References: [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
Links: Bailii
Coram: Mr Mark Herbert QC
Ratio: 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 beneficary’s death, all impediments to inheritance by adopted children had been removed by statute.
Held: The assorted Adoption Acts were limited so as to exclude any effect on the situation. But for the Human Rights issue, the clause would be interpreted on the basis of the law as at the date of the settlement, and: ‘the ECtHR has an emphatic aversion to discrimination against illegitimate and adopted children. But in the context of the present case this aversion is not easy to apply directly. In the first place the Convention became part of English law only in 2000. The question of retrospectivity therefore arises : how does the Convention affect the construction of a definition enacted almost 75 years before the Convention became part of English law? Second, even if the Convention affects the construction of a statute, to what extent does it affect the construction of a private-law disposition which incorporates a statutory definition? ‘ Though the ECHR had recognised such a right as legitimate in individual cases, those case concerned provisions by statute, not those by individuals.
By 1948 the legal framework for adoption had been established by the 1926 Act, and section 5 expressly enacted that adoption had no effect to confer inheritance rights on adopted children unless a contrary intention appears. That was the state of English law when the settlement came to be made in 1948. Seeing that there was no express contrary provision in that settlement, it follows that the use of the defined phrase ‘statutory next of kin’ did not include adopted children.
Statutes: Adoption of Children Act 1926 5, Adoption Act 1950, Adoption Act 1976, Administration of Estates Act 1925 46(1)(v) 50(1), Interpretation Act 1978 20(2), European Convention on Human Rights, Human Rights Act 1998
Jurisdiction: England and Wales
This case cites:

• Cited – In re Hooper’s Settlement, Phillips v Lake CA ([1943] Ch 116)
  A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof . .
• Cited – In re Gansloser’s Will Trusts CA ([1952] Ch 30)
  A 1929 will created a trust in favour of the testator’s widow’s ‘relatives’.
  Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the . .
• Cited – Falkiner and Another v The Commissioner of Stamp Duties PC (Bailii, [1972] UKPC 21, [1973] AC 565, [1973] STC 85, [1973] 1 All ER 598, [1972] TR 297, [1973] 2 WLR 334)
  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 . .
• Cited – In re Bourke’s Will Trusts ChD ([1980] 1 WLR 539)
  The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs . .
• 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 – 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, . .
• Cited – Brauer v Germany ECHR (3545/04, Bailii, [2010] ECHR 74)
  Just satisfaction – friendly settlement . .
• Cited – Secretary of State for Social Security v Tunnicliffe CA ([1991] 2 All ER 712)
  Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
• 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 – Brauer v Germany ECHR (3545/04 (Translation), Bailii, [2009] ECHR 795)
  The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .
• Cited – Tailby v Official Receiver HL ((1888) 13 App Cas 523)
  A creditor can create for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence. Lord Macnaghten: ‘It was admitted by the learned counsel for the respondent, that a trader may assign his . .
• Cited – In re Ellenborough, Towry Law v Burne ChD ([1903] 1 Ch 697)
  The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is . .
• Cited – 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)
This case is cited by:

• Cited – Hand and Another v George ChD (Bailii, [2017] EWHC 533 (Ch), WLRD, [2017] WLR(D) 198)
  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 . .

(This list may be incomplete)

Last Update: 04 April 2017
Ref: 466372

The post Re Erskine 1948 Trust: ChD 29 Mar 2012 appeared first on swarb.co.uk.

wright_gaterChD2011
References: [2011] EWHC 2881 (Ch), 14 ITELR 603, [2012] 1 WLR 802, [2012] STC 255, [2011] STI 3431, [2012] WTLR 549
Links: Bailii
Coram: Norris J
Ratio: The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting might constitute a ‘benefit’ for the purposes of the 1958 Act, but it was an issue to be decided from case to case. In this case the original proposal would cross the line between variation and resettlement, and the child at three could not now be predicted to be in need of protection at the age of majority. However a variety of the proposal was acceptable and was approved.
Statutes: Administration of Estates Act 1925 47, Trustee Act 1925 31 32
This case cites:

