References: [2003] WTLR 687, [2003] EWHC 796 (Ch)
Links: Bailii
Coram: Patten J
Ratio: The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to preserve certain classes of offender from capital punishment for killings carried out by reason of diminished responsibility or under provocation. But the 1982 Act recognises in terms that cases of manslaughter do not qualify for relief for that reason alone. The case must be one in which an exception to the rule of public policy requires to be made in order to do justice. Had Parliament intended to disapply the forfeiture rule in all cases of manslaughter involving diminished responsibility, it would have enacted the 1982 Act in a very different form. In the present case Mr M. was killed by someone he had befriended and to whom he had only ever been generous. He was rewarded by violence and abuse, both physical and financial. Mr D.’s mental condition may have robbed him of a measure of responsibility for the actual killing, but it does not remove from him the responsibility for allowing that situation ever to arise.’
Statutes: Forfeiture Act 1982 1(1)
This case cites:

• Cited – In the Estate of Cunigunda Crippen deceased ([1911] P 108)
  Dr Crippen notoriously survived his wife. Between the date of his conviction for her murder and the carrying out of the death sentence passed on him, Dr Crippen made a will naming Ethel Le Neve as the sole executrix and universal beneficiary. Ethel . .
• Cited – In the Estate of Julian Bernard Hall deceased; In re RH CA ([1914] P 1)
  The rule against an offender benefitting from his crime applies not just in cases involving a conviction for murder.
  Held: The court rejected a suggestion that a distinction should be drawn between cases of murder and manslaughter. Lord . .
• Cited – In re Giles Deceased ([1972] Ch 554)
  A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule . .
• Cited – Gray v Barr ChD ([1970] 2 QB 626)
  The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance.
  Held: The rule of public policy . .
• 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 – Gray v Barr CA ([1971] 2 QB 554)
  A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
  Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
• 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, decd ChD ([1985] Ch 85)
  A wife had pleaded guilty to the manslaughter of her husband.
  Held: Relief was granted to the wife under s.2(2) of the 1982 Act. The forfeiture rule for suicide operates to sever any joint tenancy on the death. The rule applied in a case where . .
• 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 . .

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

• Cited – Chadwick v Collinson and Others ChD (Bailii, [2014] EWHC 3055 (Ch))
  The court considered the division of the estate under the 1982 Act, after a beneficiary had been found to have killed the Deceased. The applicant had been sectioned under the 1983 Act and sought the disapplication of the 1982 Act.
  Held: The . .

(This list may be incomplete)

Last Update: 09 March 2017
Ref: 342132

The post D v L and Others: ChD 16 Apr 2003 appeared first on swarb.co.uk.

References: [1789] EngR 1185, (1789-1817) 2 Ves Jun Supp 289, (1789) 34 ER 1098 (C)
Links: Commonlii
Ratio:

Last Update: 09 March 2017
Ref: 366816

The post Hassal v Smithers: 1789 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: 09 March 2017
Ref: 368646

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

References: [1989] 2 All ER 431, [1989] 1 Ch 408
Coram: Morritt J
Ratio: The existence of exclusive rights of burial gives the owner of a body a right which is to be equated with a right of property, interference with which is actionable
Morritt J described an exclusive right of burial arising under the 1847 Act as something to be equated with a right of property but found it unnecessary to decide whether it was an interest in land.
Statutes: Cemeteries Clauses Act 1847
This case is cited by:

• Cited – HM Coroner for the Eastern District of London, Regina (On the Application of) v Sutovic Admn (Bailii, [2009] EWHC 1974 (Admin))
  The deceased had died in Serbia, but was buried in Acton. A second inquest had been ordered on the request of the respondent, and an exhumation licence granted for the purposes of a second post mortem examination. The respondent had refused her . .
• Cited – Brookwood Park Ltd v Guney and Others ChD (Bailii, [2014] EWHC 2629 (Ch))
  The parties disputed whether the defendants, trustees of a local charitable Turkish trust providing funeral service, had acquired an exclusive rights of burial within an area of the claimants’ cemetery.
  Held: There were signficant deficiencies . .

(This list may be incomplete)

Last Update: 09 March 2017
Ref: 371290

The post Reed v Madon: ChD 1989 appeared first on swarb.co.uk.

