References: [2013] EWCOP 684
Links: Bailii
Coram: His Honour Judge Behrens sitting as a Judge of the Court of Protection in Leeds
Ratio: Application to make statutory will.
Jurisdiction: England and Wales

Last Update: 10 September 2019
Ref: 524696

The post NT v FS and Others: CoP 26 Mar 2013 appeared first on swarb.co.uk.

References: [2012] EWHC 2273 (Ch)
Links: Bailii
Coram: Henderson J
Ratio:
Jurisdiction: England and Wales

Last Update: 10 September 2019
Ref: 569049

The post Cushway v and Another v Harris: ChD 16 May 2012 appeared first on swarb.co.uk.

References: [2015] EWCA Civ 826
Links: Bailii
Ratio:
Statutes: Administration of Estates Act 1925 46 47
Jurisdiction: England and Wales

Last Update: 11 September 2019
Ref: 558704

The post Crick v Crick and Others: CA 7 May 2015 appeared first on swarb.co.uk.

References: 3545/04 (Translation), [2009] ECHR 795
Links: Bailii
Coram: Peer Lorenzen, P
Ratio: The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a marriage, but excluded children born before 1 July 1949, and had thus reached the age of majority as it came into force.
Held: The discriminatory provision was incompatible with the Convention. The aim of the legislation, distinguishing between children born before July 1949 and those born later, may have been legitimate, and the court even recognised the political and other difficulties which would have been involved if the distinction had been removed. However, this was not enough: ‘The Court considers, in particular, that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, the aspect of protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage.’
The Court then considered whether the means were proportionate, saying: ‘As to whether the means employed were proportionate to the aim pursued, a further three considerations appear decisive to the Court in the present case. First, the applicant’s father had recognized her after her birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German states. He had neither a wife nor any direct descendants, but simply heirs of the third order whom he apparently did not know. The aspect of protecting these distant relatives’ ‘legitimate expectations’ cannot therefore come into play’.
The other two considerations were specific to German legislation in the context of the reunification, and they do not assist in the present case.
Statutes: European Convention on Human Rights
This case is cited by:

• See Also – Brauer v Germany ECHR (3545/04, Bailii, [2010] ECHR 74)
  Just satisfaction – friendly settlement . .
• Cited – Re Erskine 1948 Trust ChD (Bailii, [2012] EWHC 732 (Ch), [2012] 3 All ER 532, [2012] 3 FCR 114, [2012] WTLR 953, [2013] Ch 135, [2012] Fam Law 809, 14 ITELR 890, [2012] WLR(D) 104, [2012] 3 WLR 913, [2012] 2 FLR 725)
  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 . .

(This list may be incomplete)

Last Update: 11 September 2019
Ref: 346628

The post Brauer v Germany: ECHR 28 May 2009 appeared first on swarb.co.uk.

References: [1999] 2 QB 621
Coram: Rose LJ
Ratio: Robbers who stole and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. The court considered the issue of ownership of a corpse: ‘We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights.’ However parts of a corpse are capable of being property: ‘To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority [1997] 1WLR 596, 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose.’
Jurisdiction: England and Wales
This case cites:

• Cited – Regina v Sharpe CCCR ([1857] Dears and B 160, Commonlii)
  The defendant was charged not with theft of a corpse, but of its removal from a grave: ‘Our law recognises no property in a corpse, and the protection of the grave at common law as contradistinguished from ecclesiastic protection to consecrated . .

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

• Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD ([2004] EWHC 644 (QB), Bailii, Times 12-Apr-04, (2004) 77 BMLR 145, [2004] 2 FLR 365, [2004] 3 FCR 324, [2004] Fam Law 501, [2005] 2 WLR 358, [2005] Lloyd’s Rep Med 1, [2005] QB 50)
  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.
  

(This list may be incomplete)

Last Update: 13 September 2019
Ref: 195005

The post Regina v Kelly: 1999 appeared first on swarb.co.uk.

