References: [2004] EWHC 1613 (Ch)
Links: Bailii
Coram: The Hon Mr Justice Lightman
Ratio: The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. The evidence of the widow was not credible, and the grant of probate was revoked.
This case cites:

• Cited – Re Beadle ([1974] 1 WLR 417)
  Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed . .
• Doubted – In the Estate of Benjamin, deceased ([1934] 1 All ER 359, (1934) 150 LT 417)
  The intention of a purported witness to the execution of a will is immaterial if the will is in proper form. . .
• Cited – In the Estate of Fuld, decd (No 3) ChD ([1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318)
  The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
  Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
• Cited – Re Colling Dec’d ([1972] 3 All ER 729)
  For the valid execution of a will, the burden is on those propounding the will to establish on the balance of probabilities that the technical requirements of the Act are strictly complied with irrespective of whether such insistence defeats the . .
• Cited – Daintrey v Butcher ((1888) 13 PD 102)
  For the purpose of proving the correct attestation of a will it is sufficient that the will bears the signature of the testator, that two persons are asked to sign (and do sign) as witnesses and the testator’s signature is so placed that the . .

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

• Appeal from – Sherrington v Sherrington CA (Bailii, [2005] EWCA Civ 326, Times 24-Mar-05)
  The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
• See Also – Sherrington and Another v Sherrington CA (Bailii, [2006] EWCA Civ 1784)
  The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 198711

The post Sherrington v Sherrington: ChD 13 Jul 2004 appeared first on swarb.co.uk.

References: 69498/01, [2004] ECHR 334
Links: Worldlii, Bailii
Ratio: A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to pass to the children and grandchildren of the testatrix’s daughters. She died in 1949. In 1995 Francesc-Xavier made a will in favour of his wife, but in a codicil he left the assets inherited under his mother’s will to his wife for life and then to their adopted son Antoni, who was born in 1966 and adopted by them, in Spain, in 1969. The assets were described in the report as real estate. Francesc-Xavier died in 1996.
Two great-granddaughters of the testatrix applied to the Tribunal des Batlles to have the codicil declared void. That Tribunal dismissed the application on the basis that the case was governed by the testatrix’s intention determined by the terms of her will, that there was no statutory or constitutional provision relating to adopted children at that time in Andorra, that customary law was derived partly from Roman law under which adopted children ranked equally with natural-born children, and accordingly the testatrix, by making no express exclusion of adopted children, should not be taken to have excluded them by implication. I understand that legislation was introduced in 1958 putting adopted children on an equality, but that this did not affect the matter.
The great-granddaughters appealed, and in 2000 the High Court of Justice allowed the appeal and set aside the codicil in its entirety. It agreed that the matter was governed by the testatrix’s expressed intention when she made her will, and that Antoni could not rely on the legislation of 1958. But it was significant that in the first half of the 20th century adoption was virtually unknown in Andorra, that provisions of Roman law ‘could not easily be transposed’ to Andorran families living at that time, that in any event the relevant Spanish legislation (under which Antoni had been adopted) gave an adopted child rights of inheritance from his or her adoptive parents but not from more remote family members; so that, by not explicitly including adopted children, the testatrix should not be taken to have intended to include her son’s adopted son.
Antoni and his mother made two attempts to have this ruling annulled by the national courts in Andorra, but those attempts failed. They then brought the claim in the ECHR, saying that the appeal court had acted in breach of articles 8 and 14 by allowing the appeal from the decision of the Tribunal, and they maintained that the case should be governed by private law in the light of Andorran law in force in 1996, when Francesc-Xavier died, and the Convention. The ECHR took the relevant national legislation to be that in force in 1939 and 1949 (rather than 1996).
The government of Andorra took a preliminary point that no relevant ‘family life’ was affected because Antoni had been adopted 20 years after the testatrix had died, but the ECHR ruled unanimously that inheritance by children and grandchildren does fall within the scope of article 8, The Court was divided on the main issue, with a majority concluding that Antoni’s rights under articles 8 and 14 had been infringed, but with two members of the court, namely Judge Bratza and Judge Garlicki, dissenting. The majority began by pointing out that previous cases of this kind before the ECHR had concerned the discriminatory effect of statutes in various member states, whereas the instant case related to the interpretation or construction of a testamentary disposition. They went on to record the principle that domestic law should normally be determined by the domestic courts, all the more so with a disposition such as a will. ‘Accordingly . . an issue of interference with private and family life could only arise under the Convention if the national courts’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.’
The majority went on to find that the decision of the appeal court was blatantly inconsistent with the Convention: ‘In the present case the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant’s father [Francesc-Xavier] is indisputable. The sole remaining question is therefore whether the notion of ‘son’ in [the testatrix’s] will extended only, as the [appeal court] maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so, but as she did not the only possible and logical conclusion is that this was not her intention.
‘The [appeal court’s] interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it.
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
In the present case the [appeal court’s] interpretation of the testamentary disposition in question had the effect of depriving the first applicant [Antoni] of his right to inherit under his grandmother’s estate and benefiting his cousin’s daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant [Antoni’s mother] losing her right to the life tenancy of the estate assets left her by her late husband.
Since the testamentary disposition, as worded by [the testatrix], made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child’s inheritance rights.’
‘The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for states, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the Member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix’s death, namely in 1939 and 1949, particularly where a period of 57 years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills : any interpretation should endeavour to ascertain the testator’s intention and render the will effective, while bearing in mind that ‘the testator cannot be presumed to have meant what he did not say’ and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court’s case law.’
Statutes: European Convention on Human Rights
This case is cited by:

• 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 . .
• Judgment – Pla and Puncernau v Andorra ECHR (Bailii, [2011] ECHR 1575, 69498/01)
  Execution – The court was asked to interpret a testamentary provision and as to the right of an adopted son to inherit from his grandmother under her will.
  When a child is adopted under a full adoption procedure, the child is in the same legal . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 198704

The post Pla and Puncernau v Andorra: ECHR 13 Jul 2004 appeared first on swarb.co.uk.

References: (1854) 19 Beav 597
Coram: Sir John Romilly MR
Ratio: The testatrix had left funds to support a school in Genoa.
Held: The courts have no authority to make a scheme where the trustees would not be within the jurisdiction of the English courts.
This case is cited by:

• Cited – Gaudiya Mission and others v Brahmachary and others Sixth CA (Times 24-Sep-97, Bailii, [1997] EWCA Civ 2239)
  The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 200673

The post Attorney-General v Sturge: 1854 appeared first on swarb.co.uk.

References: [2001] EWCA Civ 228
Links: Bailii
Coram: Robert Walker LJ
Ratio: The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was marginal, but an appeal was not hopeless.
This case cites:

• Full Appeal – Fuller v Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
  The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
  Held: The onus on the propounder of a will to show that it . .
• At First Instance – Fuller v Strum ChD (Gazette 08-Feb-01, Times 14-Feb-01, [2001] WTLR 677)
  Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .

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

• Leave application – Fuller v Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
  The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
  Held: The onus on the propounder of a will to show that it . .
• See Also – Fuller v Strum CA (Bailii, [2001] EWCA Civ 1551)
  The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
  Held: Application refused. The issue at the appeal would be not the . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 200805

The post Fuller v Strum: CA 16 Feb 2001 appeared first on swarb.co.uk.