• Cited – In Re Bernstein ChD (Unreported 2008, [2008] EWHC 3454(?))
  The testator had left andpound;100,000 legacies to his grandchildren at 25. In order to achieve a tax saving. The court was asked to approve an arrangement under which the individual legacies were replaced by interest in a fund in which the widow . .
• Cited – Re Cohen’s Will Trusts ChD ([1959] 1 WLR 165)
  An application was made for the variation of trust provisions on behalf of a child beneficiary.
  Held: Where the outcome of the arrangement cannot be predicted with certainty then the Court should be prepared to take on behalf of a minor, a . .
• Cited – In Re Druce’s Settlement Trusts ChD ([1962] 1 WLR 363)
  Russell J discussed the difficulties of trustees when making an application on behalf of a beneficiary of the trust: ‘The application was made not by a beneficiary but by the trustees. This is a disadvantage, particularly in a case such as the . .
• Cited – In re T’s Settlement Trusts ChD ([1964] Ch 158)
  Wilberforce J was asked to approve a variation of a trust in favour of a child under the 1958 Act, to restrict her from getting her full entitlement on her attaining the age of 21 because she was said to be ‘alarmingly immature and irresponsible as . .
• Cited – Re Van Gruisen’s Will Trusts ChD ([1964] 1 WLR 449)
  The court considered the extent of its discretion to vary the provisions of a trust.
  Held: The Court should ask whether, if the persons on whose behalf consent is to be given were themselves competent and reasonable, the bargain is one that . .
• Cited – Re Weston’s Settlement Trusts CA ([1969] 1 Ch 223, [1968] 3 All ER 338)
  The settlor applied for the approval of an arrangement for the export of his trust to Jersey, where he had gone to live. The court considered its powers under the 1968 Act.
  Held: The court should not consider merely the financial benefit to . .
• Cited – in Re Wallace’s Settlements ChD ([1968] 1 WLR 71)
  A judge considering an application to vary trusts should approach it with ‘a fair cautious and enquiring mind’. . .
• Cited – In Re Remnant ChD ([1970] 1 Ch 560)
  Approval was sought of a proposed deed varying trusts created in the will.
  Held: The testator’s intention would be defeated by the proposed arrangement which involved the deletion of the forfeiture provision dependant upon the beneficiary’s . .
• Cited – In Re Holt’s Settlement ChD ([1969] 1 Ch 100)
  An application was made to vary the terms of a trust in favour of children.
  Held: The court was ready to receive evidence from a mother whose children were due to become entitled to funds at the age of 21 that she believed it most important . .
• Cited – In Re Irving ((1975) 66 DLR (3d) 387))
  The (Canadian) court considered an application to vary a trust on behalf of a child, and asked itself: ‘Would a prudent adult, motivated by intelligent self-interest, and after sustained consideration of the proposed trusts and powers and the . .
• Cited – Weston v Inland Revenue Commissioners ChD (Times 29-Nov-00, Gazette 11-Jan-01)
  The taxpayer owned land upon which he ran a caravan park. Income was generated by pitch fees, and from commissions taken from the sales of caravans from one pitch owner to the next. The Commissioners asserted that the income was to be treated as . .
• Cited – Ridgwell and others v Ridgwell and others; In Re RGST Settlement Trusts ChD (Bailii, [2007] EWHC 2666 (Ch))
  Funds were held upon trust for X with the remainder (in default of exercise of the power of appointment) to his three children aged 7,5 and 2. It was beneficial for tax purposes to insert a life interest in favour of X’s surviving spouse (thereby . .

(This list may be incomplete)

Last Update: 05 April 2017
Ref: 448121

The post Wright and Another v Gater and Others: ChD 7 Nov 2011 appeared first on swarb.co.uk.

References: [2012] EWCA Civ 6
Links: Bailii
Coram: Arden, Black, Kitchin LJJ
Ratio: The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my judgment inherently improbable given the antiquity of the Howard name. On this basis, there is no obligation to take up the name if an application for a Royal Licence is made but not granted within the year, and accordingly there is no ‘refusal’ or ‘neglect’ to take up the Howard name for the purposes of the forfeiture provision.’
This case cites:

