key_keyChD2010
References: [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, [2010] WTLR 623
Links: Bailii
Coram: Briggs J
Ratio: 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 testator’s testamentary capacity.
Held: The will failed. When a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and make a contemporaneous record of his examination and findings. Though the terms of the will were rational, and the result of its dispositions might be fair, nevertheless, the burden on the objectors of establishing lack of capacity had been met: ‘the element of suspicion arising from the circumstances, although by no means overpowering, is sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of a rational will.’
This case cites:

• Cited – Kenward v Adams ChD (Times 29-Nov-75, [1975] CLY 3591)
  The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed . .
• Cited – In re Simpson Deceased; Schaniel and Another v Simpson and Others ChD ((1977) NLJ 487, (1997) SJ 121 224)
  Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however . .
• Cited – Re Moss, Larke v Nugus CA ([2000] WTLR 1033, (1979) CA p337)
  (Decided in approximately 1979) The signature of the testatrix, an elderly woman, was distinctly wobbly, the will contained a gift, as it was put by the trial judge, ‘in favour of persons on whom the testatrix is dependent’, and the executor, who . .
• Cited – Scammell and Another v Farmer ChD (Bailii, [2008] EWHC 1100 (Ch), [2008] WTLR 1261)
  A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
  Held: The 2005 Act had restated the law on capacity in Banks, but had . .
• 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 – 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 – Cattermole v Prisk ([2006] 1 FLR)
  Banks v Goodfellow was the appropriate starting and finishing point for consideration of mental capacity to make a will. . .
• 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 – Charles Harwood v Maria Baker PC ((1840) 3 Moores PCC 282, Commonlii, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117)
  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 . .
• Cited – Fuller v Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
  The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
  Held: The onus on the propounder of a will to show that it . .
• Cited – Buckenham v Dickinson ChD ([1997] CLY 4733, [2000] WTLR 1083)
  The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .

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

• Cited – Wharton v Bancroft and Others ChD (Bailii, [2011] EWHC 3250 (Ch))
  Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

(This list may be incomplete)

Last Update: 31 March 2017
Ref: 402542

The post Key and Another v Key and Others: ChD 5 Mar 2010 appeared first on swarb.co.uk.

References: [2015] EWCA Civ 797, [2016] 1 All ER 932, [2015] WTLR 1399, [2015] 2 FCR 547, [2015] Fam Law 1196, [2015] 2 FLR 1409
Links: Bailii
Coram: Arden, Rymer LJJ, Sir Colin Rimer
Ratio: The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal succeeded. The District Judge had made two ‘fundamental’ errors of principle, and these allowed the appeal court to re-evaluate the claim for itself: ‘he had held that the award should, in the light of the long estrangement and Mrs Ilott’s independent life and lack of expectation of benefit, be limited, but he had not identified what the award would have been without these factors and thus the reduction attributable to them; and ii) he had made his award of 50,000 pounds without knowing what the effect of it would be upon the benefits which Mrs Ilott and her family presently received.’
Setting aside the order of the District Judge, the Court made its own assessment of the proper award.
Arden LJ said: ‘In my judgment, what the court has to do is to balance the claims on the estate fairly. There is no doubt that, if the claimant for whom reasonable financial provision needs to be made is elderly or disabled and has extra living costs, consideration would have to be given to meeting those. In my judgment, the same applies to the case where a party has extra financial needs because she relies on state benefits, which must be preserved. Ms Reed submits that the provision of housing would not do this. I disagree. The provision of housing would enable her both to receive a capitalised sum and to keep her tax credits. If those benefits are not preserved then the result is that achieved by DJ Million’s order in this case: there is little or no financial provision for maintenance at all.
The claim of the appellant has to be balanced against that of the Charities but since they do not rely on any competing need they are not prejudiced by what may be a higher award than the court would otherwise need to make.
In my judgment, the right course is to make an award of the sum of 143,000 pounds, the cost of acquiring the Property, plus the reasonable expenses of acquiring it. That would remove the need to pay rent though some of that money may be required for meeting the expenses that she will have as owner. As Ms Stevens-Hoare submits, having the Property will enable her to raise capital (by equity release) when she needs further income in the future.
In addition, I would add to the award a further sum to provide for a very small additional income to supplement her state benefits without the necessity of an equity release. If my Lords agree, I would provide that she has an option, exercisable by notice in writing to the [executors] within two months of the date of this order (or within such longer period as the appellant and [they] may agree) to receive a capital sum not exceeding of andpound;20,000 out of the estate for this purpose. According to the current Duxbury tables in At a Glance for 2015/6, the sum 20,000 pounds would if invested give her 331 pounds net income per year for the rest of her life. This is not a large amount because of the factors which weigh against her claim, particularly the fact that she is an adult child living independently, Mrs Jackson’s testamentary wishes and to a small extent the appellant’s estrangement from Mrs Jackson.
The option may be exercised in part more than once provided that the total sum of 20,000 pounds is not thereby exceeded. I have expressed the provision of a capital sum as an option so that, if the award of a capital sum would result in the loss of benefits, she can if she wishes take a lesser sum, or (as she may prefer to do if she is advised that her benefits will not be prejudiced) she may take the lesser sum and spend it, and then exercise the option for an amount or amounts not exceeding the balance.’
Black LJ:
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales
This case cites:

• See Also – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
• Appeal From – Ilott v Mitson and Others FD ([2015] 1 FLR 291, Bailii, [2014] EWHC 542 (Fam))
  The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her andpound;50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
• Cited – 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 . .
• Cited – Re Dennis deceased ChD ([1981] 2 All ER 140)
  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 . .
• 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. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .

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

• Appeal from – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 550609

The post Ilott v Mitson and Others: CA 27 Jul 2015 appeared first on swarb.co.uk.

References: Gazette 16-Feb-1994, Times 03-Jan-1994, [1994] Ch 286, [1994] 3 WLR 67, [1994] 3 All ER 27, [1993] EWCA Civ 10
Links: Bailii
Coram: Lord Justice Nourse, Lord Justice Henry And Sir John May
Ratio: The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in comfortable circumstances, on a good income from two businesses.
Held: The claim failed. A past lack of maintenance could not to be relied on for claims from estates under the Act. The dependency on the deceased for a claimant based upon having been dependent upon the deceased must immediately precede the death. For such a claim there must shown be some special circumstance, perhaps a moral obligation of the deceased towards him, before the first question can be determined in his favour.
As to Re Coventry: ‘It was established by the decisions of Oliver J and this court in re Coventry decd. that, on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour. Although the decisions were in terms confined to the case of a son, the principle of them is applicable no less to the case of a daughter and, with developments in the structure of society, instances of its application in such cases may become more common. In that case Oliver J was of the opinion that financial provision was reasonably required for the applicant’s maintenance. But his application failed because the deceased owed him no moral or other obligation and no other special circumstance was shown.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975, Inheritance (Provision for Family and Dependants) Act 1975 3(1)(d)
Jurisdiction: England and Wales
This case cites:

• Explained – 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 . .
• Cited – Re Dennis deceased ChD ([1981] 2 All ER 140)
  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 . .
• Cited – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
• Cited – Re Callaghan, deceased ([1985] Fam 1, [1984] 3 All ER 790)
  An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council . .

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

• Cited – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 81244

The post Harlow v National Westminster Bank Plc and Others; in re Jennings Dec: CA 13 Dec 1993 appeared first on swarb.co.uk.

References: [2015] 1 FLR 291, [2014] EWHC 542 (Fam)
Links: Bailii
Coram: Parker J
Ratio: The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her andpound;50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had been estranged from her mother for many years.
Held: The appeal by the charities failed.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales
This case cites:

• See Also – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .

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

• Appeal From – 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)
  The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
  Held: The claimant’s appeal . .
• At First Instance – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 521976

The post Ilott v Mitson and Others: FD 3 Mar 2014 appeared first on swarb.co.uk.

References: Gazette 20-May-1998, Times 08-May-1998, Gazette 03-Jun-1998, [1998] EWCA Civ 764, [1998] 2 FLR 346
Links: Bailii
Coram: Lady Justice Butler-Sloss, Lord Justice Judge, Sir John Knox
Ratio: The adult daughter of the deceased claimed under the 1975 Act. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a development value six times its probate assessment, and, that being the case, there was a failure to make reasonable provision for another daughter who was in straitened circumstances.
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 that deceased wanted to benefit the child, and that assets had acquired substantial and unexpected value after death.
An adult child does not have to show that the deceased owed him or her a moral obligation or that there were other special circumstances in order to succeed under the Act; and in deciding whether the disposition of the deceased’s estate makes reasonable provision for the applicant, the trial judge is not exercising a discretion but making a value judgment based on his or her assessment of the factors contained in section 3(1) of the Act.
Sir John Knox said: ‘In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the Inheritance (Provision for Family and Dependants) Act 1975 requires the court to have regard. Some factors may be neutral but many will go into the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry … there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J not to be present in Re Coventry . . [The] argument that an adult child cannot make a successful application unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable financial provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry , or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court’s conclusion that there has been a failure to make reasonable financial provision but the use of the phrase ‘special circumstance’ does not advance the argument. The work ‘special’ means no more than what is needed to overcome the factors in the opposite scale.’
Butler-Sloss LJ said: ‘Accordingly while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.’ and ‘I do not, for my part, extract from the decisions in Re Coventry and Re Jennings, the degree of support for the defendants’ case that Mr Crawford has submitted. It is clear to me that the 1975 Act does not require, in an application under s 1(1)(c), that an adult child (whether son or daughter) has in all cases to show moral obligation or other special circumstance. But on facts similar to those in Re Coventry and even more so with the comparatively affluent applicant in Re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation. The judge expressly found that there was no moral obligation or responsibility to be found in this case.’
Judge LJ said: ‘The decision in Re Coventry was considered in Re Jennings, deceased, [1994] Ch 286, where Nourse LJ concluded that in the case of an application by an adult son of the deceased who was fit and able to work, and in work, some ‘special circumstance, typically a moral obligation’ was required. The application ‘failed because the deceased owed him no moral or other obligation and no other special circumstance was shown’. The use of the word ‘typically’ is revealing. Nourse LJ did not say ‘invariably’ or ‘necessarily’. If he had done so he would have been using language which does not appear among the statutory criteria. Accordingly, while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales
This case cites:

• Cited – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
• 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 . .
• Cited – Re Debenham deceased ([1986] 1 FLR 404)
  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 . .

