References: [2017] NICh 1
Links: Bailii
Coram: Horner J
Ratio:
Jurisdiction: Northern Ireland

Last Update: 16-Apr-17
Ref: 581360

The post Moffat v Moffat: ChNI 5 Jan 2017 appeared first on swarb.co.uk.

References: [1865] EngR 787, (1865) 35 Beav 77, (1865) 55 ER 823
Links: Commonlii
Ratio:
Jurisdiction: England and Wales

Last Update: 17-Apr-17
Ref: 281699

The post Lord Lilford v Powys Keck: 18 Dec 1865 appeared first on swarb.co.uk.

References: (1862) 30 Beav 295, [1862] EngR 347, (1862) 54 ER 902
Links: Commonlii
Ratio:
This case is cited by:

• Cited – Hayward v Jackson ChD (Bailii, Times 27-Feb-03, [2003] EWHC 253 (Ch), Gazette 03-Apr-03)
  The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
  Held: In this case there was no explicit gift over in the . .

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

Last Update: 17-Apr-17
Ref: 179720

The post Lord Lilford v Powys Keck (No 1): 1862 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′.
Jurisdiction: Australia
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)

Last Update: 16 April 2017
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: [1677] EngR 77, (1677) Fin H 303, (1677) 23 ER 166 (B)
Links: Commonlii
Ratio: Where a Legatee shall not abate in Proportion, there being not sufficient to discharge all the Legacies.
Jurisdiction: England and Wales

Last Update: 20-Apr-17
Ref: 402897

The post Smallbone v Philip Brace, Executor of Diana Reresby, And Thomas Crompton Esq: 1677 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.’
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: 20 April 2017
Ref: 550609

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

References: [2013] EWHC 4079 (Ch)
Links: Bailii
Coram: Barling J
Ratio: It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof was required from the party making an allegation of forgery, albeit that the civil standard viz the balance of probabilities still applied. Applying those principles, the story behind the proposed will was not credible, and ‘I have without hesitation concluded that in the light of all the evidence Naseem did not sign the Will and that her signature on that document is a forgery.’
This case cites:

• Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD ([1964] 1 WLR 451, [1964] 1 All ER 771)
  Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’ . .
• Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL (Independent 17-Jan-96, [1996] AC 563, [1996] 1 FLR 80, Bailii, [1995] UKHL 16, [1996] Fam Law 74, [1996] 1 FCR 509, [1996] 2 WLR 8, [1996] 1 All ER 1)
  Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
• Cited – Fuller v Strum ChD (Gazette 08-Feb-01, Times 14-Feb-01, [2001] WTLR 677)
  Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that . .
• Cited – Vacciana v Herod ([2005] EWHC 711 (Ch))
  . .

(This list may be incomplete)

Last Update: 20 April 2017
Ref: 519347

The post Ali Haider v Syed: ChD 19 Dec 2013 appeared first on swarb.co.uk.

References: [2005] EWHC 711 (Ch)
Coram: Blackburne J
Ratio:
This case is cited by:

• Cited – Ali Haider v Syed ChD (Bailii, [2013] EWHC 4079 (Ch))
  It was alleged that the signature on the deceased’s will was a forgery.
  Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .

(This list may be incomplete)

Last Update: 20 April 2017
Ref: 519361

The post Vacciana v Herod: 2005 appeared first on swarb.co.uk.

References: [1964] 1 WLR 451, [1964] 1 All ER 771
Coram: Ungoed-Thomas J
Ratio: Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’
This case is cited by:

• Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL (Independent 17-Jan-96, [1996] AC 563, [1996] 1 FLR 80, Bailii, [1995] UKHL 16, [1996] Fam Law 74, [1996] 1 FCR 509, [1996] 2 WLR 8, [1996] 1 All ER 1)
  Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
• Cited – Ali Haider v Syed ChD (Bailii, [2013] EWHC 4079 (Ch))
  It was alleged that the signature on the deceased’s will was a forgery.
  Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .

(This list may be incomplete)

Last Update: 20 April 2017
Ref: 519362

The post In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964 appeared first on swarb.co.uk.