• Cited – Bromley v Tyron ([1952] AC 265)
  Lord Simonds LC said: ‘Then it was said that even so the words are uncertain in content, for it is purely a question of degree what constitutes the ‘bulk’. I cannot accept this contention. I think that according to the ordinary use of language the . .
• Cited – Howard’s Will Trusts, Leven and Bradley ChD ([1961] Ch 507, [1961] 2 All ER 413)
  It is undesirable that different judges of the same division should speak with different voices. A judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that . .
• Cited – Grant v Grant ((1870) LR 5 CP 727)
  Blackburn J said: ‘The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were . .
• Cited – Re Neeld deceased, Carpenter v Inigo-Jones CA ([1962] Ch 643)
  The court considerd the interpretation of a Names and Arms clause in a will under which the testator directed that any person becoming entitled to a particular gift under the will must: ‘take upon himself and use upon all occasions the surname of . .
• Cited – Austen v Collins ((1886) LT 903)
  A condition in a will that a beneficary ‘take steps’ means that the heir must make every endeavour. . .
• Cited – Re Hughes ([1943] Ch 296)
  . .
• Cited – Re Quinton Dick ([1926] Ch 992)
  . .
• Cited – Re Croxon ([1904] 1 Ch 252)
  A Royal Licence to take up a coat of arms specified by the testator could not be obtained because it could not be shown that the testator was entitled to those particular arms. . .

(This list may be incomplete)

Last Update: 05 April 2017
Ref: 450322

The post Howard v Howard-Lawson Bt: CA 18 Jan 2012 appeared first on swarb.co.uk.

References: [1908] 6 CLR 40
Coram: Griffith CJ, Barton J, Higgins J
Ratio: (High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.’
Higgins J (dissenting) said that no one could have property in another human being, live or dead.
Jurisdiction: Australia
This case is cited by:

• Considered – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA (Times 15-Jul-96, Gazette 29-Aug-96, [1997] 1 WLR 596, Bailii, [1996] EWCA Civ 1301, (1997) 33 BMLR 146,, [1997] 1 FLR 598, [1997] 8 Med LR 357, [1996] 4 All ER 474, [1997] Fam Law 326, [1997] 2 FCR 651)
  A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
• Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD ([2004] EWHC 644 (QB), Bailii, Times 12-Apr-04, (2004) 77 BMLR 145, [2004] 2 FLR 365, [2004] 3 FCR 324, [2004] Fam Law 501, [2005] 2 WLR 358, [2005] Lloyd’s Rep Med 1, [2005] QB 50)
  Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
  
• Cited – Yearworth and others v North Bristol NHS Trust CA (Bailii, [2009] EWCA Civ 37, Times, WLRD, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118)
  The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

(This list may be incomplete)
Leading Case
Last Update: 06 April 2017
Ref: 195012

The post Doodeward v Spence: 1908 appeared first on swarb.co.uk.

References: [1908] P 353
Coram: Sir Gorell Barnes P
Ratio: Two sisters made mirror codicils but each then executed that of the other sister.
Held: The dispositions contained in them were invalid.
Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She meant to sign a totally different document. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were cross-codicils by two sisters. But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document’
Statutes: Wills Act 1837
Jurisdiction: England and Wales
This case is cited by:

• Cited – Marley v Rawlings and Another ChD (Bailii, [2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477)
  A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
  Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
• Cited – Marley v Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
  A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

(This list may be incomplete)

Last Update: 06 April 2017
Ref: 428465

The post Re Meyer: 1908 appeared first on swarb.co.uk.

References: [1861] EngR 228, (1861) 30 Beav 300, (1861) 54 ER 904
Links: Commonlii
Ratio: A testator in 1541, devised all the freehold property ‘I am seised or etititled in feesimple’ in strict settlement. He afterwards devised all the copyholds ‘I am or at the time of my death shall be possessed of’ upon trusts corresponding with those of his freeholds, The testator died in 1861. Held, that freeholds acquirecl after the date of the will passed by the devise.
Jurisdiction: England and Wales

Last Update: 07 April 2017
Ref: 283989

The post Lord Lilford v Powys Keck: 24 Jan 1861 appeared first on swarb.co.uk.

References: [1966] 1 WLR 709
Coram: Stamp J
Ratio: Possible receipt by a family member in receipt of state support greater than the testator could sensibly provide may be an understandable reason why it was reasonable for the deceased not to make financial provision for that family member. The purpose of the 1938 Act was not to keep a person above the breadline but to provide reasonable maintenance in all the circumstances.
Statutes: Inheritance (Family Provision) Act 1938
Jurisdiction: England and Wales
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: 07 April 2017
Ref: 581302

The post In re E, deceased: 1966 appeared first on swarb.co.uk.

References: [2013] EWCA Civ 201
Links: Bailii
Coram: Mummery LJ
Ratio: Renewed application for permission to appeal against rejection of claim against estate that property held in the name of the deceased in fact belonged to the claimant.

