References: [1934] Ch 384
Coram: Luxmoore J
Ratio: 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 of the earlier will. What was conclusive in that regard was that the second will was wholly inconsistent with the first. An implied revocation was found because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.
This case is cited by:

• Approved – In re Resch’s Will Trusts PC (Bailii, [1967] UKPC 1, [1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514)
  . .
• 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: 20 March 2017
Ref: 536793

The post In re Hawksley’s Settlement; Black v Tidy: 1934 appeared first on swarb.co.uk.

References: [2014] EWHC 3055 (Ch)
Links: Bailii
Coram: Pelling QC HHJ
Ratio: 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 circumstances offered did not allow disapplication of the Forfeiture rule.
Statutes: Forfeiture Act 1982, Mental Health Act 1983
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 – 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 – 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 . .
• Cited – D v L and Others ChD ([2003] WTLR 687, Bailii, [2003] EWHC 796 (Ch))
  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 . .

(This list may be incomplete)

Last Update: 20 March 2017
Ref: 537220

The post Chadwick v Collinson and Others: ChD 24 Sep 2014 appeared first on swarb.co.uk.

References: [1891] 3 Ch 119
Ratio: An action brought by a residuary legatee against an executor for the administration of the testator’s estate is an action for a legacy.
An executor, qua executor, is not an express trustee.
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 . .

(This list may be incomplete)

Last Update: 20 March 2017
Ref: 537361

The post In re Jane Davies: 1891 appeared first on swarb.co.uk.

References: [2014] EWHC 3134 (Ch)
Links: Bailii
Coram: DM Maraes
Ratio: The parties requested a decision on a preliminary issue, namely: ‘whether, on the footing that the facts and matters set out in the Claimant’s Particulars of Claim are true, the Claimant has an interest in the estate of Sylvia Joyce Corrall deceased sufficient to give him legal standing to bring a contentious probate claim therein.’
Jurisdiction: England and Wales

Last Update: 20 March 2017
Ref: 537368

The post Randall v Randall: ChD 7 Oct 2014 appeared first on swarb.co.uk.

References: [2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327
Links: Bailii
Coram: Lord Phillips of Worth Matravers CJ, Thorpe LJ, Dyson Lj
Ratio: 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: ‘Sections 124 and 125 of the 1981 Act deal with access to documents, namely wills, that are under the control of the court. Those sections provide that wills are to be open to inspection ‘subject to the control of the High Court’. Rule 58 of the NCPR makes provision for the court to determine that a will shall not be open to inspection if such inspection ‘would be undesirable or otherwise inappropriate’. No procedure is laid down for seeking or resisting an order that a will is not to be open to inspection. ‘ However the process under which this and other wills had been sealed was not itself transparent and no reasons had been given. The claimant should be given opportunity to argue his case.
Statutes: Supreme Court Act 1981, Non-Contentious Probate Rules 1987 3
This case cites:

• Cited – Lewis v Lewis ([1904] Ch 656)
  An executor owes no duty to inform a legatee of the terms of his legacy. . .
• Appeal from – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD (Bailii, [2007] EWHC 1607 (Fam), [2007] WTLR 1129)
  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. . .

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

• Cited – Re Benmusa FD (Bailii, [2017] EWHC 494 (Fam))
  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 . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 21-Mar-17
Ref: 264268

The post Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others: CA 8 Feb 2008 appeared first on swarb.co.uk.

References: [2007] EWHC 1607 (Fam), [2007] WTLR 1129
Links: Bailii
Coram: Sir Mark Potter P
Ratio: 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. None of the evidence presented remotely constituted evidence of what the claimant asserted. Though section 124 appeared to grant a full right to see a will lodged with the registry, that right was subject to a discretion in the court. As to his human rights claim that he was entitled to know: ‘The Human Rights Act was enacted and the Convention concluded in order to protect from interference and prejudice real rights and existing situations, not illusory rights or imaginary claims. A claimant is entitled to respect for the existence and development of his or her real family life under Article 8 and not for a fantasy family life, the product of his or her imagination. ‘ The claim failed.
Statutes: Non-Contentious Probate Rules 1987, Supreme Court Act 1981 124
This case cites:

• Cited – In re: King George III ((1822) 1 Add 255)
  The will of the Sovereign is not subject to probate. . .
• Cited – Reichal v Magrath ((1889) 14 AC 665)
  The court has an inherent jurisdiction to strike out all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. . .
• Cited – In re Stollery ([1926] Ch 284)
  A birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate. . .
• Cited – Gouriet v Union of Post Office Workers HL ([1978] AC 435, Bailii, [1977] UKHL 5, [1977] 3 All ER 70)
  The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
  Held: The wide wording of the statute . .
• Cited – Jackson v Jackson and Pavan ([1964] P 25)
  A properly issued birth certificate is prima facie evidence of the matters stated. . .
• Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL ([1982] AC 617, Bailii, [1981] UKHL 2, [1981] 2 All ER 93, [1981] 2 WLR 722, Bailii, [1981] UKHL TC_55_133, [1981] 1 WLR 793, [1981] TR 215, 55 TC 24, [1981] STC 344)
  The Commissioners had been concerned at tax evasion of up to andpound;1 million a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
• Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD ([2003] EWHC 2927 (Fam), [2004] 1 FCR 30, [2004] 2 FLR 949, Bailii, [2004] EMLR 8)
  A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
• Cited – Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA ([1986] 1 WLR 763, Bailii, [1987] QB 815, (1986) 2 BCC 99086, [1986] EWCA Civ 8, [1986] 2 All ER 257)
  The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
• Cited – Pretty v The United Kingdom ECHR (2346/02, (2002) 35 EHRR 1, Worldlii, [2002] ECHR 427, Bailii, (2002) 66 BMLR 147, 12 BHRC 149, [2002] Fam Law 588, [2002] 2 FCR 97, [2002] All ER (D) 286 (Apr), [2002] 2 FLR 45)
  The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
• Cited – Bensaid v The United Kingdom ECHR (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, Bailii, [2001] INLR 325, 11 BHRC 297)
  The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
• Cited – Botta v Italy ECHR (21439/93, Bailii, [1998] ECHR 12, , Bailii, [1996] ECHR 83)
  The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
  Held: ‘Private life . . includes a person’s . .
• Cited – Leander v Sweden ECHR ([1987] 9 EHRR 433, 9248/81, Bailii, [1987] ECHR 4, Bailii)
  Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
• Cited – Guerra and Others v Italy ECHR (Gazette 20-May-98, 14967/89, (1998) 26 EHRR 357, Bailii, [1998] ECHR 7, , Bailii)
  (Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
  Held: Failure by a government to release to an . .
• Cited – Niemietz v Germany ECHR (13710/88, [1992] 16 EHRR 97, Worldlii, [1992] ECHR 80, Bailii)
  A lawyer complained that a search of his offices was an interference with his private life.
  Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
• Cited – Gaskin v The United Kingdom ECHR (10454/83, [1990] 1 FLR 167, Bailii, [1989] ECHR 13, (1989) 12 EHRR 36, Bailii)
  The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
  Held: The refusal to allow him . .

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

• Appeal from – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA (Bailii, [2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327)
  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: . .
• Cited – Re Benmusa FD (Bailii, [2017] EWHC 494 (Fam))
  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 . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 21-Mar-17
Ref: 254471

The post Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others: FD 5 Jul 2007 appeared first on swarb.co.uk.

References: [2017] EWHC 494 (Fam)
Links: Bailii
Coram: Sir James Munby P FD
Ratio: 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.’
This case cites:

• Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD (Bailii, [2007] EWHC 1607 (Fam), [2007] WTLR 1129)
  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 (Bailii, [2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327)
  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: . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 21-Mar-17
Ref: 580988

The post Re Benmusa: FD 14 Mar 2017 appeared first on swarb.co.uk.

References: [1904] Ch 656
Ratio: An executor owes no duty to inform a legatee of the terms of his legacy.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others CA (Bailii, [2008] EWCA Civ 56, [2008] 1 WLR 2327, [2008] 1 WLR 2327)
  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: . .