References: [1943] Ch 116
Ratio: 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 intestate and without having married’. It was argued that this meant the persons at the death of the settlor who were entitled under the statutes in force at the same time.
Held: The argument failed. Under section 50(2) of the 1925 Act 1925, it meant the persons at the death of the settlor (in 1941) who were entitled under the statutes in force immediately before the commencement of the 1925 Act.
Statutes: Administration of Estates Act 1925 50(2)
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: 20 April 2017
Ref: 519434

The post In re Hooper’s Settlement, Phillips v Lake: CA 1943 appeared first on swarb.co.uk.

References: [1952] Ch 30
Coram: Lord Evershed MR
Ratio: 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 beneficiaries are to be ascertained at the death of the person in question, but also found an exception to the principle, applicable here, holding that the relatives were to be ascertained at the testator’s death. That exception resulted in both the law and the facts being ascertained at the death of the testator, before the death of the widow whose relatives were beneficiaries. It also resulted in the facts being ascertained at 1929 under pre-1926 law, a statute of King Charles II.
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: 20 April 2017
Ref: 519435

The post In re Gansloser’s Will Trusts: CA 1952 appeared first on swarb.co.uk.

References: [1980] 1 WLR 539
Coram: Slade J
Ratio: 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 and surviving issue’.
Held: The heirs were to be ascertained in accordance with pre-1926 law by virtue of section 132 of the 1925 Act. It was accepted that ‘issue’ (construed to mean children in the context) were to be ascertained in accordance with the law at the date of the testator’s death in 1943 (though it was not suggested that there were any illegitimate children born after 1969 who might have made a claim). Also, the classes of heirs and issue were in each case to be ascertained at the death of each half-sibling (1958 and 1969 respectively), and not at the date of the widow’s death in 1971.
Statutes: Law of Property Act 1925 132
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: 20 April 2017
Ref: 519436

The post In re Bourke’s Will Trusts: ChD 1980 appeared first on swarb.co.uk.

References: [2010] EWCA Civ 27, [2010] WTLR 941
Links: Bailii
Coram: Maurice Kay, Rimer LJJ, Sir Paul Kennedy
Ratio:
Jurisdiction: England and Wales

Last Update: 21-Apr-17
Ref: 396599

The post Booth v Booth and Others: CA 5 Feb 2010 appeared first on swarb.co.uk.

References: [1817] EngR 585, (1817) 2 Phill 416, (1817) 161 ER 1186
Links: Commonlii
Coram: Sir John Nicholl
Ratio: 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.’
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 – 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)
Jurisdiction: England and Wales

Last Update: 22-Apr-17
Ref: 333435

The post Methuen v Methuen: 23 Jun 1817 appeared first on swarb.co.uk.

References: 34406/97, [2000] ECHR 48, (2006) 42 EHRR 9
Links: Bailii
Ratio: 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 award – domestic proceedings; Costs and expenses partial award – Convention proceedings
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)
Jurisdiction: Human Rights

Last Update: 23-Apr-17
Ref: 165807

The post Mazurek v France: ECHR 1 Feb 2000 appeared first on swarb.co.uk.

References: Times 01-Feb-2000, Gazette 10-Feb-2000
Ratio: A mother who had given up work to stay at home and care for her daughter who had been awarded substantial damages for injury, was capable of being dependent upon her daughter when that daughter died. She was accordingly a person who could make a claim against the daughters estate under the Act. The daughter’s resources had contributed substantially to the mothers living expenses, that had not been for valuable consideration, and she had, even if through the Court of Protection, assumed some responsibility for her mother’s upkeep.
Statutes: Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction: England and Wales

Last Update: 25 April 2017
Ref: 78505

The post Bouette v Rose: CA 1 Feb 2000 appeared first on swarb.co.uk.

References: Times 27-Feb-2003, [2003] EWHC 253 (Ch), Gazette 03-Apr-2003
Links: Bailii
Coram: Mr Justice Lawrence Collins
Ratio: The claimant had been given an option in the will to purchase land from the estate, but the price was not fixed before it expired. The executors asserted that the option had lapsed.
Held: In this case there was no explicit gift over in the will if the option lapsed, and no other detriment was suffered by the delay. The delay had been caused by the Capital Taxes Office’s failure to agree a value for the land. Time should not be taken to be of the essence, and the option remained exercisable. There was no distinction to be made here in interpreting wills between a gift and an option.
This case cites:

• Cited – Lord Lilford v Powys Keck (No 1) ((1862) 30 Beav 295, [1862] EngR 347, Commonlii, (1862) 54 ER 902)
  . .
• Cited – Talbot v Talbot ChD ([1968] Ch 1)
  A testamentary option was given relating to two farms which provided for the price to be the ‘reasonable valuation’ of the farms.
  Held: This option was enforceable and the court ordered an enquiry as to what was a reasonable price for the . .
• Cited – Taylor v Popham ((1782) 1 Bro CC 168, 28 ER 1059 LC)
  PT, in his lifetime granted two annuities to his son and there being subsisting accounts between them by his will he gave him an annuity of andpound;600 on condition that he should within three months execute a release of all demands on his estate. . .
• Cited – In re Parkard ([1920] 1 Ch 596)
  . .
• Cited – In re Goodwin; Ainslie v Goodwin ChD ([1924] 2 Ch 26, [1924] 93 LJ Ch 331, [1924] 130 LT 822, [1924] 68 SJ 478)
  Request on condition – Annuity to Wife if smaller annuity under deed released within six months of testator’s death – estate encumbered – neither annuity paid to widow during her life – Death of widow without exercising realease – release by her . .
• Cited – In re Goldsmith ([1947] Ch 339)
  The testator had directed his trustees to hold his freehold house upon trust, after the death of his wife, for a Mr Bingham, but subject to the payment of andpound;800 by him to his trustees within six months of his death to form part of his . .
• Cited – Powell v Rawle ((1874) 18 Eq 243)
  A legacy was given to the testator’s daughter on the ‘express condition that if the said bequest be not duly claimed by my said daughter within the space of three calendar months next after my decease, that then the said bequest shall lapse, and the . .
• Cited – Brooke v Garrod ((1857) 3 K & J 608, (1857) 2 De G & J 62, [1857] EngR 4 (B), Commonlii)
  The testator directed his trustees to offer all his real estate to his brother at the price of andpound;2,500, but if he should not, within one calendar month after the death, signify his desire to accept the real estate at that price, or should . .
• Wrongly decided – In re Avard (dec’d) ([1948] Ch 43, [1948] Ch 43)
  . .

(This list may be incomplete)

Last Update: 26 April 2017
Ref: 179584

The post Hayward v Jackson: ChD 18 Feb 2003 appeared first on swarb.co.uk.

References: [1950] 1 All ER 143, [1950] Ch 226
Coram: Roxburgh J
Ratio: The court considered whether a trust was charitable.
Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was charitable, or whether the gift was one under which the capital was immediately distributable among the objects, in which case the gift was not a charity.
This case cites:

• Cited – The Attorney General v Price (Commonlii, [1810] EngR 575, (1810) 17 Ves Jun 371, (1810) 34 ER 143)
  Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling . .

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

• Appeal from – In re Scarisbrick’s Will Trusts, Cockshott v Public Trustee CA ([1951] 1 All ER 822 CA, [1951] Ch 622)
  The court was asked whether a trusts for poor persons within a restricted category, the testator’s descendants, not meeting the usual requirement that the benefits be available to a wider section of the community, may be held charitable.
  Held: . .

(This list may be incomplete)

Last Update: 26 April 2017
Ref: 181256

The post Scarisbrick’s Will Trusts, In re: ChD 1950 appeared first on swarb.co.uk.

References: [1951] 1 All ER 822 CA, [1951] Ch 622
Coram: Jenkins LJ
Ratio: The court was asked whether a trusts for poor persons within a restricted category, the testator’s descendants, not meeting the usual requirement that the benefits be available to a wider section of the community, may be held charitable.
Held: Such a trust could be charitable.
The dividing line between a charitable trust and a private trust ‘depended on whether as a matter of construction the gift was for the relief of poverty amongst a particular description of poor people [charitable] or was merely a gift to particular poor persons, the relief of poverty among them being the motive of the gift [private]’ The fact that the gift took the form of a perpetual trust would no doubt indicate that the intention of the donor could not have been to confer private benefits on particular people whose possible necessities he had in mind ; but the fact that the capital of the gift was to be distributed at once did not necessarily show that the gift was a private trust.

