will was precarious and ineffectual, and was not rendered otherwise by the settlement, and that the granddaughter’s moiety became capital at her marriage, and that the accumulations since that period belonged to her for her separate use.

Wilson v Moore; 22 Mar 1834

References: , [1834] EngR 607, (1834) 1 My & K 337, (1834) 39 ER 709
Links: Commonlii
Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of their correspondent, were held to be responsible for the fund so applied, to general pecuniary legatees under the will of the tesator.
Affirmed upon appeal.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Scarlett v Lord Abinger; 4 Mar 1865

References: [1865] EngR 292, (1865) 34 Beav 338, (1865) 55 ER 665
Links: Commonlii
Property was, by will, limited to the Defendant, on condition of his settling some Scotch estates within a limited time on trusts, the validity and effect of which were doubtful. The Defendant settled the estates within the time, in general terms, on the persons on whose behalf the condition was imposed. Held, that this was a sufficient compliance with the condition.

Tempest v Lord Camoys; 18 Jan 1866

References: [1866] EngR 61, (1866) 35 Beav 201, (1866) 55 ER 872
Links: Commonlii
To a bill for the administration of real and personal estate, and for the appointment of a receiver and a new trustee, a plea in bar, by the alleged executors, that they had been prevented proving by the Plaintiff’s entering a caveat in the Court of Probate, was overruled.
This case is cited by:

  • Appeal from – Tempest -v- Lord Camoys CA ((1882) 21 ChD 571)
    Jessel MR held that: ‘It is settled law that when a testator has given a pure discretion to trustees as to the exercise of a power, the court does not enforce the exercise of the power against the wish of the trustees, but it does prevent them from . .

MacMahon v Burchell; 20 Apr 1843

References: [1843] EngR 526, (1843) 3 Hare 97, (1843) 67 ER 312
Links: Commonlii
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix to the debtor; but not as against a legacy bequeathed by the testatrix to the wife of the debtor.
This case is cited by:

Barry v Butlin; 22 Jun 1836

References: [1836] UKPC 9, [1838] 2 Moo PCC 480
Links: Bailii
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
This case is cited by:

  • See Also – Butlin -v- Barry (, Commonlii, [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215)
    (Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
  • See Also – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Midland Counties Railway Company v Oswin; 12 Feb 1844

References: [1844] EngR 251, (1844) 1 Coll 74, (1844) 63 ER 327
Links: Commonlii
A railway company having, under their Act of Parliament, power to contract with incapacitated persons for the purchase of lands, and a right, upon payment of the purchase-money into the bank, to the fee-simple of the purchased lands, contracted with an incapacitated person, who died before the purchase-money was paid. Held, that the title of the company could not be completed without the assistance of a Court of Equity.
A bequest of ”money, goods, chattels, estates and effects’ held to pass real estate.
In the absence of special clauses for that purpose the effect of a Railway Act is not to alter the course of devolution of property without the consent of the owner ; and therefore if a company, by virtue of their Act, contract with an incapacitated person for the purchase of lands, the purchase-money is to be considered as real and not as personal estate.

Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13 Dec 1871

References: [1871] EngR 57, (1871) 14 Moo Ind App 377, (1871) 20 ER 828
Links: Commonlii
A Mohamedan Widow, whose husband died without issue, having been put in possession of her husband’s estate by the Collectorate Courts as a co-heir and for her deferred dower, has a lien, as a Creditor, on the estate, and is entitled to retain possession until her dower is satisfied. 40,000. Held, in the circumstances of the status and means of the deceased Husband, and the custom of Sheikh families in Behar, not an excessive amount for deferred dower.

Lester v Garland; 8 Aug 1808

References: (1808) 15 Ves Jun 248, 33 ER 748, [1808] EngR 326, (1808) 15 Ves Jun 248, (1808) 33 ER 748
Links: Commonlii
Bequest of residue in trust in case A shall within six months after testator’s decease give security not to marry B then and not otherwise to pay to the children of A; with a proviso to go over if she shall refuse or neglect to give such security. A condition precedent. Six months exclusive of day of death – security given on six months anniversary.
Held: There was no general rule in computing time from an act or event that the day is inclusive or exclusive – depends on the reason of the thing according to circumstances.
This case is cited by:

  • Cited – Trafford Metropolitan Borough Council -v- Total Fitness UK Ltd CA (Gazette 07-Nov-02, Bailii, [2002] EWCA Civ 1513)
    The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
  • Cited – Dodds -v- Walker HL ([1981] 1 WLR 1027, [1981] 2 All ER 609)
    The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
    Held: Dismissing the tenant’s appeal, the House found that the court . .