(This list may be incomplete)

Last Update: 21 March 2017
Ref: 264289

The post Lewis v Lewis: 1904 appeared first on swarb.co.uk.

References: [2015] EWCA Civ 881
Links: Bailii
Coram: McCombe LJ
Ratio: Appeal against court ordered appointment of the bank as executor of the father’s estate.
Jurisdiction: England and Wales

Last Update: 21 March 2017
Ref: 551260

The post Bourne v Lloyds TSB Bank Plc and Another: CA 10 Jun 2015 appeared first on swarb.co.uk.

References: [1857] 6 HL Cas 61, [1857] EngR 335, (1857) 6 HLC 61, (1857) 10 ER 1216
Links: Commonlii
Coram: Lord Wensleydale
Ratio: The House was required to interpret a will where a benefit was to pass only if someone was to die ‘and not have children.’
Held: ‘It is ‘the universal rule’, that in construing statutes, as well as in construing all other written instruments ‘the grammatical and ordinary sense of the word is ‘to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity ad inconsistency, but no further’.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Vacher and Sons Ltd v London Society of Compositors HL (Bailii, [1912] UKHL 3, [1913] AC 107)
  Lord Moulton said that the danger of departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’.
  Lord Haldane LC after stating that . .

(This list may be incomplete)

Last Update: 21 March 2017
Ref: 189957

The post Grey v Pearson: HL 9 Mar 1957 appeared first on swarb.co.uk.

References: Times 29-Mar-2002, Gazette 11-Apr-2002, [2002] EWHC 218 (Ch)
Links: Bailii
Coram: Mr Justice Etherton
Ratio: Land having been conveyed under the Act, and it no longer being needed as a school, it had to be decided to whom the land reverted.
Held: The tracing of beneficiaries had to be in the basis under section 2, that the land had never been so conveyed. It would so have passed not as a right of reverter, and therefore as part of the residuary estate, but rather as if it had been land in the estate, and passed as provided by the will as such. A right of reverter on the determination of a determinable fee was devisable under 3 of the 1837 Act
Statutes: School Sites Act 1841 2, Wills Act 1837 3
Jurisdiction: England and Wales
This case cites:

• Cited – In Re Cawston’s Conveyance and the School Sites Act 1841 CA ([1940] Ch 27)
  The 1841 Act was intended to encourage land owners to make land available for educational purposes: ‘One can see that the provision with regard to reverter would have been and no doubt was considered by the Legislature to be a very useful . .
• Cited – Dennis v Malcolm ([1934] Ch 244)
  The court considered the way in which the 1841 Act might operate as to a reversion of the title. Clauson J said: ‘In my view it is plain that the deed is intended to operate and operate only under the [1841] Act, and the effect of dealing with the . .
• Cited – Fraser and Another v Canterbury Diocesan Board Of Finance (No 1) CA (Times 09-Jan-01, Gazette 25-Jan-01, [2001] Ch 669, Bailii, [2000] EWCA Civ 460)
  A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had . .

(This list may be incomplete)

Last Update: 21 March 2017
Ref: 168063

The post Rector of Wrington and The Bath and Wells Diocesan Board of Finance v Jenkinson and Others: ChD 26 Feb 2002 appeared first on swarb.co.uk.

References: (1863)
Ratio: The testator had become infirm and unable to sign his name. He had made a stamp which reproduced his signature. He used it to execute his will. The will was challenged.
Held: The will had been validly executed. The requirement of the Act could be fulfilled by somebody else executing a document on the direction of the testator, and therefore was equally fulfilled in this case.
Statutes: Wills Act 1837 9

Last Update: 21 March 2017
Ref: 174455

The post Jenkins v Gaisford, Re Jenkins (deceased)’s goods: ChD 1863 appeared first on swarb.co.uk.