Jenkins LJ set out five general propositions upon whether a trust for the relief of poverty was charitable, saying: (i) It is a general rule that a trust or gift in order to be charitable in the legal sense must be for the benefit of the public or some section of the public; . . (ii) An aggregate of individuals ascertained by reference to some personal tie (e.g. of blood or contract) such as the relations of a particular individual, the members of a particular family, the employees of a particular firm, the members of a particular association, does not amount to the public or a section thereof for the purposes of the general rule; . . (in) It follows that according to the general rule above stated a trust or gift under which the beneficiaries or potential beneficiaries are confined (that is an important word) to some aggregate of individuals ascertained as above is not legally charitable even though its purposes are such that it would have been legally charitable if the range of potential beneficiaries had extended to the public at large or a section thereof (e.g. an educational trust confined as in Re Compton to the lawful descendants of three named persons, or, as in Oppenhein v. Tobacco Securities Trust Co., Ltd. to the children of employees of former employees of a particular company); . . (iv) There is, however, an exception to the general rule in that trusts or gifts for the relief of poverty have been held to be charitable even though they are limited in their application to some aggregate of individuals ascertained as above, and are, therefore, not trusts or gifts for the benefit of the public or a section thereof. This exception operates whether the personal tie is one of blood (as in the numerous so-called ‘poor relations’ cases, to some of which I will presently refer) or of contract . .’
This case cites:

• Appeal from – Scarisbrick’s Will Trusts, In re ChD ([1950] 1 All ER 143, [1950] Ch 226)
  The court considered whether a trust was charitable.
  Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was . .

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

• Approved – Dingle v Turner and Others HL (lip, [1972] 2 WLR 523, Bailii, [1972] UKHL 2, [1972] AC 601)
  The testator left part of his property on charitable trusts for the relief of the poverty of ‘the poor employees’ of a company. The appellant argued that it was not a charitable gift, and that the gift failed.
  Held: The intention of the gift . .

(This list may be incomplete)

Last Update: 26 April 2017
Ref: 181257

The post In re Scarisbrick’s Will Trusts, Cockshott v Public Trustee: CA 1951 appeared first on swarb.co.uk.

References: [1959] 1 All ER 552, [1959] 1 WLR 284
Coram: Viscount Simonds
Ratio: Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend of Mrs Wells. Mr Nye was appointed sole executor. Mrs Wells left the bulk of her large estate to him. The only evidence of her instructions for the will was that given by Mr Nye, in whose offices the will and codicil were executed. On the death of Mrs Wells probate of the will and codicil was obtained by Mr Nye.
Lt Col Wintle, as assignee of a person entitled in the event of the intestacy of Mrs Wells, attacked the validity of the will and codicil. He did not do so by advancing a positive case, such as lack of capacity, undue influence or fraud. Instead, he put Mr Nye to proof that Mrs Wells knew and approved the contents of her will and codicil. The case was tried by Barnard J with a jury, who found in favour of the will and codicil. By a majority the Court of Appeal dismissed the appeal brought on the ground that the judge had misdirected the jury. In the House of Lords Col Wintle appeared in person.
Held: The appeal succeeded, on the strict ground of a misdirection to the jury by the trial judge. Directions were given for the revocation of the will so far as it related to the gift of residue to the solicitor.
The court ought not to pronounce in favour of the validity of a will where the circumstances under which the will was prepared raised a well grounded suspicion that it did not express the testator’s mind. The court must be vigilant and jealous in circumstances in which a person who has prepared – or, in the vernacular, has ‘had a hand’ in the preparation of – a will under which he or she takes a benefit and seeks to admit it to probate. Viscount Simonds said: ‘It is not the law that in no circumstances can a solicitor or other person who has prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed’.
This case cites:

• Cited – Barry v Butlin PC ((1838) 2 Moores PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
  The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

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

• Cited – Ewing v Bennett CA (Bailii, [1998] EWCA Civ 342)
  The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
  Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
• Cited – Thompson and others v Thompson and others FdNI (Bailii, [2003] NIFam 3, GIRF3864)
  The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
  Held: There was clear evidence that the testator, whilst changeable, . .
• Cited – Robert James Walker v Geo H Medlicott and Son (a Firm) CA (Times 25-Nov-98, Bailii, [1998] EWCA Civ 1806, [1999] 1 All ER)
  The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
  Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
• Cited – Boudh v Boudh and Another CA (Bailii, [2007] EWCA Civ 302)
  . .

(This list may be incomplete)

Last Update: 26 April 2017
Ref: 181902

The post Wintle v Nye: HL 1959 appeared first on swarb.co.uk.