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

• Cited – Re Pearce, Deceased, Pearce v Davies Pearce CA (Bailii, [1998] EWCA Civ 1097)
  The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
• Cited – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
• Cited – Espinosa v Bourke CA ([1999] 1 FLR 747)
  The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
• Cited – Garland v Morris and Another ChD (Bailii, [2007] EWHC 2 (Ch))
  The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
  Held: The claim failed. . .
• 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)
  The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
  Held: The claimant’s appeal . .
• Cited – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 144242

The post Snapes v Aram; Wade etc, In re Hancocks (Deceased): CA 1 May 1998 appeared first on swarb.co.uk.

References: [1979] 2 All ER 408, [1981] Ch 461
Coram: Oliver J
Ratio: 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 maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant’s maintenance has not been made.’ and as to applications by adult children: ‘I ought not to approach this application with any pre-conceived notion that there is some especially heavy burden on a male applicant of full age beyond that which must, as a practical matter, necessarily exist when a person who applies to be maintained by somebody else is already capable of adequately maintaining himself.’ and
and ‘It is not the purpose of the Act to provide legacies or awards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position. . . It cannot be enough to say ‘here is a son of the deceased: he is in necessitous circumstances: there is property of the deceased which could be made available to assist him but which is not available if the deceased’s dispositions stand; therefore those dispositions do not make reasonable provision for the applicant’ There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made.’
The court considered what was meant by ‘maintenance’: ‘There have been a number of cases under the Inheritance (Family Provision) Act 1938 previously in force, and also some cases from sister jurisdictions, which have dealt with the meaning of ‘maintenance.’ In particular, in this country there is In re E., decd. [1966] 1 W.L.R 709 in which Stamp J. said that the purpose was not to keep a person above the breadline but to provide reasonable maintenance in all the circumstances. If I may say so with respect, ‘breadline’ there would be more accurately described as ‘subsistence level.’ Then there was Millward v. Shenton [1972] 1 W.L.R. 711 in this court. I think I need only refer to one of the overseas reports, In re Duranceau [1952] 3 D.L.R. 714, 720, where, in somewhat poetic language, the court said that the question is: ‘Is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?’
What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales
This case cites:

• Disapproved – 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:

• Appeal from (Affirmed) – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
• 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. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
• Explained – 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 father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
• Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
  The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
• Cited – Re Dennis deceased ChD ([1981] 2 All ER 140)
  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 . .
• 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 – Garland v Morris and Another ChD (Bailii, [2007] EWHC 2 (Ch))
  The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
  Held: The claim failed. . .
• Cited – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
• Cited – In re Dennis (Deceased) ([1981] 2 All ER 140)
  The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
  Held: The claim failed. The payment of . .

(This list may be incomplete)
Leading Case
Last Update: 01 April 2017
Ref: 197022

The post In re Coventry dec’d: ChD 2 Jan 1979 appeared first on swarb.co.uk.

References: [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779
Links: Bailii
Coram: Sir Nicholas Wall P, Arden, Black LJJ
Ratio: The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and the charities (beneficiaries under the will) said that no payment should have been ordered at all.
Held: The claimant’s appeal succeeded, and the matter remitted for reconsideration as to quantum. The value judgment of a trial judge, who has undertaken the section 3 exercise and has reached a judgment on the evidence should not be lightly disturbed unless the conclusion reached is ‘plainly wrong’. The district judge here had asked himself the correct question, and it had been wrong to find that he had erred in law.
Arden LJ said: ‘The totemic phrase in section 2(1) of the 1975 Act is ‘reasonable financial provision’. This phrase has a constant meaning, but its application in any individual case must take account of the circumstances of the case and current social conditions and values. There were three notable value judgments by the District Judge in this case. In the first of these, the District Judge held in a passage already cited that the applicant was entitled to make her life with a partner of her choice and to have a family of her own. In the second of these, the District Judge held that it was reasonable for her to wish to remain at home for the time being rather than work (outside the home). In the third of these the District Judge held that families, such as those of the applicant and her husband, ‘were not all to be blamed for their lack of income which makes a claim for tax credits necessary and possible.’ These were evaluations for the District Judge to make in the circumstances of this case. In my judgment the conclusions of the District Judge cannot be said to be plainly wrong.
Indeed, these three value judgments made by the District Judge demonstrate how under the 1975 Act the court must make value judgments in order to arrive at a decision as to whether the provision made by a testatrix constituted reasonable financial provision. I am not concerned that a judge should be called on to make such judgments. It is a reality in the twenty-first century that judges are called upon to make judgments of this kind in different cases and in different circumstances. They must do so with such assistance as they can find in existing decided cases. If (as often happens) there are no decided cases, they must decide questions involving value judgments within four corners of the statutory framework and with the benefit of their own awareness and experience of society and social issues, and their own considered view of how such matters ought fairly to be decided in the society in which we live. It is worthy of note that there was no other way that the District Judge could have made the three value judgments discussed in this paragraph. Judges are not unaccountable for value judgments. Those value judgments can be reviewed on appeal . .’
Black LJ said: ‘A dispassionate study of each of the matters set out in section 3(1) will not provide the answer to the question whether the will makes reasonable financial provision for the applicant, no matter how thorough and careful it is. . . [S]ection 3 provides no guidance about the relative importance to be attached to each of the relevant criteria. So between the dispassionate study and the answer to the first question lies the value judgment to which the authorities have referred. It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts.’
Statutes: Inheritance (Provision for Family and Dependants) Act 1975 2(1) 3
Jurisdiction: England and Wales
This case cites:

• Cited – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
• Appeal from – H v Mitson and Others FD ([2010] 1 FLR 1613, Bailii, [2009] EWHC 3114 (Fam))
  . .
• Cited – Re Gregory (Deceased), Gregory v Goodenough CA ([1970] 1 WLR 1455)
  . .
• Cited – Cameron v Treasury Solicitor ([1996] 2 FLR 716)
  The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between . .
• 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. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a . .
• Cited – In re Dennis (Deceased) ([1981] 2 All ER 140)
  The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
  Held: The claim failed. The payment of . .
• Cited – Myers v Myers and Others; In the estate of Geoffrey Holt Myers (deceased) FD ([2004] EWHC 1944 (Fam), [2008] WTLR 851)
  The adult daughter claimed against her father’s estate. The claimant’s father had left his estate to his widow and the children that he had with her.
  Held: Munby J made an award under the Act to an adult child of the deceased, part of which . .
• Cited – Re Pearce (Deceased) CA (Gazette 04-Nov-98, [1998] 2 FLR 705)
  An adult child succeeded in a claim under the Act against his father’s estate, having worked on his fathers farm for many years and for very low pay against a promise that he would inherit the house on the father’s death. . .
• Cited – Espinosa v Bourke CA ([1999] 1 FLR 747)
  The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
• Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA (Bailii, [2005] EWCA Civ 1508, [2006] Ch 361, (2005-06) 8 ITELR 855, [2006] 1 FLR 745, [2006] Fam Law 263, [2006] 2 All ER 115, [2005] 2 WLR 481, [2005] 3 FCR 593, [2006] WTLR 29)
  The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
• Cited – Piglowska v Piglowski HL (Times 25-Jun-99, Gazette 07-Jul-99, Gazette 20-Oct-99, House of Lords, Bailii, [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FCR 481, [1999] 2 FLR 763, [1999] Fam Law 617)
  When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .

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

• See Also – Ilott v Mitson and Others FD ([2015] 1 FLR 291, Bailii, [2014] EWHC 542 (Fam))
  The claimant sought to appeal against a decision on quantum made under the 1975 Act. The court had awarded her andpound;50k in capital by way of maintenance from her mother’s estate, where the mother had left the estate to animal charities. She had . .
• Cited – Wright v Waters and Another ChD (Bailii, [2014] EWHC 3614 (Ch))
  The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her . .
• See Also – 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)
  The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
  Held: The claimant’s appeal . .
• First Appeal – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 431607

The post Ilott v Mitson and Others: CA 31 Mar 2011 appeared first on swarb.co.uk.

References: [1996] 2 FLR 716
Ratio: The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between them for the next 19 years, although they had remained in touch.
Held: The fact that she was in necessitous circumstances did not create any obligation on the deceased to provide for her from his estate. There was no other claimant and that his small estate passed as bona vacantia to the Crown did not alter the fact that their personal and financial relationship was long in the past. That the devolution of the estate to the Crown could not enhance the applicant’s claim and was a neutral factor, not relevant to the criteria to be taken into account under section 3 of the 1975 Act.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975 3
Jurisdiction: England and Wales
This case is cited by:

• Cited – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
• Cited – Garland v Morris and Another ChD (Bailii, [2007] EWHC 2 (Ch))
  The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
  Held: The claim failed. . .
• Cited – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 431726

The post Cameron v Treasury Solicitor: 1996 appeared first on swarb.co.uk.

References: [1981] 2 All ER 140
Coram: Browne-Wilkinson J
Ratio: The now deceased father had made lifetime gifts to the son. The son now faced substantial liabilities for capital transfer tax, and asked the court to provide for his from the estate under the 1975 Act.
Held: The claim failed. The payment of the applicant’s debts was not for his maintenance, because there was nothing to suggest that payment of those debts would do anything to help his future maintenance. Browne-Wilkinson J said: ‘the court is reluctant to make further provision for someone for whom large sums of money have been provided and which have been dissipated by him.’ It should ask whether there is ‘a case fit to go to trial’.
Browne-Wilkinson J said:’The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry (deceased) . . [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 In re Christie (deceased) . . [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 Dependents) Act 1975
Jurisdiction: England and Wales
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 . .
• Cited – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .

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

• Cited – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
• Cited – Garland v Morris and Another ChD (Bailii, [2007] EWHC 2 (Ch))
  The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
  Held: The claim failed. . .
• Cited – Ilott v The Blue Cross and Others SC (Bailii, [2017] UKSC 17, 2017] WLR(D) 185, Bailii Summary, WLRD, UKSC 2015/0203, SC, SC Summary, SC Video Summar, SC 12 Dec am, SC 12 Dec pm)
  The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

(This list may be incomplete)

Last Update: 01 April 2017
Ref: 431728

The post In re Dennis (Deceased): 1981 appeared first on swarb.co.uk.

References: [1677] EngR 45, (1677) Fin H 317, (1677) 23 ER 173 (B)
Links: Commonlii
Ratio: Action by infant beneficiary against father’s executor for account of estate.
Jurisdiction: England and Wales

Last Update: 02-Apr-17
Ref: 402865

The post John Edwards An Infant, By Richard Couchman His Guardian, Plaintiff; Robert Jorden, Defendant: 1677 appeared first on swarb.co.uk.

References: [1891] UKPC 28
Links: Bailii
Ratio: (Nova Scotia)
Jurisdiction: Commonwealth

Last Update: 03-Apr-17
Ref: 417744

The post Mcleod v Mcnab and Others: PC 17 Jul 1891 appeared first on swarb.co.uk.

References: 29800/04, [2006] ECHR 1203, 47 EHRR SE24, (2008) 47 EHRR SE24
Links: Bailii
Coram: J. Casadevall, P
Ratio: 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, and Tim’s mother was the wife of the testator’s youngest son. She died not long after Tim was born, and he was then adopted by his father in 1955.
Statutes: European Convention on Human Rights
This case cites:

• At Admn – Upton v National Westminster Bank Plc and others CA (Bailii, [2005] EWCA Civ 1479)
  The claimant said that he had been disinherited from his grandfather’s will being illegitimate. . .

(This list may be incomplete)
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 . .
• Cited – Re Erskine 1948 Trust ChD (Bailii, [2012] EWHC 732 (Ch), [2012] 3 All ER 532, [2012] 3 FCR 114, [2012] WTLR 953, [2013] Ch 135, [2012] Fam Law 809, 14 ITELR 890, [2012] WLR(D) 104, [2012] 3 WLR 913, [2012] 2 FLR 725)
  The trust was created in 1948, and provided gifts over which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .

(This list may be incomplete)

Last Update: 03 April 2017
Ref: 432711

The post Upton v United Kingdom: ECHR 11 Apr 2006 appeared first on swarb.co.uk.

References: [1787] UKHL 3 – Paton – 64
Links: Bailii
Ratio: Succession to Adjudications – Interest – Heritable or Moveable. – Whether the accruing interest in an adjudication belongs to the heir or executor? Held, in a question of compensation, that the interest accumulated and accruing, in an adjudication, is heritable, and belongs to the heir, and therefore did not fall under the husband’s jus mariti.
Jurisdiction: Scotland

Last Update: 04-Apr-17
Ref: 581016

The post Arthur Sinclair of Masilapatam, Esq v Margaret Young, Wife of James Gordon, Younger of Cairston, and George Andrew, Writer In Edinburgh, Her Curator: HL 20 Mar 1787 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
Jurisdiction: Human Rights
This case cites:

• Cited – Larkos v Cyprus ECHR (29515/95, (1999) 30 EHRR 597, Bailii, [1999] ECHR 11, , Bailii)
  The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .

(This list may be incomplete)
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 . .
• Cited – Hand and Another v George ChD (Bailii, [2017] EWHC 533 (Ch), WLRD, [2017] WLR(D) 198)
  The court was asked whether adopted children were grandchildren for the purposes of a will. . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 198704

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

References: [2011] ECHR 1575, 69498/01
Links: Bailii
Coram: Execution of the judgment
Ratio: 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 position as a biological child of his or her parents in all respects, including property rights. Any interpretation of a will should endeavour to ascertain the testator’s intention without overlooking the importance of interpreting the testamentary provision in compliance with domestic law and the Convention. In this case the applicant had been discriminated against when the High Court in Andorra had interpreted the testamentary provision of the grandmother’s will as including only the biological sons (violation of Article 14 read in conjunction with Article 8 of the Convention).
Statutes: European Convention on Human Rights 8 14
Jurisdiction: Human Rights
This case cites:

• Judgment – Pla and Puncernau v Andorra ECHR (69498/01, Worldlii, [2004] ECHR 334, Bailii)
  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 . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 519437

The post Pla and Puncernau v Andorra: ECHR 8 Aug 2011 appeared first on swarb.co.uk.