References: (1857) 3 K & J 608, (1857) 2 De G & J 62, [1857] EngR 4 (B)
Links: Commonlii
Ratio: The testator directed his trustees to offer all his real estate to his brother at the price of andpound;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, at the expiration of two months from the time of signifying his intention, pay the price, then the testator directed his trustees to sell the premises by public auction or private contract, and directed his trustees to stand possessed of the sale price upon trusts for the benefit of another brother and his sisters. The brother signified his intention within the relevant time to buy the property, but failed to pay the purchase price, when his solicitor was not provided with an abstract of title. Sir William Page Wood V-C said that the right of pre-emption was a privilege, and the conditions were conditions with which the brother was obliged to comply strictly, and the case was analogous to a case between vendor and purchaser where time was of the essence. Having signified his intention to purchase the property, it became his duty to pay the purchase money, and he was not justified in waiting for an entire abstract of title. It was said that the position might have been different if there had been fraud or laches. On appeal, Lord Cranworth LC agreed: ‘It is said, that although he did not pay within the time, he did what ought to be considered as equivalent to payment, or ought to exonerate him from any charge of neglect. Now, I have more than once had occasion to say that I think this Court has gone to too great an extent in departing from the precise terms of the contracts into which parties have entered, and so in effect making other contracts for them . . No authority has, however, been produced in which this court has varied the terms of a gift under which a benefit is to be taken. The rule there is (cujus est dare ejus est disponere(and if the donor choose to say that in the event of a person paying 2,500l. on or before a specified day the gift shall take effect, I do not see how the court, if the money is not paid on or before the day, can take anything as an equivalent for the payment at the prescribed time.’
This case is cited by:

• Cited – Hayward v Jackson ChD (Bailii, Times 27-Feb-03, [2003] EWHC 253 (Ch), Gazette 03-Apr-03)
  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 . .
• See Also – Brooke v Garrod ([1857] EngR 783, Commonlii, (1857) 3 K & J 608, (1857) 69 ER 1252)
  . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 179727

The post Brooke v Garrod: 1857 appeared first on swarb.co.uk.

References: (1840) 3 Moores PCC 282, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117
Links: Commonlii
Coram: Erskine J
Ratio: The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the testator may strengthen certain presumptions which arise against the will in a case where the will is contrary to the previously expressed intentions of the testator as to his testamentary dispositions.
‘in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property.’ and
‘Now if their Lordships had found from the other evidence that Mr Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he dies; and that during that illness he had acted upon that previous intention, and executed a Will in question, – less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased.’
Erskine J said: ‘Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity.’
and ‘that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose.’
This case is cited by:

• Cited – Ewing v Bennett CA (Bailii, [1998] EWCA Civ 342)
  The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
  Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
• Approved – 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 – 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 – Potter v Potter FdNI (Bailii, [2003] NIFam 2)
  The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
• Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA (Bailii, [2006] EWCA Civ 449, [2006] WTLR 1059)
  The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
• Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA (Times 28-Dec-02, [2002] EWCA Civ 1889, Bailii, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5)
  The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
• Cited – Kostic v Chaplin and others ChD (Bailii, [2007] EWHC 2298 (Ch))
  The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
  Held: The wills were invalid. It was clear that when made, . .
• Cited – Judy Ledger v Wootton and Another ChD (Bailii, [2007] EWHC B13 (Ch), [2007] EWHC 2599 (Ch), Bailii)
  A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
  Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
• 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 – 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 . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 181900

The post Charles Harwood v Maria Baker: PC 1840 appeared first on swarb.co.uk.

References: [1907] P 122
Coram: Sir Gorrell Barnes P
Ratio: 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 the circumstances lead reasonably to the investigation in regard to a propounded document. In the latter case the costs may be left to be borne by those who incurred them. In the former the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.
Sir Gorell Barnes P said: ‘In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.’
This case is cited by:

• Cited – In re Good, deceased; Carapeto v Good and Others ChD (Times 22-May-02, Gazette 07-Jun-02, (2002) WTLR 801, [2002] All ER 141, [2002] EWHC 640)
  The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
• 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 . .
• Endorsed – Re Plant deceased ([1926] P 139)
  The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
• Cited – Re Cutliffe’s Estate CA ([1959] P 6)
  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 . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 182792

The post Spiers v English: 1907 appeared first on swarb.co.uk.