References: [2010] EWCA Civ 1474
Links: Bailii
Coram: Patten, Black LJJ, Lord Neuberger of Abbotsbury MR
Ratio: The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of the band.
Held: The appeal succeeded. The court should not assume as a universal rule that a high street firm of solicitors will not take account of tax provisions in framing their advice. The natural readimng of the particular words used suggested the value of the house was first to be deducted.
Patten LJ said: ‘One thing on which the parties were in agreement was the approach of the Court to the construction of a will. As mentioned above, it was common ground before the judge that no extrinsic evidence was admissible. He had therefore to follow the guidance of Lord Simon LC in Perrin v Morgan [1943] AC 399 at 406 and to construe the language of the will so as to find: ‘the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.’
We have therefore to examine the language of the will in its context taking into account the will as a whole; any relevant background circumstances which inform the meaning of the words used; and giving to those words their ordinary meaning unless they are obviously used in some special or technical sense
. . it is dangerous to approach the assessment of the Testator’s intentions other than through the language of his will. The first relevant consideration in my view is that the will was professionally drafted by a solicitor who has to be assumed to be competent. Although solicitors do obviously make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the Court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.’
Lord Neuberger of Abbotsbury MR said: ‘ As Patten LJ impliedly acknowledges by his reference to Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896, the court’s approach to the interpretation of wills is, in practice, very similar to its approach to the interpretation of contracts. Of course, in the case of a contract, there are at least two parties involved in negotiating its terms, whereas a will is a unilateral document. However, it is clear from a number of cases that the approach to interpretation of unilateral documents, such as a notice or a patent, is effectively the same, as a matter of principle, as the court’s approach to the interpretation of a bilateral or multilateral document such as a contract: see Mannai Investments Ltd v Eagle Star Insurance Co plc [1997] AC 749 and Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9.
One obvious difference between a bilateral document such as a contract and a unilateral document such as a will, is that parties negotiating a contract may well be consciously content to include an obscurely drafted provision, on the basis that it represents an acceptable compromise, which enables overall agreement to be reached, whereas, save in a most exceptional case, which it is hard to conceive, a person making a will has no interest in obscurity.’
Statutes: Inheritance Tax Act 1984 4(1)
This case cites:

• Cited – Cancer Research Campaign v Ernest Brown ([1997] STC 1425, [1998] PNLR 592)
  An executor does not usually owe a duty to advise a beneficiary in connection with the affairs of the beneficiary. Tax avoidance is not an idea that runs naturally or should be attributed to ordinary people or to legal executives in a small firm of . .
• Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
  The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
  Held: Investors having once . .

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

• Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD (Bailii, [2014] EWHC 2577 (Ch))
  The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .

(This list may be incomplete)

Last Update: 11 March 2017
Ref: 427374

The post Royal Society for The Prevention of Cruelty To Animals v Sharp and Others: CA 21 Dec 2010 appeared first on swarb.co.uk.

References: [2010] EWHC 3345 (Ch)
Links: Bailii
Coram: Mann J
Ratio: The claimant said that the defendants had destroyed her deceased lover’s will.

Last Update: 11 March 2017
Ref: 427289

The post Ferneley v Napier and Others: ChD 17 Dec 2010 appeared first on swarb.co.uk.

References: [2011] WTLR 397, [2011] NPC 8, [2011] EWHC 63 (Ch)
Links: Bailii
Coram: Proudman J
Ratio: The parties disputed the inheritance under a name and arms clause in a will.

Last Update: 11 March 2017
Ref: 428195

The post Howard v Howard-Lawson: ChD 21 Jan 2011 appeared first on swarb.co.uk.

References: (1875) LR 3 P&D 250
Coram: Sir J Hannen
Ratio: Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it.’
Statutes: Wills Act 1837
This case is cited by:

• Cited – Marley v Rawlings and Another ChD (Bailii, [2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477)
  A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
  Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
• 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: 11 March 2017
Ref: 428464

The post In the Goods of Hunt: 1875 appeared first on swarb.co.uk.

References: [1952] 6 WWR (NS) 702
Ratio: (British Columbia Supreme Court)
This case is cited by:

• Cited – Marley v Rawlings and Another ChD (Bailii, [2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477)
  A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
  Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .

(This list may be incomplete)

Last Update: 11 March 2017
Ref: 428467

The post Re Brander: 1952 appeared first on swarb.co.uk.