Last Update: 07 April 2017
Ref: 472877

The post Jabeen v Lloyds TSB Bank Plc: CA 15 Jan 2013 appeared first on swarb.co.uk.

References: [2010] EWHC 3727 (Ch)
Links: Bailii
Coram: Elleray QC J
Ratio: The deceased had died intestate in 1985, and the administration concluded only lately by the Official Solicitor, who now sought guidance from the court on the administration of the estate, given that he had been party to eight customary polygamous (but lawful) marriages, with associated numbers of children.
Statutes: Judicial Trustee Act 1896, Administration of Estates Act 1925 46(1)
Jurisdiction: England and Wales

Last Update: 08-Apr-17
Ref: 440435

The post The Official Solicitor To The Senior Courts v Yemoh and Others: ChD 15 Dec 2010 appeared first on swarb.co.uk.

References: [2004] EWCA Civ 987, [2004] WTLR 1183.
Links: Bailii
Coram: Lord Justice Mummery, Lord Justice Waller Lord Justice Jonathan Parker
Ratio: The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being a partner in part of the farm. That partnership had later foundered. The earlier assurance was not irrevocable, and no estoppel arose.
Jurisdiction: England and Wales
This case cites:

• Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA (Bailii, [2002] EWCA Civ 159, [2003] 1 P & CR 100, [2003] 1 FCR 501)
  The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
• Cited – Ramsden v Dyson HL ([1866] LR 1 HL 129, [1866] 12 Jur NS 506)
  The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
• Cited – Wayling v Jones CA (Gazette 02-Aug-93, [1993] 69 P&CR 170)
  The plaintiff and defendant were in a homosexual reationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .

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

• Cited – Thorner v Curtis and others ChD (Bailii, [2007] EWHC 2422 (Ch))
  The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
• Cited – Thorner v Major and others CA ((2008-09) 11 ITELR 344, [2008] 2 FCR 435, Bailii, [2008] EWCA Civ 732, [2008] WTLR 1289, [2009] 3 All ER 945)
  The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
  Held: . .
• Cited – Thorner v Major and others HL (Bailii, [2009] UKHL 18, Times, HL, [2009] 13 EG 142, [2009] WTLR 71, [2009] Fam Law 583, [2009] 2 FLR 405, [2009] 1 WLR 776)
  The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
• Cited – Gill v Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
  The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .

(This list may be incomplete)

Last Update: 08 April 2017
Ref: 199572

The post Uglow v Uglow and others: CA 27 Jul 2004 appeared first on swarb.co.uk.

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

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

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

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

(This list may be incomplete)
Jurisdiction: Australia

Last Update: 10-Apr-17
Ref: 374776

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

References: [1954] ScotCS CSIH_1, 1954 SLT 222, 1954 SC 136
Links: Bailii
Ratio: Whether letter amounted to a will
Jurisdiction: Scotland

Last Update: 10-Apr-17
Ref: 279430

The post Draper v Thomason: SCS 26 Mar 1954 appeared first on swarb.co.uk.

References: [1954] UKPC 14
Links: Bailii
Ratio: (Ceylon)
Jurisdiction: Commonwealth

Last Update: 11-Apr-17
Ref: 445876

The post Muriel Amarasekera Nee Wijesinghe v Hettiaratchige Dona Adliet Ratnayake and Others: PC 22 Mar 1954 appeared first on swarb.co.uk.

References: [1824] EngR 70, (1824) 2 Add 239, (1824) 162 ER 281
Links: Commonlii
Coram: Sir John Nicholl
Ratio: A will and codicil pronounced for; and three intermediate codicils, propounded on behalf of legatees in the same, held to be invalid. In a Court of Probate, what instruments the testator meant to operate as, and compose, his will, is to be collected from all the circumstances of the case. Sir John Nicholl said ‘In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation . . in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator.’
Jurisdiction: England and Wales
This case is cited by:

• Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC ([1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, Bailii, [1967] UKPC 23)
  (New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
• Cited – Parkinson v Fawdon ChD (Bailii, [2009] EWHC 1953 (Ch))
  The deceased and his partner had made mirror wills. On the second death it appeared that a named residuary beneficiary did not exist. The claimant, with a similar name said it had intended to name him. The court considered whether it could be . .
• Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
  The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

(This list may be incomplete)

Last Update: 11 April 2017
Ref: 327061

The post Greenough v Martin: 1824 appeared first on swarb.co.uk.