References: 16574/08 – Legal Summary, [2013] ECHR 427
Links: Bailii
Ratio: ECHR (Grand Chamber) Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a liaison between his father and a married woman who was already the mother of two children born of her marriage. In 1970 Mr and Mrs M. (the applicant’s mother and her husband) divided their property inter vivos (donation-partage) between their two legitimate children, whilst keeping a life interest in the property until their death. Mr M. died in 1981 and Mrs M. in 1994. In 1983 the tribunal de grande instance declared the applicant to be Mrs M.’s ‘illegitimate’ child. In 1998 the applicant brought proceedings against the two legitimate children in the tribunal de grande instance, seeking an abatement of the inter vivos division so that he could claim his share in his mother’s estate. At that time the Law of 3 January 1972 provided that children born of adultery could claim a share in their father or mother’s estate equal to half the share of a legitimate child. After the Court had found against France in 2000 in the case of Mazurek v. France, France enacted the Law of 3 December 2001 amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. In a judgment of September 2004, the tribunal de grande instance declared the action brought by the applicant admissible and upheld his claim on the merits. Following an appeal by the legitimate children, the court of appeal set aside the lower court’s judgment. The applicant unsuccessfully appealed on points of law.
In a judgment of 21 July 2011, a Chamber of the Court held, by five votes to two, that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 on the ground that the domestic courts, in applying the transitional provisions of the 1972 and 2001 Laws, had struck a proper balance between the long-established rights of Mr and Mrs M.’s legitimate children and the pecuniary interests of the applicant.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
(a) Applicability of Article 14 – It was purely on account of his status as a child ‘born of adultery’ that the applicant had been refused the right to request an abatement of the inter vivos division signed by his mother. But for that discriminatory ground, he would have had a right, enforceable under domestic law, in respect of the asset in question. Whilst inter vivos gifts had the immediate effect of transferring ownership, they did not become a division for inheritance purposes until the death of the donor (in 1994 in the present case). By that date the applicant’s filiation had been established. It followed that the applicant’s pecuniary interests fell within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions safeguarded by that provision. This was sufficient to render Article 14 of the Convention applicable.
(b) Merits – The applicant was deprived of a reserved portion and definitively placed in a different situation from that of the legitimate children regarding inheritance of their mother’s estate. That difference in treatment derived from the 2001 Law, which restricted application of the new inheritance rights of children ‘born of adultery’ to successions opened prior to 4 December 2001 that had not given rise to division before that date. In interpreting the transitional provision concerned, the Court of Cassation had considered that division for inheritance purposes had taken place in 1994, at the time of the applicant’s mother’s death, in line with long-standing case-law authority to the effect that in respect of inter vivos divisions the death of the donor triggered both the opening of the succession and the division. A legitimate child who had been omitted from the inter vivos division or not yet conceived when the deed was signed would not have been precluded from obtaining his or her reserved portion or share of the estate. It was therefore not disputed that the only reason for the difference in treatment suffered by the applicant was the fact that he had been born outside marriage.
The French State had amended the rules of inheritance law following the Mazurek judgment by repealing all the discriminatory provisions relating to children ‘born of adultery’. However, according to the Government, it was not possible to undermine rights acquired by third parties – in the instant case by the other heirs – and that justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date. The transitional provisions had accordingly been enacted in order to safeguard peaceful family relations by securing the rights acquired by beneficiaries where the estate had already been divided.
Subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half-sister had obtained property rights on the basis of the inter vivos division of 1970 by virtue of which their mother’s estate had passed to them on her death in 1994. On that basis the present case was distinguishable from that of Mazurek, in which the estate had not yet passed to the beneficiaries. However, ‘protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage’. In that connection the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there had been a statutory five-year time-period for bringing an action for abatement of an inter vivos division. Their half-brother had had until 1999 to claim his share in the estate and such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s ‘illegitimate’ son in a judgment delivered in 1983. That was sufficient to arouse justified doubts as to whether the estate had actually passed. On that point, in the particular circumstances of the present case, in which European case-law and the national legislative reforms showed a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage, the action brought by the applicant before the domestic courts in 1998 and dismissed in 2007 was a weighty factor when examining the proportionality of the difference in treatment. The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate. Consequently, the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate. Moreover, it appeared that, even in the eyes of the national authorities, the expectations of heirs who were the beneficiaries of an inter vivos division were not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible.
Accordingly, there had been no reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There had therefore been no objective and reasonable justification for the difference in treatment regarding the applicant.
That conclusion did not call into question the right of States to enact transitional provisions where they adopted a legislative reform with a view to complying with their obligations under Article 46 ss 1 of the Convention. However, whilst the essentially declaratory nature of the Court’s judgments left it up to the State to choose the means by which to erase the consequences of the violation, it should at the same time be pointed out that the adoption of general measures required the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments. That imposed an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court. That had not been done in the present case, however.
Conclusion: violation (unanimously).
Article 41: reserved.
(See Mazurek v. France, no. 34406/97, 1 February 2000, Information note no. 15)
Statutes: European Convention on Human Rights 14
Jurisdiction: Human Rights
This case is cited by:

• Legal Summary – Fabris v France ECHR (16574/08 – Grand Chamber Judgment, Bailii, [2013] ECHR 609)
  ECJ (Grand Chamber) States Parties are obliged to abide by the standards set in the Court’s case-law, even when they have not been involved in the particular disputes in respect of which the case-law was . .
• Cited – Hand and Another v George ChD (Bailii, [2017] EWHC 533 (Ch), WLRD, [2017] WLR(D) 198)
  The court was asked whether adopted children were grandchildren for the purposes of a will. . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 509228

The post Fabris v France [GC]: ECHR 7 Feb 2013 appeared first on swarb.co.uk.

stewart_sswpCA2011
References: [2011] EWCA Civ 907, [2011] UKHRR 1048
Links: Bailii
Coram: Rix LJ, Sir Henry Brooke, Dame Janet Smith
Ratio: The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained that the refusal violated her right not to be discriminated against.
Held: The prisoner’s appeal failed. The system did not amount to direct discrimination: ‘The issue at the heart of this case is not whether prisoners are wrongfully denied access to income support for reasons referable to their status as prisoners, but whether they are wrongfully denied access to a funeral payment for such reasons. The short answer is that they are not. If the status in question was not ‘prisoner’ tout seul, but ‘a prisoner who is not entitled to income support’ then the answer would be different. But being a prisoner tout seul did not exclude Ms Stewart from entitlement to all qualifying benefits, and it did not therefore exclude her from entitlement to a funeral payment. Being a prisoner was not ‘the reason why’ she was refused a funeral payment.’
The refusal was accepted to be indirect discrimination. Nevertheless it was justified, because the discrimination was not against prisoners alone, and any adjustment would ‘in turn be subjected to complaint from all the other excluded groups who would complain that they were being unlawfully discriminated against, and in my judgment a decision to that effect in this case would justly expose the court to the charge that it is trespassing in territory in an area of social policy that is properly the preserve of the legislature.’
Statutes: Public Health (Control of Disease) Act 1984 46(1), Social Security (Contributions and Benefits) Act 1992 138, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 7, Social Fund Maternity and Funeral Expenses (General) Regulations 2005 7, European Convention on Human Rights 14
This case cites:

• Cited – James v Eastleigh Borough Council HL ([1990] 3 WLR 55, [1990] 2 AC 751, [1990] 2 All ER 607, [1990] ICR 554, Bailii, [1990] UKHL 6, [1990] IRLR 288)
  The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
  Held: The 1975 Act directly discriminated between men and . .
• Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL (House of Lords, Bailii, [2003] UKHL 11, Times 04-Mar-03, [2003] ICR 337, Gazette 10-Jul-03, [2003] IRLR 285, [2003] NI 174, [2003] 2 All ER 26)
  The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
  Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
• Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL (Bailii, [2008] UKHL 63, HL, Times, [2008] 3 WLR 1023, [2009] 2 All ER 556, [2009] HRLR 5, [2009] PTSR 336, [2009] UKHRR 117, [2009] 1 AC 311)
  The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
• Cited – Stec and Others v United Kingdom ECHR ((2005) 41 EHRR SE 295, Bailii, [2005] ECHR 924)
  . .
• Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL (Bailii, [2005] UKHL 37, Times 27-May-05, House of Lords, [2005] 2 WLR 1369, [2005] UKHRR 1185, [2005] 4 All ER 545, [2006] 1 AC 173, [2005] HRLR 23, 18 BHRC 677)
  One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
• Cited – Humphreys v Revenue and Customs CA (Bailii, [2010] EWCA Civ 56, [2010] UKHRR 497, [2010] 1 FCR 630)
  The court was asked as to entitlement to child tax credit where parents were separated but shared the care of the children.
  Held: The discretion to be accorded to the legislature or executive is especially wide where the discrimination is . .
• Cited – Shelley v The United Kingdom ECHR (23800/06, Bailii, [2008] ECHR 108, (2008) 46 EHRR SE16)
  Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which . .
• Cited – Esfandiari and others v Secretary of State for Work and Pensions CA (Bailii, [2006] EWCA Civ 282)
  The claimant argued that the funeral benefits regime unlawfully discriminated against migrants because the 1987 Regulations did not permit payments to be made for a burial abroad, except as provided for by EU law.
  Held: The argument was . .
• Cited – Francis v Secretary of State for Work and Pensions CA (Bailii, [2005] EWCA Civ 1303, Times 17-Nov-05, [2006] 1 WLR 3202)
  The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 442416

The post Stewart v Secretary of State for Work and Pensions: CA 29 Jul 2011 appeared first on swarb.co.uk.

References: [1972] UKPC 21, [1973] AC 565, [1973] STC 85, [1973] 1 All ER 598, [1972] TR 297, [1973] 2 WLR 334
Links: Bailii
Coram: Reid, Morris of Borth-y-Gest, Dilhorne, Simon of Glaisdale LL, Sir Richard Wild
Ratio: New South Wales – The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of ‘the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration Act 1898-1954 of the State of New South Wales’. There was a claim for death duties on the settled property, and one of the issues was whether the clause contained ‘a trust . . . to take effect after [the deceased person’s] death’ within section 102(2)(a) of the Stamp Duties Act 1920-1959.
Held: The next of kin were to be determined at the settlor’s death, not at the date of the settlement, and death duties were payable accordingly.
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 . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 444438

The post Falkiner and Another v The Commissioner of Stamp Duties: PC 7 Nov 1972 appeared first on swarb.co.uk.