References: [2011] EWHC 945 (Ch), [2011] WTLR 947, [2011] Fam Law 809
Links: Bailii
Coram: Kitchin J
Ratio: The claimant the survivor of a long term relationship with the deceased claimed for provision form his estate, and an interest in the house under a constructive trust. The parties had moved several times buying and selling properties.
Held: The claim for a constructive trust failed. The parties had latterly kept their properties and financial affairs separate. The actual ownership arrangements reflected that intention. As to the claim under the 1975 Act, the claimant did fall within the class to be provided for. Under the laws of intestacy, the claimant would receive nothing at all. The actual beneficiaries did not themselves have financial needs, but the claimant would be receiving welfare benefits. Allowing for all the elements required to be accounted for, reasonable financial provision had not been made. A sum should be made available from the estate to her to allow her the purchase of a modest property.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975 1(1)(ba)

Last Update: 11 March 2017
Ref: 432856

The post Cattle v Evans and Another: ChD 19 Apr 2011 appeared first on swarb.co.uk.

References: [1767] UKHL 2_Paton_130
Links: Bailii
Ratio: Deathbed – Faculty to Burden – Testament.- A party disponed his whole estate to his heir-at-law, under a reserved power or faculty to burden at any time during his life, with provisions to younger children. By a codicil bearing no date, but executed ten months before his death, he altered this disposition so as to diminish the fund for the heir; and granted also an heritable bond of provision for £1000, in terms of his reserved power to burden, nine days before his death: Held that these deeds were reducible on the head of deathbed; but reversed in the House of Lords.
Jurisdiction: Scotland

Last Update: 12 March 2017
Ref: 560698

The post Mrs Pringle and Robert Andrews and Mark Pringle v John Pringle of Crichton: HL 29 Jan 1767 appeared first on swarb.co.uk.

References: [1976] TR 117, [1976] 2 All ER 354, [1977] AC 511, [1976] UKPC 11, [1976] 2 WLR 968, [1976] STC 145
Links: Bailii
Coram: Lord Wilberforce, Viscount Dilhorne, Lord Cross of Chelsea, Lord Fraser of Tullybelton, Lord Russell of Killowen
Ratio: (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 debtor is extinguished because an executor cannot sue himself.
This case cites:

• Cited – Sibthorp v Moxton (Commonlii, [1747] EngR 193, (1747) 1 Ves Sen 49, (1747) 27 ER 883 (B))
  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. . .
• Cited – The Attorney General v John Hollingworth ([1857] EngR 577, Commonlii, (1857) 2 H & N 416, (1857) 157 ER 172)
  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 . .

(This list may be incomplete)

Last Update: 12 March 2017
Ref: 444267

The post The Commissioner of Stamp Duties v Bone and Others: PC 5 Apr 1976 appeared first on swarb.co.uk.

wharton_bancroftChD2011
References: [2011] EWHC 3250 (Ch)
Links: Bailii
Coram: Norris J
Ratio: Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult daughters who challenged the will for lack of capacity and undue influence: ‘that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken’.
Held: The challenge failed and the court pronounced for the will. As to undue influence, the court had to be minded as to the burden and standard of proof, and ‘Is evidence of a departure from imprecisely expressed intentions evidence which is sufficiently cogent to persuade me that the explanation for the departure is that Mr Wharton’s volition was overborne by coercion, rather than that on his deathbed he saw things differently than he had in life? I answer that question in the negative. The imminence of death undoubtedly caused Mr Wharton to reassess matters. That is why he intended to get married. It was in the light of that intention that he made the 2008 Will. I do not regard it as suspicious that a ‘husband’ should leave to his ‘wife’ of 32 years the entirety of his estate, even if he is a rich man. The difference between the former indications and the actual terms of the 2008 Will are not in this case sufficiently cogent evidence to found the inference of coercion (particularly in the light of the consistent advice Mr Wharton had received as to the way of mitigating the now-imminent tax charge). I see no reason to treat Mr Wharton’s statements to Mr Bancroft (and the implication of his statement to Zena) about leaving his estate to Maureen as anything other than expressions of free will.’
The solicitor was not to be criticised for not following the ‘golden rule’ of securing the attendance of an independent medical expert to confirm the tetstaor’s capacity: ‘But testamentary capacity is not in issue in this case. I consider the criticism of Mr Bancroft for a failure to follow ‘the golden rule’ to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that ‘the golden rule’ has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.’
This case cites:

• Cited – Wingrove v Wingrove ([1885] 11 PD 81)
  To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
  Sir James Hannen said: ‘To . .
• Cited – Cowderoy v Cranfield ChD (Bailii, [2011] EWHC 1616 (Ch))
  The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
  Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of . .
• 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 . .
• Cited – Key and Another v Key and Others ChD (Bailii, [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, [2010] WTLR 623)
  The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
• Cited – 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 – Killick v Pountney and Another; Re Killick Deceased ChD (Times 30-Apr-99, Independent 10-May-99, (2000) 1 WTLR 41)
  Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
• Cited – Channon and Another v Perkins (A Firm) CA ([2006] WTLR 425, Bailii, [2005] EWCA Civ 1808)
  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 – Edwards v Edwards and others ChD (Bailii, [2007] EWHC B4 (Ch), [2007] WTLR 1387)
  Family members challenged the will saying that one son had exercised undue influence over the testatrix.
  Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
• Cited – 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 . .