References: [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, UKSC 2012/0057
Links: Bailii, Bailii Summary, WLRD, SC Summary, SC
Coram: Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
Ratio: A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties disputed whether the will have been validly executed, and in particular whether a rectification could be ordered under the 1982 Act where the original document did not itself meet the requirements of the 1837 Act.
Held: The wife’s appeal succeeded. A rectification could be and was ordered. The solicitor’s error in handing over the wrong will for execution was a ‘clerical error’ within section 20(1)(a).
‘save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared). ‘
As to wholesale rectification: ‘As a general proposition, there may be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification. However, I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’s power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled – and it would also lead to uncertainty. ‘
Lord Neuberger of Abbotsbury PSC said: ‘During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases . .
When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn, at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989 , per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.’
Statutes: Wills Act 1837 9, Administration of Justice Act 1982 2091)(a)
Jurisdiction: England and Wales
This case cites:

• At First Instance – Marley v Rawlings and Another ChD (Bailii, [2011] EWHC 161 (Ch), [2011] 1 WLR 2146, [2011] 2 All ER 103, [2011] Fam Law 477)
  A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
  Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
• Cited – Prenn v Simmonds HL ([1971] 1 WLR 1381, [1971] 3 All ER 237)
  Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
• Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL ([1976] 1 WLR 989, [1976] 2 Lloyd’s Rep 621, [1976] 3 All ER 570)
  In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
• Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL (Times 06-Mar-01, Gazette 12-Apr-01, House of Lords, Bailii, [2001] UKHL 8, [2001] 1 All ER 961, [2001] 2 WLR 735, [2002] 1 AC 251, [2001] ICR 337, [2001] IRLR 292, [2001] Emp LR 359)
  A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
• Cited – Rainy Sky Sa and Others v Kookmin Bank SC (Bailii, [2011] UKSC 50, [2011] 1 WLR 2900, Bailii Summary, SC Summary, SC, UKSC 2010/0127, [2011] CILL 3105, 138 Con LR 1, [2012] 1 All ER (Comm) 1, [2012] ICR 1)
  The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
  Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
• Appeal from – Marley v Rawlings and Another CA ([2012] 2 FLR 556, Bailii, [2012] EWCA Civ 61, [2013] 2 WLR 205, [2013] Ch 271, [2012] WTLR 639, 14 ITELR 843, [2012] Fam Law 403, [2012] 4 All ER 630)
  Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed the will intended for the other. After Mr Rawling died, the family disputed whether he had made a will. Mrs Rawling applied for rectification of . .
• Cited – Boyes v Cook CA ((1880) 14 Ch D 53, (1880) 49 LJCh 350)
  When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James . .
• Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL ([1983] FSR 512, [1982] RPC 183)
  The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, . .
• Cited – Arbuthnott v Fagan CA ([1995] CLC 1396, [1996] 1 Lloyd’s Re Insurance Law Reports 135)
  The court considered the proper approach to construction of the terms in a contract. Sir Thomas Bingham MR said: ‘Courts will never construe words in a vacuum. To a greater or lesser extent, depending on the subject matter, they will wish to be . .
• Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
  The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
  Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
• Cited – Harter v Harter ([1873] LR 3 P & D 11)
  . .
• Cited – In the Goods of Oswald ((1874) LR 3 P&D 162)
  The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’ . .
• Cited – In the Goods of Hunt ((1875) LR 3 P&D 250)
  Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
  Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would . .
• Cited – In the Goods of Boehm ([1891] P 247)
  It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the . .
• Cited – Re Meyer ([1908] P 353)
  Two sisters made mirror codicils but each then executed that of the other sister.
  Held: The dispositions contained in them were invalid.
  Sir Gorell Barnes P said: ‘But it is quite clear that this lady, though her signature is on the . .
• Cited – In re Hawksley’s Settlement; Black v Tidy ([1934] Ch 384)
  A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
  Held: Neither feature was sufficient to effect a complete revocation . .
• Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC ([1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, Bailii, [1967] UKPC 23)
  (New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
• Cited – In re Reynette-James dec’d, Wightman v ChD ([1976] 1 WLR 16, [1975] All ER 3 1037)
  A court does not have power to rectify a will. . .
• Cited – Re Butlin’s Settlement Trusts ([1976] Ch 251)
  Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
  Held: The court could rectify the . .
• Cited – Agip SpA v Navigazione Alta Italia SpA, ‘The Nai Genova’ CA ([1984] 1 Lloyds Law Reports 353)
  Rectification was sought of an escalation clause in a charter-party which provided for a base figure in US dollars to be increased by reference to Italian inflation. The plaintiffs claimed that an accord had been reached that the base figure should . .
• Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
  The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
  Held: Investors having once . .
• Cited – Re Williams Deceased, Wiles v Madgin ChD ([1985] 1 WLR 905, [1985] 1 All ER 964)
  A testator writing out his own will can make a clerical error just as much as someone else writing out a will for him. ‘In passing, I note that there is no claim for rectification in the present case. It was suggested in the course of argument that . .
• Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
  Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
• Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL (Bailii, [2009] UKHL 38, Times 02-Jul-09, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P & CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223, WLRD, HL)
  The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
  Held: . .
• Cited – Bell v Georgiou and Another ChD (Bailii, [2002] EWHC 1080 (Ch), [2002] WTLR 1105)
  Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes . .

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

• Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD (Bailii, [2014] EWHC 2577 (Ch))
  The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .
• Cited – Richards v Wood CA (Bailii, [2014] EWCA Civ 327)
  The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
  Held: ‘unless there is a secure tenancy the statutory right to buy . .
• Main Judgment – Marley v Rawlings and Another (2) SC (Bailii Summary, SCBlog, [2014] WLR(D) 402, Bailii, [2014] UKSC 51, [2015] 1 AC 157, [2014] Fam Law 1682, [2014] WTLR 1511, [2014] 3 WLR 1015, [2014] 4 All ER 619, [2014] 5 Costs LR 905, Bailli Summary, WLRD)
  The parties had disputed the validity of a will, and the successful wife of the deceased argued that her costs should be paid by those challenging the will rather than from the estate.
  Held: The solicitors (or their insurers) who had made the . .
• Cited – Guthrie v Morel and Others ChD (Bailii, [2015] EWHC 3172 (Ch))
  The will had failed clearly to identify a property in Spain the subject of a bequest.
  Held: Summary judgment was given. ‘It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the . .
• Cited – Jump and Another v Lister and Another ChD (Bailii, [2016] EWHC 2160 (Ch))
  Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .

(This list may be incomplete)

Last Update: 11 April 2017
Ref: 520062

The post Marley v Rawlings and Another: SC 22 Jan 2014 appeared first on swarb.co.uk.

References: [1934] Ch 384
Coram: Luxmoore J
Ratio: A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
Held: Neither feature was sufficient to effect a complete revocation of the earlier will. What was conclusive in that regard was that the second will was wholly inconsistent with the first. An implied revocation was found because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.
Jurisdiction: England and Wales
This case is cited by:

• Approved – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC ([1967] 3 All ER 915, [1968] 3 WLR 1153, [1969] 1 AC 514, Bailii, [1967] UKPC 23)
  (New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
• Cited – Marley v Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
  A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

(This list may be incomplete)

Last Update: 11 April 2017
Ref: 536793

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

References: [2005] WTLR 851, [2004] EWHC 1944 (Fam)
Links: Bailii
Coram: Munvy J
Ratio: The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
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)
Jurisdiction: England and Wales

Last Update: 13-Apr-17
Ref: 581090

The post Myers v Myers and Orhers: FD 3 Aug 2004 appeared first on swarb.co.uk.

References: [2013] EW Misc 10 (CC)
Links: Bailii
Coram: Judge Behrens
Ratio: (Leeds County Court) The claimant, daughter of the deceased, challenged transactions entered into by him for the benefit of the respondent, and the will created by him.

Last Update: 13 April 2017
Ref: 515108

The post Pearce v Beverley: Misc 13 Aug 2013 appeared first on swarb.co.uk.

References: [1864] EngR 546, (1864) 3 H & C 239, (1864) 159 ER 521
Links: Commonlii
Ratio:
Jurisdiction: England and Wales

Last Update: 16-Apr-17
Ref: 282260

The post The Attorney General v Lord Lilford: 8 Jun 1864 appeared first on swarb.co.uk.

References: [2016] NICh 17
Links: Bailii
Coram: Horner J
Ratio:
Statutes: Inheritance (Provision for Family and Dependants) (NI) Order 1979
Jurisdiction: Northern Ireland

Last Update: 16-Apr-17
Ref: 581358

The post Moffat v Moffat: ChNI 23 Nov 2016 appeared first on swarb.co.uk.