Boyse v Rossborough; 7 Nov 1854

References: [1854] EngR 853, (1854) 1 K & J 124, (1854) 69 ER 396
Links: Commonlii
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court.
The right of the heir and that of a devisee to this issue, distinguished ; the former is absolute, the latter is in the discretion of the Court.
Issue devisavit vel non granted to a devisee after a decree in Ireland against the will and an order refusing a new trial ; and although subsequently an attesting witness, who had been examined in Ireland, and whose cross-examination was deposed to have been very effective in support of the heirs’ case, had died ; the devisee having appealed to the House of Lords, and not appearing to be chargeable with delay, either in the appeal or in this suit.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .

This case is cited by:

  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    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 . .

Freeman v Butler; 16 Nov 1863

References: [1863] EngR 954 (A), (1863) 33 Beav 289
Links: Commonlii
The defendant, the trustee and executor, was also a mortgagee on part of the estate. Upon a bill for the administration of the estate, Held that the Defendant was not bound to produce the mortgage and title-deeds, but that he must produce all, accounts in his possession relating to the mortgage.

In the Estate of Fuld, dec’d (No 3): ChD 1968

References: [1968] 1 P 675
Coram: Scarman J
The onus of proof on the balance of probabilities as to whether the Will was duly executed and whether the Deceased knew and approved the contents of the Will is upon the Defendant. The legal requirement upon the Defendant to establish these facts is a safeguard in will cases against fraud upon the dead. The weight of the burden will vary with the weight of the suspicion to be dispelled; but in a matter as vital as this the law wears no cramping straight jacket. The Court’s vigilance is called whenever circumstances reasonably excite suspicion.
Scarman J said: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
This case is cited by:

  • Cited – Fuller -v- Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
    The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
    Held: The onus on the propounder of a will to show that it . .
  • Cited – Sherrington -v- Sherrington ChD ([2004] EWHC 1613 (Ch), Bailii)
    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. . .
  • Cited – Gill -v- Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
    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 . .
  • Cited – Gill -v- Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
    The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
    Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Watson v Mary Foxon; 13 Nov 1801

References: [1801] EngR 456, (1801) 2 East 36, (1801) 102 ER 281
Links: Commonlii
Under a limitation (after estates for life to A. and B.) of ‘all and every the said premises to all and every the younger children of 3. begotten or to be begotten, if more than one equally to be divided amongst them, and to the heirs of their respective body and bodies as tenants in common, &c. and if only one child, then to such only child and to the heirs of his or her body issuing; and for want of such issue’ (‘devise of) ‘the said premises to C. N. &c.” (with several limitations over). ” And for want of such issue,’ then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of B. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective in such devise.

Boyse v Rossborough; 11 Feb 1854

References: [1854] EngR 252, (1854) 3 De G M & G 817, (1854) 43 ER 321
Links: Commonlii
Coram: Lord Carnworth LC
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    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 . .

Wing v Angrave, Tulley, And Others; 29 Feb 1860

References: [1860] EngR 525, (1860) 8 HLC 183, (1860) 11 ER 397, (1860) 8 HL Cas 183
Links: Commonlii
Coram: Lord Chelmsford
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to embrace such an extraordinary contingency. Can the language which she has employed be made to include such an intention? If it cannot, then we are not at liberty to go out of the will to bring into it something which is not to be found there. The testatrix says, I give to my husband certain property, and in case he should die in my lifetime, then to the appellant [W. W.]. She clearly intended that the appellant should not have her property if her husband survived her, for on that event it was to go to him. The appellant can only be entitled in case the husband fails to take by survivorship. If the husband survived, the appellant’s bequest never came into existence. But he cannot show that the husband did not survive, and therefore he fails altogether in establishing the foundation upon which alone his right can be built.’
This case is cited by:

Boyse v Rossborough; 5 Dec 1853

References: [1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31
Links: Commonlii
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee.
Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Brandy, 7 Bro. P. C. 437, But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.
The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding
term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction wouid be granted against him if, after such decree, he should attempt to impeach the will.
The origin of this jurisdiction is obscure ; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir ; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.
Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.
But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.
An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.
That the legal estate has been conveyed by the Plaintiff to his own trustee since then this cause came on to be heard upon a general demurrer for want of equity.
This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    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 . .

Button v Button; 11 Jan 1840

References: [1840] EngR 301, (1840) 2 Beav 256, (1840) 48 ER 1178
Links: Commonlii
A testator gave one estate to James, upon trust to pay to testator’s wife £18 a year for life, and after her decease he gave the estate to Thomas. The testator also gave a second estate to James, upon trust to pay testator’s wife £28 a year for life, and after her decease he gave this estate absolutely to James ; and he declared, that if James should neglect or refuse to pay the annuities from either of the said estates when they became due, that his wife should have power of selling the estates, and to appropriate the money to her own use, the rents being insufficient to pay the annuities: Held, that the widow had a right to sell unless James paid the full amount of the annuities, but that he was not personally bound to pay them.