References: [2008] WTLR 1675, [2008] Fam Law 844, [2008] EWHC 810 (Ch), [2009] 1 FLR 747, [2009] 2 FCR 631
Links: Bailii
Coram: Behrens J
Ratio: The claimant sought provision under the 1975 Act from the estate of his deceased wife.
Statutes: Inheritance (Provision For Family and Dependants) Act 1975
This case cites:

• Cited – Re Besterman, decd CA ([1984] Ch 458)
  In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
• Cited – Moody v Stevenson CA ([1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-91, Times 30-Jul-91)
  The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
• Cited – Krubert, Re CA (Gazette 17-Jul-96, Times 16-Jul-96, [1997] Ch 96, Bailii, [1996] EWCA Civ 1346)
  The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
  Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .

(This list may be incomplete)

Last Update: 13 September 2019
Ref: 346875

The post Barron v Woodhead and Another: ChD 25 Jun 2008 appeared first on swarb.co.uk.

References: [1978] UKPC 33
Links: Bailii
Ratio: (Fiji)
Jurisdiction: England and Wales

Last Update: 16 September 2019
Ref: 443362

The post Muni Deo Bidesi and Others v The Public Trustee of Fiji: PC 11 Dec 1978 appeared first on swarb.co.uk.

References: [2019] EWHC 2183 (Ch)
Links: Bailii
Coram: Rose DBE LJ
Ratio: claim for malicious prosecution and abuse of process
Jurisdiction: England and Wales

Last Update: 18 September 2019
Ref: 640894

The post Willers v Joyce and Others: ChD 8 Aug 2019 appeared first on swarb.co.uk.

References: [2009] EWHC 1945 (Ch), [2009] WTLR 1387
Links: Bailii
Coram: Lewison J
Ratio: 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 possible to lose testamentary capacity and yet retain capacity to know and approve the contents of a will. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. The testator had capacity when he gave instructions for the will, but had lost capacity at the date when he executed the will. The principle in Parker v Fellgate would lead to pronouncement in favour of the will, and the instructions had been given direct to the solicitor. There had however been a long time between the instuctions and the execution, and the court had to be satisfied that the instructions continued to represent the testator’s wishes. The requirements of using open questions in Buckenham, applied on the taking of instructions, not at the stage of execution.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case cites:

• Cited – Banks v Goodfellow QBD ((1870) LR 5 QB 549)
  The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
• Cited – Parker and Another v Felgate and Tilly ((1883) 8 PD 171)
  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 – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another ([1952] Times LR 925)
  The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was . .
• Cited – Zorbas v Sidiropoulous (No 2) ([2009] NSWCA 197, Austlii)
  Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had . .
• Cited – Battan Singh v Amirchand PC ([1948] AC 161)
  (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 . .
• Cited – Hoff and others v Atherton CA (Bailii, [2004] EWCA Civ 1554, [2005] WTLR 99)
  Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
• Cited – Clancy v Clancy ChD (Times 09-Sep-03, Gazette 02-Oct-03, [2003] WTLR 1097)
  Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
• Cited – Buckenham v Dickinson ChD ([1997] CLY 4733, [2000] WTLR 1083)
  The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .

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

• Main judgment – Perrins v Holland and Others ChD (Bailii, [2009] EWHC 2558 (Ch))
  . .
• Appeal From – Perrins v Holland and Others; In re Perrins, deceased CA (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD, (2010) 13 ITELR 405, [2011] 2 WLR 1086)
  The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
• See Also – Perrins v Holland and Others CA (Bailii, [2010] EWCA Civ 1398)
  The court heard an appeal as to costs. . .

(This list may be incomplete)

Last Update: 18 September 2019
Ref: 368646

The post Perrins v Holland and Another: ChD 31 Jul 2009 appeared first on swarb.co.uk.

References: [2009] EWHC 1953 (Ch)
Links: Bailii
Coram: Norris J
Ratio: The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be counted a clerical error allowing amendment.
Held: The intended reference had clearly been to a male member of the family and on the evidence it had intended to refer to the claimant.
Statutes: Administration of Justice Act 1982 20
This case cites:

• Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC ([1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, Bailii, [1967] UKPC 23)
  (New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
• Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
  The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
• Cited – Greenough v Martin (Commonlii, [1824] EngR 70, (1824) 2 Add 239, (1824) 162 ER 281)
  A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected . .
• Cited – Re Ofner; Samuel v Ofner ([1909] 1 Ch 60)
  Amongst other legacies to various nieces and a nephew, the testator gave a legacy ‘to my grandnephew Robert Ofner’ of andpound;100 and to another ‘grandnephew Curt Ofner’ of andpound;100. However he had no such grandnephew or other relative of the . .