References: [1923] P 46
Coram: Salter J
Ratio: 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 approved its content. I think that that contention is fallacious and based on a confusion between the terms and the effect of the document. A testator cannot give a conditional approval to the words which had been put in his intended will by himself or by another for him. He cannot say ‘I approve those words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them’. He must find, or employ others, to find apt words to express his meaning; and if knowing the words intended to be used he approves and executes the will then he knows and approves the contents of his will and all the contents even though such approval may be due to a mistaken belief of his own or to honestly mistaken advice from others as to their meaning and legal effect: Morrell v Morrell 7PD 68′.
This case is cited by:

• Cited – Thompson and others v Thompson and others FdNI (Bailii, [2003] NIFam 3, GIRF3864)
  The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
  Held: There was clear evidence that the testator, whilst changeable, . .
• Cited – In the Estate of Knibbs, deceased. Flay v Trueman ([1962] 1 WLR 852, [1962] 2 All ER 829)
  Wrangham J said: ‘As Salter J said in Beech’s case: ‘I think that, in order to constitute a will, the words used by the testator must be intended by him, at or after the time when he uses them, to be preserved or remembered so as to form the guide . .
• Cited – Ayling v Summers and Others ChD ([2009] WTLR 1657, [2010] 1 All ER 410, Bailii, [2009] EWHC 3168 (Ch))
  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 . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 214015

The post Re Beech: 1923 appeared first on swarb.co.uk.

References: [1981] 2 All ER 140
Coram: Browne-Wilkinson J
Ratio: The courts have declined to define the word ‘maintenance’ closely. ‘Maintenance’ connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. ‘It is now clearly established that claims under the Act by persons other than spouses are limited to maintenance. The applicant has to show that the will fails to make provision for his maintenance: see Re Coventry (deceased) [1979] 2 All ER 408, [1980] Ch 461; affd [1979] 3 All ER 815, [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in Re Christie (deceased) [1979] 1 All ER 546, [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment the word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case cites:

• Cited – In re Coventry dec’d ChD ([1979] 2 All ER 408, [1981] Ch 461)
  The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
• Mentioned – Re Christie (deceased) ([1979] Ch 168, [1979] 1 All ER 546)
  In an application under the 1975 Act, the judge treated maintenance as being equivalent to providing for the well-being or benefit of the applicant.
  Mr Vivian Price QC said: ‘ ‘although reasonable financial provision means provision for the . .

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

• Cited – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA (Gazette 16-Feb-94, Times 03-Jan-94, [1994] Ch 286, [1994] 3 WLR 67, [1994] 3 All ER 27, Bailii, [1993] EWCA Civ 10)
  The adult non-dependent son of the deceased claimed provision from his estate. He had been separated from his father since being a young child, and had received almost nothing.
  Held: The claim failed. A past lack of maintenance could not to be . .
• Cited – Phizackerley v Revenue and Customs SCIT (Bailii, [2007] UKSPC SPC00591)
  The deceased husband had been the sole wage earner. On retirement he bought a house which was placed in his and his wife’s name. They then severed the joint tenancy and created wills trusts each leaving their share in trust for the survivor. After . .
• Cited – Bahouse and Another v Negus CA (Bailii, [2008] EWCA Civ 1002)
  The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
  Held: Appeals under the . .
• Cited – Ilott v Mitson and Others CA (Bailii, [2015] EWCA Civ 797, [2016] 1 All ER 932, [2015] WTLR 1399, [2015] 2 FCR 547, [2015] Fam Law 1196, [2015] 2 FLR 1409)
  . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 214190

The post Re Dennis deceased: ChD 1981 appeared first on swarb.co.uk.

References: [1941] Ch 192, [1941] 1 All ER 236
Ratio: It is for the person making application for provision from an estate to establish that the deceased was domiciled in England and Wales.

Last Update: 23 March 2017
Ref: 220634

The post Mastaka v Midland Bank Executor and Trust Co Ltd: 1941 appeared first on swarb.co.uk.

References: [1829] EngR 246, (1829) 3 Bligh NS PC 84, (1829) 4 ER 1271
Links: Commonlii
Ratio:
Jurisdiction: England and Wales

Last Update: 24-Mar-17
Ref: 322114

The post Thomas Spong v John Spong, And Others: PC 1829 appeared first on swarb.co.uk.