References: [2017] EWHC 533 (Ch), [2017] WLR(D) 198
Links: Bailii, WLRD
Coram: Rose J
Ratio: The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not entitled to inherit the part of their father’s estate that derived from the will. The court had to respect the claimants’ Convention right under article 14 in conjunction with article 8 of the Convention not to be discriminated against by the application of a legislative provision which caused the ambiguous reference in the testator’s will to his grandchildren to be construed as excluding them as his adopted grandchildren: ‘to apply the HRA in combination with the wording of the will is not, in my judgment, truly a retrospective application of the HRA. Following the coming into force of the HRA, if the question of whether a beneficiary in the will has children or not arises for consideration, that question must be addressed having regard to the HRA as well as having regard to the wording of the will. Under domestic legislation, the answer is that the adopted children are not included. But that must now be read in a way which is compliant with the rights that adopted children have not to be discriminated against by domestic legislation because of their adopted status.’
Statutes: European Convention of Human Rights 8 14, Adoption of Children Act 1926, Adoption of Children Act 1949, Adoption Act 1976, Adoption and Children Act 2002
This case cites:

• Cited – Marckx v Belgium ECHR (6833/74, (1979) 2 EHRR 330, Bailii, [1979] ECHR 2)
  The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
• Cited – Larkos v Cyprus ECHR (29515/95, (1999) 30 EHRR 597, Bailii, [1999] ECHR 11, , Bailii)
  The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
• Cited – Mazurek v France ECHR (34406/97, Bailii, [2000] ECHR 48, (2006) 42 EHRR 9)
  ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial . .
• Cited – Wilson v First County Trust (2) CA (Times 16-May-01, Gazette 14-Jun-01, Bailii, [2002] QB 74, [2001] EWCA Civ 633)
  Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
• Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
  The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
• Cited – Pla and Puncernau v Andorra ECHR (69498/01, Worldlii, [2004] ECHR 334, Bailii)
  A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
• Cited – Fabris v France [GC] ECHR (16574/08 – Legal Summary, Bailii, [2013] ECHR 427)
  ECHR (Grand Chamber) Article 14
  Discrimination
  Difference in treatment of legitimate and illegitimate children for succession purposes: violation
  Facts – The applicant was born in 1943 of a . .
• Cited – Secretary of State for Social Security v Tunnicliffe CA ([1991] 2 All ER 712)
  Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner . .
• Cited – In re McKerr (Northern Ireland) HL (Bailii, [2004] 1 WLR 807, Times 12-Mar-04, House of Lords, [2004] UKHL 12, Gazette 01-Apr-04, [2004] 2 All ER 409, [2004] UKHRR 385, [2004] NI 212, 17 BHRC 68, [2004] Lloyd’s Rep Med 263, [2004] HRLR 26)
  The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
• Cited – Horsham Properties Group Ltd v Clark and Another ChD (Bailii, [2008] EWHC 2327 (Ch), Times)
  The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
• Cited – Horncastle and Others, Regina v SC (Times, Bailii, [2009] UKSC 14, [2010] UKHRR 1, [2010] 1 Cr App R 17, [2010] 2 WLR 47, [2009] WLR (D) 358, WLRD, [2010] HRLR 12, [2010] 2 All ER 359, [2010] 2 AC 373, Bailii Summary, UKSC 2009/0073, SC Summary, SC)
  Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
• Cited – Re Erskine 1948 Trust ChD (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 . .
• Cited – Abbott v Minister for Lands PC ([1895] AC 425, Bailii, [1895] UKPC 17)
  (from the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .

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

Last Update: 05-Apr-17
Ref: 581328

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References: [1788] UKHL 3 – Paton – 101
Links: Bailii
Ratio: Succession – Fiar – Infeftment – Dispensation Clause – Prescription. – A father conveyed his estates to his heir male, whom failing to his eldest daughter. The heir male, after the death of the father, succeeded, but died without issue; having, previous to his death, conveyed the estates to a remote relation of the same name: Held, that as fiar, he was entitled so to convey the estates, notwithstanding the destination over in favour of the daughter. Objection to sasine, that the dispensation clause, granted by the Crown, making infeftment on one part of the lands good for the whole was inept, these lands being held of different superiors. Objection repelled, prescription having run upon the title. Affirmed in the House of Lords, without prejudice to any challenge appearing on the face of the sasine of the lands of Kirkbryde; said reservation being of consent of parties.
Jurisdiction: Scotland

Last Update: 05-Apr-17
Ref: 581001

The post Miss Jane Whitefoord, Only Surviving Child of The Deceased Bryce Whitefoord v James Whitefoord, Esq: HL 15 Mar 1788 appeared first on swarb.co.uk.