(This list may be incomplete)

Last Update: 12 March 2017
Ref: 449871

The post Wharton v Bancroft and Others: ChD 8 Dec 2011 appeared first on swarb.co.uk.

References: [2012] EWHC 858 (Ch)
Links: Bailii
Ratio: The court was asked to construe the deceased’s manuscript will.
Jurisdiction: England and Wales

Last Update: 12 March 2017
Ref: 452450

The post Public Trustee v Butler and Another: ChD 3 Apr 2012 appeared first on swarb.co.uk.

References: [1836] UKPC 9, [1838] 2 Moo PCC 480
Links: Bailii
Ratio: 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 Moores 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. . .

(This list may be incomplete)

Last Update: 12 March 2017
Ref: 463555

The post Barry v Butlin: 22 Jun 1836 appeared first on swarb.co.uk.

References: [2012] EWCA Civ 1268
Links: Bailii
Coram: Sir Nicholas Wall P FD, Lloyd, Sullivan JJ
Ratio:
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case cites:

• See Also – Holliday and Another v Musa and Others CA ([2010] 2 FLR 702, Bailii, [2010] EWCA Civ 335, [2010] Fam Law 702, [2010] WTLR 839)
  The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .

(This list may be incomplete)

Last Update: 13 March 2017
Ref: 464848

The post Musa and Others v Holliday and Others: CA 15 Oct 2012 appeared first on swarb.co.uk.

References: [1914] UKPC 27
Links: Bailii
Ratio: (Ontario) The Board considered the interpretation of a will and codicils.

Last Update: 13 March 2017
Ref: 467553

The post Farrell v The National Trust Company Limited and Others: PC 7 Apr 1914 appeared first on swarb.co.uk.

References: [2012] EWHC 4187 (Ch)
Links: Bailii
Coram: Hodge QC J
Ratio: The court was asked: ‘where the proceeds of a fixed term joint life policy are paid over as the result of the death of the first of the joint lives insured, but in circumstances where it is to be assumed that the payment of the sum insured might have been brought forward on the footing that the deceased had been suffering from a terminal illness, was the deceased, immediately before her death, entitled to a joint tenancy of the lump sum life cover for the purposes of section 9 of the 1975 Act?’
Held: The court should not ignore the fact that, immediately before her death, the deceased, together with her joint policy owner, the defendant, had a crystallised right, subject to proof, to have her death benefit brought forward because of her diagnosed terminal illness.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case cites:

• Cited – Powell v Osbourne CA ([1993] 1 FCR 797, [1993] 1 FLR 1001)
  The deceased had separated from his wife and was cohabiting with Miss Osbourne. The deceased and Miss Osbourne purchased a property as joint tenants, with the assistance of a mortgage. The purchase price had been £91,000 and the mortgage was . .
• Cited – Murphy (By Her Litigation Friend Stockmont) v Holland CA ([2003] EWCA (Civ) 1862, Bailii, [2004] 1 FCR 1)
  A married couple had taken out an insurance policy on their joint lives. The policy was maintained after they divorced. On his death, his child by the later marriage claimed a share in the policy under the 1975 Act.
  Held: (Chadwick LJ . .

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

• Appeal from – Lim (An Infant) v Walia CA (Bailii, [2014] EWCA Civ 1076, [2014] WLR(D) 339, WLRD)
  The parties disputed a claim under the 1975 Act. Immediately before her death, the deceased had, because of her medical condition, a vested right to bring forward an insurance benefit, but that right had ceased upon her death. The court had found . .

(This list may be incomplete)

Last Update: 13 March 2017
Ref: 472525

The post Lim and Others v Walia: ChD 26 Sep 2012 appeared first on swarb.co.uk.

References: [2011] WTLR 231
Coram: Morgan J
Ratio: 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 and/or the terms of the will are not being made by P but by the court. Furthermore, insofar as there is a dispute between family members, the unsuccessful members are not likely to think that he had done the right thing.
Statutes: Mental Capacity Act 2005
This case is cited by:

• Cited – NT v FS and Others CoP (Bailii, [2013] EWHC 684 (COP))
  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 . .

(This list may be incomplete)

Last Update: 14 March 2017
Ref: 510002

The post Re G(TJ): 2011 appeared first on swarb.co.uk.