References: [1961] 1 WLR 892
Coram: Phillimore J
Ratio: The court considered the requirements for a valid execution of a will.
Held: The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. Phillimore J discussed the strength of the presumption in favour of due execution, saying: ‘The force of the presumption or maxim varies with all the circumstances. Where a document is entirely regular in form it may be very strong; but where, as here, it is irregular and unusual in form, the maxim cannot apply with the same force.’ The question he had to decide was ”whether, in all the circumstances of this particular case, it is more probable that what was done was done as it ought to have been done to render the will valid.’
This case is cited by:

• Cited – Sherrington v Sherrington CA (Bailii, [2005] EWCA Civ 326, Times 24-Mar-05)
  The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
• Appeal from – In the Estate of Bercovitz, deceased; Canning v Enever CA ([1962] 1 WLR 321, [ 1962] 1 All ER 552)
  Upheld – The court must be satisfied that the witness had signed the will with the intention of attesting the testator’s signature or of attesting the will. . .
• Cited – Re Beadle ([1974] 1 WLR 417)
  Although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed . .
• Cited – Lim v Thompson ChD (Bailii, [2009] EWHC 3341 (Ch), [2010] WTLR 661)
  The claimant sought revocation of letters of administration granted to the defendant, asserting the existence of a valid will. The defendant said that the will was not validly executed. Only a copy had been found, and one with only one witness. One . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 223794

The post In the Estate of Bercovitz, deceased; Canning v Enever: ChD 1961 appeared first on swarb.co.uk.

References: (1884) 9 PD 149
Coram: Earl of Selborne LC
Ratio: The testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to ‘sign this paper’ which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen P., did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the regularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose.
Held: The appeal was dismissed: ‘I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.’
This case is cited by:

• Cited – Sherrington v Sherrington CA (Bailii, [2005] EWCA Civ 326, Times 24-Mar-05)
  The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
• 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 – Ahluwalia v Singh and Others ChD ([2012] WTLR 1, Bailii, [2011] EWHC 2907 (Ch))
  The claimant challenged the validity of the will, saying that it had not been validly attested, the two witnesses not being present at the same time despite the attestation clause saying they had been.
  Held: The challenge succeeded. . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 223796

The post Wright v Sanderson: 1884 appeared first on swarb.co.uk.

References: [2004] EWHC 2258 (Ch), [2005] WTLR 119
Links: Bailii
Coram: Bartley Jones QC
Ratio: The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been a difficult and eccentric character. In this case the defendant had failed to rebut the evidential presumption of undue influence. Trust and confidence had been placed by the deceased in the defendant, and the transactions called for an explanation which was not given.
This case cites:

• Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL (House of Lords, Times 17-Oct-01, Bailii, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P & CR DG14, [2001] 3 FCR 481)
  Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
  Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
• Cited – Allcard v Skinner CA ((1887) 36 Ch D 145)
  The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
  Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
• Cited – Niersmans v Pesticcio CA (Bailii, [2004] EWCA Civ 372)
  A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
  Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
• Cited – Zamet v Hyman CA ([1961] 1 WLR 1442)
  In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .
• Cited – Margaret Betina Hammond v Susan Osborn and Another CA (Times 18-Jul-02, Gazette 05-Sep-02, Bailii, [2002] EWCA Civ 885, [2002] WTLR 1125)
  Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
• Cited – Barclays Bank Plc v O’Brien and Another HL (Gazette 17-Dec-93, Times 22-Oct-93, Independent 22-Oct-93, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, Bailii, [1993] UKHL 6)
  The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
  
• Cited – Langton v Langton and Another ChD (Times 24-Feb-95, [1995] 2 FLR 890)
  The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence. . .
• Cited – Inche Noriah v Shaik Allie Bin Omar PC ([1929] AC 127)
  Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 226175

The post Randall v Randall: ChD 30 Jul 2004 appeared first on swarb.co.uk.