References: [1936] Ch 520
Ratio: The testatrix, a nun, left her property to whoever was abbess of the convent at the date of her death. The nun who witnessed the will was later that abbess. The gift was challenged under the Act.
Held: The act took effect where the gift was taken beneficially. The gift remained effective here because the gift was taken as trustee for the convent, and also that at the time the will was made the person who would eventually take, could not be ascertained.
Statutes: Wills Act 1837 15

Last Update: 22 March 2017
Ref: 182732

The post Re Ray’s Will Trusts, Public Trustee v Barry: 1936 appeared first on swarb.co.uk.

References: [1984] 1 Ch 480, [1984] 3 WLR 265, [1984] 3 All ER 1
Coram: Vinelott J
Ratio: Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be andpound;36,000. Yet on an application under the 1975 Act he awarded her andpound;60,000.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case is cited by:

• 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: 22 March 2017
Ref: 196904

The post Re Bunning, deceased; Bunning v Salmon: ChD 1984 appeared first on swarb.co.uk.

References: [1968] 1 WLR 103
Coram: Megarry J
Ratio: The court had to decide on the intentions of the deceased with regard to domicile: ‘In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man’s mind may be as much a fact as the state of his digestion, but, as Harman LJ is reputed to have observed, ‘the doctors know precious little about the one and the judges know nothing about the other.” and ‘Acquisition and abandonment are correlatives . . When animus and factum are each no more, domicile perishes also; for there is nothing to sustain it. If a man has already departed from the country, his domicile of choice there will continue so long as he has the necessary animus.’
This case cites:

• Cited – Udny v Udny HL ((1869) 1 LR Sc & Div 441, (1869) LR 1 HL 441)
  The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .

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

• Cited – Leon Rhys Morgan As Attorney of Sir Peter Shaffer v Diane Cilento, Carolyn Shaffer, Claudia Shaffer, Cressida Shaffer, Marie Josette Capece Minutolo ChD ([2004] EWHC 188(Ch), Bailii, [2004] WTLR 457)
  The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not . .
• See Also – Re Flynn (no 2) ([1969] 1 Ch 403)
  An acknowledgement of title to restart a limitation period must be precisely focused on a disputed right. . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 196842

The post Re Flynn: 1968 appeared first on swarb.co.uk.

References: [1952] Times LR 925
Coram: Devlin J
Ratio: 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 not read over or summarised to him before he executed it and Devlin J was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the ‘Last wish’ and had executed the will in the understanding that it gave effect to its provisions.
The court considered the necessary mental capacity of a testator when executing a will: ‘If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely upon the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions.’
This case cites:

• 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 – Pereira v Pereira; Perera v Perera PC (Bailii, [1901] UKPC 16, [1901] AC 354, [1901] 70 LJPC 46, [1901] 84 LT 371)
  The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
  Held: It is . .

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

• Approved – 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 – Potter v Potter FdNI (Bailii, [2003] NIFam 2)
  The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
• Cited – 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 . .
• Cited – 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 . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 196962

The post In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another: 1952 appeared first on swarb.co.uk.

References: [1986] 1 FLR 404
Coram: Ewbank J
Ratio: The court considered what special circumstances had to be shown to found a claim under the Act other than by a spouse: ‘It is also said on behalf of the charities that before I can make an order I will have to find that there were special circumstances outside the range of circumstances listed in s.3 of the Act. It is said that this can be derived from the case of Re Coventry above but I do not read the case of Coventry in that light. That was relating to a grown up man who was capable of working, and a judge, with whom the Court of Appeal agreed, said that if a grown up man capable of working was going to make an application under the Act he would look for special circumstances. So one would. But that is not a question of law; it is a question of applying common sense principles…’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case is cited by:

• Cited – Snapes v Aram; Wade etc, In re Hancocks (Deceased) CA (Gazette 20-May-98, Times 08-May-98, Gazette 03-Jun-98, Bailii, [1998] EWCA Civ 764, [1998] 2 FLR 346)
  The adult daughter of the deceased claimed under the 1975 Act.
  Held: The appeal against the award in favour of the daughter failed. An adult child may not be absolutely unentitled to claim for provision from an estate, where it can be shown . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 197026

The post Re Debenham deceased: 1986 appeared first on swarb.co.uk.