References: [1993] 1 FCR 797, [1993] 1 FLR 1001
Coram: Dillon LJ, Simon Brown LJ
Ratio: The deceased had separated from his wife and was cohabiting with Miss Osbourne. The deceased and Miss Osbourne purchased a property as joint tenants, with the assistance of a mortgage. The purchase price had been £91,000 and the mortgage was £85,000. The mortgage had been supported by an endowment policy, which would pay out after 15 years, or upon the earlier death of either party. The payment upon an earlier death was guaranteed to be at least £85,000. As at the date of death, there was no sale or surrender value attaching to the policy. The deceased died, and Mrs Powell brought proceedings under the Act. Aside from any interest which the deceased had in the payment made under the policy and/or in the Tottenham property, his estate was valueless. Mrs Powell, the wife, argued that immediately before his death, the deceased could have severed the joint tenancy in respect of the property, which would have meant that he was entitled to a half-share of the property, but with the benefit of the half-share of the benefit of the policy monies.
Held: It could not be correct to regard, as the recorder in the court below had done, the policy as having only a negligible value, as to do that would be to evaluate it immediately before the deceased’s death, but without any reference to his imminent death.
As to section 9 of the 1975 Act, Dillon LJ said that its: ‘object is to bring in what could have been severed immediately before the date of death. If the deceased had in fact severed the beneficial joint tenancy immediately before his death, he would have thereupon become entitled to a half-share in the property subject to the mortgage but with the benefit of the half-share in the policy monies and, accordingly, on his death, his net estate would have been left with a clear half-share of the property, half the policy monies having gone to discharge his half-share of the mortgage.
I find it slightly startling therefore, and anomalous, that the effect of section 9 should be said to be that, if the court is merely ordering that the deceased’s share of the joint property at the value thereof immediately before his death is to be treated as part of his net estate, the result is that the half-share of the policy monies is to be treated as of no value at all or at best merely a token value. One is looking at the moment immediately before the deceased’s death, which is the last moment for severing the beneficial joint tenancy, and to give effect to that it is necessary, to my mind, to keep in mind that the deceased is indeed about to die the very next moment or very soon, almost immediately, thereafter. Therefore it cannot be right to value immediately before his death without regard to his assumed imminent death. On the actual facts, he died in hospital (where he had been admitted not long before) and the cause of death was cerebral haemorrhage and hypertension. That again seems to indicate that immediately before his death his actual prospects of surviving would have been virtually negligible.
Taking that into account, I conclude that the order should reflect that, though the property is subject to the mortgage, the half-share of the policy monies is also to form part of the net estate.’
Simon Brown LJ agreed, adding that the deceased was immediately before his death beneficially entitled to a joint tenancy of a property which included an endowment policy. The crucial issue raised in the proceedings was therefore this: what was the value of the deceased’s severable share of that policy immediately before his death? Given that immediately before death the fact of imminent death was by definition inevitable, that issue could in turn be restated thus: in determining the value of a severable share immediately before death, does the court have regard to, or does it ignore, the imminence of death? If it has regard to it, then to all intents and purposes the value of a life policy is the same as at death. If, however, the court is to ignore the deceased’s imminent death and logically therefore ignore even his generally adverse medical condition, then the value is very considerably less. He continued: ‘I have concluded that the reason, and indeed the sole reason, why the value is to be determined immediately before death is because that is the last moment at which severance is possible and it is the severable share that is to be valued. No such consideration arises under section 8 and that is why by section 8(2) the value is to be taken there as at the date of death. The result is that when the value of the property in question depends upon death, and that will only be the case when, as here, the property is a life policy, the value immediately before death will be effectively the same as the value upon death. So be it. That seems to me both fair and to accord with the literal language of section 9.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975 9
This case is cited by:

• Cited – Lim and Others v Walia ChD (Bailii, [2012] EWHC 4187 (Ch))
  The court was asked: ‘where the proceeds of a fixed term joint life policy are paid over as the result of the death of the first of the joint lives insured, but in circumstances where it is to be assumed that the payment of the sum insured might . .
• Cited – Lim (An Infant) v Walia CA (Bailii, [2014] EWCA Civ 1076, [2014] WLR(D) 339, WLRD)
  The parties disputed a claim under the 1975 Act. Immediately before her death, the deceased had, because of her medical condition, a vested right to bring forward an insurance benefit, but that right had ceased upon her death. The court had found . .

(This list may be incomplete)

Last Update: 14 March 2017
Ref: 510161

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