References: [1935] Ch 89
Coram: Denning J, Clauson J
Ratio: The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the 1925 Act.
Held: Clauson J said that the forfeiture rule applied: ‘The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim’s will precludes him from claiming a benefit conferred on him, in a case of his victim’s intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver’s case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own.’
A person cannot bring an action based on his own wrong. As to the doctrine of judicial precedent ‘we fill in the gaps.’
Statutes: Administration of Estates Act 1925

Last Update: 24 March 2017
Ref: 226975

The post Re Sigsworth: Bedford v Bedford: 1935 appeared first on swarb.co.uk.

References: [2017] EWHC 85 (Ch)
Links: Bailii
Coram: Bowles M
Ratio: Claim for revoication of grant of probate on grounds that the will was not validly executed. It had been signed but before the witnesses attended.
Statutes: Wills Act 1837 9, Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales

Last Update: 25-Mar-17
Ref: 579955

The post Wilson v Lassman: ChD 7 Mar 2017 appeared first on swarb.co.uk.

References: [2005] EWCA Civ 1293, Times 10-Nov-2005
Links: Bailii
Coram: Sir Peter Gibson (President)
Ratio: The applicant appealed an order that a statutory will be executed for the patient, who suffered from Alzheimer’s disease. The will substituted a solicitor for the applicant as executor, and made technical improvements. The court considered its jurisdiction to hear an appeal without leave to appeal having been obtained.
Held: The 1983 Act allowed for the nomination of judges to hear applications. High Court judges would be nominated to these posts. A statutory right of appeal lies from the nominated judge to the Court of Appeal: ‘Although a nominated judge derives his position from his office as a judge of the High Court, when exercising his jurisdiction under Part VII of the Mental Health Act 1983 he is not sitting in the High Court. Accordingly the permission requirements imposed by CPR Part 52.3 do not apply to an appeal from his decision delivered in the course of such jurisdiction. ‘
Statutes: Mental Health Act 1983 105(1), Cvil Procedure Rules 52.3
This case cites:

• Cited – Re Cathcart ([1893] 1 Ch 466)
  The jurisdiction to appoint judges to deal with the assets of those with mental health problems is vested in the Lord Chancellor, but is exercised by certain appointed/nominated judges of the High Court. . .
• Cited – Colley v Council for Licensed Conveyancers CA (Bailii, Times 06-Aug-01, Gazette 31-Aug-01, [2001] EWCA Civ 1137, [2002] 1WLR 160)
  The applicant had sought to exercise his statutory right of appeal from a decision by his professional body. The judge had considered that leave was necessary under the rules, and granted limited permission. The applicant appealed, saying that his . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 231673

The post In re MB (A Patient) (Court of Protection: Appeal): CA 1 Nov 2005 appeared first on swarb.co.uk.

References: [1985] Ch 22
Ratio: The court considerd an application under the 1975 Act where the claimant had been convicted of the manslaughter of her husband with a finding of diminished responsibility, and was the sole beneficiary under his will. The Forfeiture Act 1982 was not yet in effect.
Held: The claim was struck out as disclosing no reasonable cause of action and the appeal against that order was dismissed. Reasonable financial provision would have been made by the will, and therefore s1 and 2 of the 1975 Act precluded her application. In any event the rule against benefitting from a criminal act prevented an order.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
This case is cited by:

• Cited – J v S T (Formerly J) CA (Bailii, [1996] EWCA Civ 1016, [1998] Fam 103)
  The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 235292

The post In re Royce (Deceased): 1985 appeared first on swarb.co.uk.

References: [2005] EWCA Civ 1479
Links: Bailii
Ratio: The claimant said that he had been disinherited from his grandfather’s will being illegitimate.
This case is cited by:

• At Admn – Upton v United Kingdom ECHR (29800/04, Bailii, [2006] ECHR 1203, 47 EHRR SE24, (2008) 47 EHRR SE24)
  Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 235534

The post Upton v National Westminster Bank Plc and others: CA 14 Nov 2005 appeared first on swarb.co.uk.