(This list may be incomplete)

Last Update: 18 September 2019
Ref: 368644

The post Parkinson v Fawdon: ChD 30 Jul 2009 appeared first on swarb.co.uk.

References: Gazette 17-Jul-1996, Times 16-Jul-1996, [1997] Ch 96, [1996] EWCA Civ 1346
Links: Bailii
Coram: Nourse LJ, Cazalet J
Ratio: The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on every application under it the court must ask itself two questions: first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive? Provision for deceased’s wife were to be read to follow the Act and not necessarily as would occur on a divorce.
As to the two cases of Besterman and Moody: ‘
There had been confusion arising from the conflict of approach taken in Re Bestermann and in Moody v Stevenson. The case of re Besterman was to be preferred. The Recorder had made an error of principle: ‘While I fully appreciate that the question what is reasonable provision is not to be determined exclusively by the financial needs of the applicant, especially when he or she is a surviving spouse, it is a consideration which must be taken into account. Looking at the matter in the round, I think that if the deceased had made reasonable provision for Mrs. Krubert out of his other resources, it would have been reasonable for him to have left his brother and sister the reversionary interest in the house; conversely, it would not have been unreasonable for him only to have left Mrs. Krubert a life interest in it. Accordingly, to award her an absolute interest in the house and all but andpound;14,000 of the other assets was in my judgment an error of principle on the recorder’s part . . Having considering the question afresh, I think there is indeed a conflict between the two decisions, if only one of emphasis. However conflict of emphasis can often cause problems at first instance for busy district and circuit judges. Moreover we have some anecdotal evidence that the approach adopted in Moody -v- Stevenson may indeed have caused confusion at that level, especially in the cases of small estates. I can understand that, if only because on a divorce there are two parties to be provided for, whereas on an application under the (inheritance legislation) there is only one. In my view Oliver LJ’s approach is preferable, being more in accordance with the intention of the Act when read as a whole. I think it should be adopted accordingly.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case cites:

• Cited – Davis v Davis CA ([1993] 1 FLR 54)
  The deceased had left his widow a life interest in his residuary estate, with power for his trustees to purchase a house for her occupation, which they had duly exercised. The essential question was whether, as the widow claimed, she should be . .
• Cited – Re Bunning, deceased; Bunning v Salmon ChD ([1984] 1 Ch 480, [1984] 3 WLR 265, [1984] 3 All ER 1)
  Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be 36,000 pounds. Yet on an application under the 1975 Act he awarded her 60,000 pounds. . .
• Preferred – Re Besterman, decd CA ([1984] Ch 458)
  In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
• Not preferred – Moody v Stevenson CA ([1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-91, Times 30-Jul-91)
  The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
• Cited – Jessop v Jessop CA ([1992] 1 FLR 591)
  The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
• Cited – Re Inns, Inns v Wallace ([1947] 2 All ER 308)
  . .

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

• Cited – Moorhead v Moorhead ChNI (Bailii, [2002] NICh 1)
  The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
• Cited – Barron v Woodhead and Another ChD ([2008] WTLR 1675, [2008] Fam Law 844, Bailii, [2008] EWHC 810 (Ch), [2009] 1 FLR 747, [2009] 2 FCR 631)
  The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .

(This list may be incomplete)

Last Update: 18 September 2019
Ref: 372642

The post Krubert, Re: CA 27 Jun 1996 appeared first on swarb.co.uk.

References: [2013] EWHC 684 (COP), [2013] EWCOP 684
Links: Bailii, Bailii
Coram: Behrens J
Ratio: An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The court must decide what is objectively in the patient’s best interests, and not what the patient might have chosen themselves. The Act sets out the steps and considerations to be followed and these must be applied. Having applied that stuctured approach, the court must then check subjectively whether overall the result was in the patient’s best interests. The significance of the several elements will differ from case to case, but the Act gives none precedence. The views and wishes of the patient are included in the list, but have no priority over other considerations, and again the significance will reflect that particular case.
In this case a will signed by the patient, but not witnessed was helpful, but not of ‘magnetic’ importance.
Orders accordingly.
Statutes: Mental Capacity Act 2005 1(5) 4(2) 4(6) 4(7) 16 18(1)
Jurisdiction: England and Wales
This case cites:

• Cited – In re P (Statutory Will) ChD (Bailii, [2009] EWHC 163 (Ch), [2010] EWHC 1592 (COP), [2010] Ch 33, Bailii, [2009] NPC 24, [2009] WTLR 651, [2009] LS Law Medical 264, [2009] 2 All ER 1198, [2010] 2 WLR 253)
  A request was made for a statutory will.
  Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring . .
• Cited – In re M; ITW v Z and Others (Statutory Will) FD (Bailii, [2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791, [2011] 1 WLR 344)
  The court considered a request for a statutory will under the 2005 Act.
  Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .
• Cited – Re G(TJ) ([2011] WTLR 231)
  Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift . .
• Cited – Re J(C) CoP ([2012] WTLR 121)
  Lush J doubted that a proper consideration when setting the terms for a statutory will under the 2005 Act, would be the desirability of the deceased being remembered for having ‘done the right thing’ in his will. . .

(This list may be incomplete)

Last Update: 19 September 2019
Ref: 472017

The post NT v FS and Others: CoP 26 Mar 2013 appeared first on swarb.co.uk.

References: [2011] ScotSC 37
Links: Bailii
Ratio:
Jurisdiction: Scotland

Last Update: 20 September 2019
Ref: 463487

The post Douglas and Others v Macandrew and Others: ScSf 29 Jul 2011 appeared first on swarb.co.uk.

References: [2009] EWHC 1524 (Ch)
Links: Bailii
Coram: Geraldine Andrews QC J
Ratio: The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his wife’s attack on him and to overreact.
Held: ‘it is not helpful to attach to these tragic events the labels used in the criminal courts to describe full or partial defences to murder. However, if this was not murder, an ordinary member of the public would no doubt regard what Mr Mack did as being so close to it as to make no difference in terms of his culpability. ‘ The murder was brutal, and it was not a case where the application of the rule would either confer an undeserved benefit to a third party, or leave the claimant in poverty. The application was refused.
Statutes: Forfeiture Act 1982
Jurisdiction: England and Wales
This case cites:

• Cited – Land v Land; In re Land, deceased ChD (Bailii, [2006] EWHC 2069 (Ch), [2007] 1 WLR 1009, [2006] WTLR 1447, [2007] 1 All ER 324)
  The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
• Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA (Gazette 24-Sep-97, Bailii, [1997] EWCA Civ 2167, [1997] 4 All ER 289, [1998] Ch 412, [1997] 3 WLR 1261, [1998] 1 FLR 157, [1998] Fam Law 139, [1997] 3 FCR 669)
  The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
  Held: The appeal was . .
• Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD ([1981] 1 QB 758, [1981] 1 All ER 769)
  The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
• Cited – In Re K (Deceased) CA ([1986] 1 Ch 180)
  The wife who had been subjected to years of abuse shot her violent husband dead in the course of an argument, when a loaded shotgun she had picked up and pointed at him as a threat to deter him from offering her further violence went off . .
• Cited – Re H (Deceased) ([1990] 1 FLR 441)
  The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
  Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .

(This list may be incomplete)

Last Update: 20 September 2019
Ref: 347453

The post Mack v Lockwood and Others: ChD 19 Jun 2009 appeared first on swarb.co.uk.

References: [1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, [1967] UKPC 23
Links: Bailii
Coram: Hodson, Guest, Donovan, Wilerforce LL, Sir Alfred North
Ratio: (New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. ‘In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation’ . . and ‘in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator’: Greenough v Martin (1824) 2 Add 239 at 243′.
Jurisdiction: Australia
This case cites:

• Cited – Verge v Somerville PC ([1924] AC 496)
  On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
  Held: Trusts for education and religion do . .
• Cited – Greenough v Martin (Commonlii, [1824] EngR 70, (1824) 2 Add 239, (1824) 162 ER 281)
  A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected . .
• Cited – Methuen v Methuen (Commonlii, [1817] EngR 585, (1817) 2 Phill 416, (1817) 161 ER 1186)
  Sir John Nicholl said: ‘In the court of probate the whole question is one of intention: the animus testandi and the animus recocandi are completely open to investigation.’ . .
• Approved – In re Hawksley’s Settlement; Black v Tidy ([1934] Ch 384)
  A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
  Held: Neither feature was sufficient to effect a complete revocation . .