References: [2006] EWCA Civ 129
Links: Bailii
Coram: Mummery LJ, Longmore LJ, Lewison J
Ratio: The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: ‘marriage by a man with a domicile of origin in one country to a woman domiciled in another country and post-matrimonial residence with his wife in that other country for many years are important considerations, but they are not conclusive.’ A later choice by the defendant was not sufficient to displace his domicile of origin: ‘If, as is agreed, Andreas did not acquire a domicile of choice in England between 1958 and 1995, because he did not intend to live in England permanently or indefinitely, it could not reasonably be inferred from what happened after 1995 that he had formed a different intention about his permanent home before he died.’ and ‘. . It is easier to show a change from one domicile of choice to another domicile of choice than it is to show a change to a domicile of choice from a domicile of origin.’
Mummery LJ said: ‘Positioned at the date of death in February 2003 the court must look back at the whole of the deceased’s life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard’s aphorism that ‘Life must be lived forwards, but can only be understood backwards’ resonates in the biographical data of domicile disputes.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales
This case cites:

• Cited – Inland Revenue Commissioners v Bullock CA ([1976] 1 WLR 1178)
  The court had to establish a domicile of choice for a taxpayer by reference to his intentions: ‘I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is . .
• Cited – In the Estate of Fuld, decd (No 3) ChD ([1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318)
  The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
  Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
• Cited – 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. . .
• 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 . .
• Cited – Aitchison v Dixon ((1870) LR 10 Eq Cas 589)
  The testator, William Allan, had been Lord Provost of Edinburgh and unmarried. When 40 he moved to England ‘for a wife’ and ‘had the good fortune to win the hand of a widow . . of considerable wealth and expectations’. They lived for a while in . .
• Cited – Atorney-General v Yule and Mercantile Bank of India ((1931) 145 LT 9)
  The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin. . .
• Cited – Forbes v Forbes ((1854) 18 Beav 552, (1854) Kay 341)
  General Forbes died. It became necessary to decide what was his domicile at the date of death. He had been born in Scotland, but then served for 35 years in India, before retirng to live in London.
  Held: The domicile in India was a domicile of . .
• Cited – Winans v Attorney-General HL ([1904] AC 287)
  A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
• Cited – Abraham v Attorney-General ([1934] P 17)
  . .
• Cited – Cordell v Second Clanfield Properties Ltd ([1969] 2 Ch 9)
  In a fast developing area of law, judges should acknowledge the value of ‘fertilisers of thought’: ‘argued law is tough law . . I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the . .
• Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA ([2002] 2 Lloyd’s Rep 293, Bailii, [2002] EWCA Civ 509, [2002] 2 All ER (Comm) 97)
  Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
• Cited – In re Grayan Building Services Ltd CA ([1995] Ch 241, [1995] 3 WLR 1)
  The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question.
  Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our . .
• Cited – G v G (Minors: Custody Appeal) HL ([1985] 1 WLR 647, [1985] 1 WLR 647, [1985] 2 All ER 225, Bailii, [1985] UKHL 13, [1985] FLR 894)
  The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
  Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
• Cited – AEI Rediffusion Music Ltd v Phonographic Performance Ltd CA (Gazette 24-Mar-99, Times 03-Mar-99, [1999] 1 WLR 1507, , [1999] EWCA Civ 834)
  The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .

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

• Cited – Gaines-Cooper v HM Revenue and Customs ChD (Bailii, [2007] EWHC 2617 (Ch))
  The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
• Cited – Barlow Clowes International Ltd and Others v Henwood CA (Bailii, [2008] EWCA Civ 577, Times 18-Jun-08)
  The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
• Cited – 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: 26 March 2017
Ref: 238704

The post Agulian and Another v Cyganik: CA 24 Feb 2006 appeared first on swarb.co.uk.

References: (1839) My Cr 442, [1839] EngR 1099, (1839) 4 My & Cr 442, (1839) 41 ER 171
Links: Commonlii
Coram: Cottenham LC
Ratio: B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested in the same person, and therefore B’s executors remained liable to pay the income as set out in the will.
This case cites:

• Appeal From – Cherry v Boultbee CA (, Commonlii, [1838] EngR 541, (1838) 2 Keen 319, (1838) 48 ER 651 (B))
  TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to . .

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

• Cited – In re Melton, Milk v Towers CA ([1918] 1 Ch 37)
  In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
• Explained – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA (Bailii, [2006] EWCA Civ 7, Times 20-Jan-06, [2006] BPIR 457, [2006] Ch 610, [2007] 1 BCLC 29, [2006] 2 WLR 1369, [2006] WTLR 705, [2006] BCC 233)
  A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
• Explained – In Re Peruvian Railway Construction Co Ltd ([1915] 2 Ch 144)
  William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
  Held: In the distribution of the company’s surplus assets the liquidator could . .
• Explained – Brazzill and Others v Willoughby and Others CA (Bailii, [2010] EWCA Civ 561, [2010] WLR (D) 140, WLRD)
  The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
• Considered – Mills and Others v HSBC Trustee (CI) Ltd and Others ChD (Bailii, [2009] EWHC 3377 (Ch))
  . .
• Restated – In re Akerman ChD ([1891] 3 Ch 212)
  The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
  Held: They were bound to bring them into account. Kekewich . .
• Applied – In Re Rhodesia Goldfields Ltd ChD ([1910] 1 Ch 239)
  Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
  Held: Payment of what was due to Partridge and his . .
• Applied – Picken v Lord Balfour of Burleigh CA ([1945] Ch 90)
  The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
  Held: The rule in Cherry v Boultbee . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 238732

The post Cherry v Boultbee: HL 22 Nov 1839 appeared first on swarb.co.uk.

References: [2006] EWHC 753 (Ch), Times 03-May-2006, [2006] 2 All ER 792, [2006] 1 WLR 1577
Links: Bailii
Coram: Lightman J
Ratio: The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having decided at conference ‘where a testator has made a will appointing partners in a firm as executors and the firm has subsequently converted to a limited liability partnership, applications for grants coming from members of the limited liability partnership will no longer be allowed. ‘
Held: Lightman J said ‘For testators adopting a clause in the terms of clause 2 of the Will the legal distinction between a solicitors’ partnership and a solicitors’ (confusingly named) limited liability partnership and between a profit sharing partner in a solicitors’ partnership and a profit sharing member of a limited liability partnership is likely totally to escape them, unless given a lesson in the law which they may well not follow. Even if they do grasp the distinction, they are likely to regard it as a distinction without any relevant difference for their purposes. ‘ Therefore: ‘upon the true construction of the Will probate should be granted to applicants who are profit sharing members of the LLP.’ However, only profit-sharing partners in a firm may be granted probate.
This case cites:

• Cited – In re Horgan ChD ([1971] P 50)
  The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors ‘who may act through any partner or partners of that firm or their successors in business at the date of my . .
• Cited – Oswald Hickson Collier and Co (a firm) v Carter Ruck HL ([1984] AC 720, [1984] 2 All ER 15)
  A firm is a partnership of two or more persons, and a one man practice is not a firm.
  Lord Denning MR said: ‘It was submitted by Mr Cullen that – as the relationship between a solicitor and his client is a fiduciary relationship – it would be . .
• Cited – Re Orwell’s Trust ChD ([1982] 1 WLR 1337)
  The term ‘firm’ may include a company: ‘Whilst the term ‘firm’ in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company.’ . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 240115

The post Rogers, Re In the Estate of: ChD 6 Apr 2006 appeared first on swarb.co.uk.

References: [1817] EWHC Ch J10
Links: Bailii
Ratio: The testator left a bequest in trust for such ‘benevolent purposes’ as the trustees might unanimously agree upon.
Held: The word ‘benevolent’ when coupled with another was not sufficient to restrict the trusts to charitable purposes and it failed.

Last Update: 26 March 2017
Ref: 241581

The post James and Another v Allen and others: ChD 30 Jun 1817 appeared first on swarb.co.uk.