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

• Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
  The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
• Cited – Parkinson v Fawdon ChD (Bailii, [2009] EWHC 1953 (Ch))
  The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be . .
• Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
  The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
• Cited – Marley v Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
  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 . .

(This list may be incomplete)

Last Update: 21 September 2019
Ref: 374776

The post Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited: PC 19 Oct 1967 appeared first on swarb.co.uk.

ayling_summersChD2009
References: [2009] WTLR 1657, [2010] 1 All ER 410, [2009] EWHC 3168 (Ch)
Links: Bailii
Coram: Peter Langan J
Ratio: Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want everything to go to Auntie Anne.’ and later ‘What I told you before still applies. If anything happens to me, if I snuff it, I want everything to go to Auntie Anne.’ It was submitted that the ability to make a privileged will was restricted to seamen on British registered ships.
Held: The oral will was upheld. The restrictive construction of the Act proposed was not accepted: ‘I am faced with four very ordinary words, ‘a mariner or seaman’, which are easily understood and which, on their plain meaning, apply to all mariners and seamen.’ There was no mention of national service in the section. The court had no doubt that the deceased was to be understood to be ‘at sea’ when the words were spoken, since all his actions at that time were as to his return to sea under orders. He was contemplating the voyage and preparing for it.
Statutes: Wills Act 1837 11, Wills (Soldiers and Sailors) Act 1918
This case cites:

• Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ ([1986] ECR 1607, [1987] ICR 110, C-170/84, R-170/84, Bailii, [1986] EUECJ R-170/84, [1984] IRLR 317)
  ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
• Cited – Re Stable, deceased. Dalrymple v Campbell ([1918] P 7)
  It is not necessary for the validity of a privileged (nuncupative) will that the testator knew that he was making a will: what is required is that he ‘intended deliberately to give expression to his wishes as to what should be done with his property . .
• Cited – In the Goods of Sarah Hale ([1915] 2 IR 362)
  The deceased was a typist employed by the Cunard Steamship Company. Her permanent assignment was as a typist on board the Lusitania but, when not working on the ship, she worked in the company’s offices in Liverpool. She made her will while working . .
• Cited – In The Goods Of Hugh Donaldson Donaldson, M D (, Commonlii, [1840] EngR 555, (1840) 2 Curt 386, (1840) 163 ER 448 (A))
  Sir Herbert Jenner said that: ‘The deceased must be considered to have been a surgeon in the East India Company’s service; his being in charge of recruits for royal regiments, which was no part of his regimental duty, would not constitute him a . .
• Cited – Re Beech ([1923] P 46)
  Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: ‘The contention is that if a will does not have the effect intended the testator cannot be said to have known and . .
• Cited – In the Goods of Newland, deceased ([1952] P 71)
  The judge upheld the nuncupative will of an apprentice in the merchant navy while on shore leave (which was, at longest, from 4 July to 1 August 1944) from the troopship on which he was employed. . .
• Cited – In the Goods of Wilson, Wilson v Coleclough ChD ([1952] P 92)
  The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April . .

(This list may be incomplete)

Last Update: 21 September 2019
Ref: 375618

The post Ayling v Summers and Others: ChD 14 Sep 2009 appeared first on swarb.co.uk.

References: [2002] EWHC 9008 (Costs)
Links: Bailii
Coram: Master Rodgers, Costs Judge
Ratio: The applicant challenged a solicitor’s bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court’s task is to assess a sum which is fair and reasonable.
Held: A rate above that generally charged by solicitors in the geographic area was justified where the practitioner was highly experienced and specialist. The claimant argued that a value element should no longer be paid. In view of the omnipresence of computer time recording systems, it is now wrong to charge on both a value element and a time element.
Statutes: Solicitors (Non Contentious Business) Remuneration Order 1994 3
Jurisdiction: England and Wales
This case cites:

• Cited – Jones and Another v Secretary of State for Wales and Another QBD (Times 03-Dec-96, [1997] 1 Costs LR 34)
  Specialist provincial solicitors’ firm’s hourly cost rates were not limited by local average rates. . .
• Appealed to – Jemma Trust Company Ltd v Peter D’Arcy Liptrott, John Forrester, Kippax Beaumont Lewis CA (Bailii, [2003] EWCA Civ 1476, Times 30-Oct-03)
  Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
  Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .

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

• Appeal from – Jemma Trust Company Ltd v Peter D’Arcy Liptrott, John Forrester, Kippax Beaumont Lewis CA (Bailii, [2003] EWCA Civ 1476, Times 30-Oct-03)
  Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
  Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .

(This list may be incomplete)

Last Update: 22 September 2019
Ref: 175484

The post Jemma Trust Company Ltd v Peter D’Arcy Liptrott Jo: SCCO 12 Sep 2002 appeared first on swarb.co.uk.

hmt_dovetonChd10
References: [2008] EWHC 2812 (Ch), [2009] BPIR 352
Links: Bailii
Coram: Sir Mark Herbert QC
Ratio: The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred substantial estate assets abroad. The defendant said that the burden of proving that the will was a fraud was higher than the balance of probabilities.
Held: Earlier authorities on the applicable standard of proof needed to be read in the light of more recent authority (particularly in re Doherty). Accordingly ‘the civil burden of proof applies to this case, and the seriousness of the allegations made against Mr Doveton and the consequences of a possible finding against him do not alter that. They affect my task in a different way, namely that they are extremely important factors which I must take fully into account in deciding, on the balance of probabilities, whether the Treasury Solicitor has made out its case.’
The executor’s case faced many real difficulties, and the court concluded that the will could not stand. The court made orders under the 1986 Act to set aside the transactions found by the judge to have been made in an attempt to avoid creditors.
Statutes: Insolvency Act 1986 423(1)
This case cites:

• Cited – Hornal v Neuberger Products Ltd CA ([1957] 1 QB 247, [1956] 3 All ER 970)
  The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
  Held: The standard was the balance of . .
• Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL (Independent 17-Jan-96, [1996] AC 563, [1996] 1 FLR 80, Bailii, [1995] UKHL 16, [1996] Fam Law 74, [1996] 1 FCR 509, [1996] 2 WLR 8, [1996] 1 All ER 1)
  Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
• Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
  There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
• Cited – Secretary of State for the Home Department v Rehman HL (House of Lords, Times 15-Oct-01, Bailii, Gazette 01-Nov-01, [2001] UKHL 47, [2003] 1 AC 153, 11 BHRC 413, [2002] ACD 6, [2001] 3 WLR 877, [2002] Imm AR 98, [2002] INLR 92, [2002] 1 All ER 122)
  The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .

(This list may be incomplete)

Last Update: 22 September 2019
Ref: 377224

The post The Solicitor for the Affairs of HM Treasury v Doveton and Another: ChD 13 Nov 2008 appeared first on swarb.co.uk.

References: [2009] EWHC 2558 (Ch)
Links: Bailii
Coram: Lewison J
Ratio:
Jurisdiction: England and Wales
This case cites:

• Main judgment – Perrins v Holland and Another ChD (Bailii, [2009] EWHC 1945 (Ch), [2009] WTLR 1387)
  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 . .

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

• Costs at First Instance – Perrins v Holland and Others; In re Perrins, deceased CA (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD, (2010) 13 ITELR 405, [2011] 2 WLR 1086)
  The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
• Appeal from – Perrins v Holland and Others; In re Perrins, deceased CA (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD, (2010) 13 ITELR 405, [2011] 2 WLR 1086)
  The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
• See Also – Perrins v Holland and Others CA (Bailii, [2010] EWCA Civ 1398)
  The court heard an appeal as to costs. . .

(This list may be incomplete)

Last Update: 22 September 2019
Ref: 377217

The post Perrins v Holland and Others: ChD 21 Oct 2009 appeared first on swarb.co.uk.

References: [2008] EWHC 1326 (Ch)
Links: Bailii
Coram: Norris J
Ratio: The daughter of the deceased challenged the will, saying that her mother had not known and approved the contents of her will which left the entire contents of her estate to charity.

Last Update: 22 September 2019
Ref: 377222

The post Gill v Woodall, Lonsdale and The Royal Society for the Prevention and Cruelty To Animals: ChD 22 May 2008 appeared first on swarb.co.uk.