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Wills and Probate - 1980- 1984

Wills and Probate. Includes Inheritance Provision cases. See also Inheritance Tax, Equity and Trusts Law.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 18 cases, and was prepared on 06 June 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
Re Grant's Will Trusts [1980] 1 WLR 360
1980
ChD
Vinelott J
Trusts, Wills and Probate
1 Cites
1 Citers
The deceased left property to the Labour Party property committee. Held: A trust created by making a gift to the members of an unincorporated assoication as at the date of the gift can be wound up only if under the rules, the members could, at any time, resolve to terminate the trust and distribute the fund to themselves. The gift therefore failed. It could not be construed as a gift to existing members (i.e. it did not fall within category (1) of Neville Estates Ltd v Madden), and that in order to fall within category (2) it was essential that the members of the association for the time being should be free to dispose of it in any way they thought fit, including distributing it amongst themselves.
In re Beaumont, Deceased; Martin -v- Midland Bank Trust Co Ltd [1980] 1 Ch 444; [1980] 1 All ER 266
1980

Robert Megarry VC
Wills and Probate, Family Casemap

The words in the section 'immediately before' in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place at the time of the death. In this case a short stay in hospital prior to death is not sufficient to prevent the claim. "The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word 'immediately' in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.
The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this, rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word 'immediately' plainly confines the court to the basis of the arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended and the state of affairs under it."
Inheritance (Provision for Family and Defendants) Act 1975 1
Ross -v- Caunters (a firm); ChD 1980
Jelley -v- Illife [1981] Fam 128; [1981] 2 All ER 29
1981
CA
Stephenson LJ, Griffiths LJ
Family, Wills and Probate

1 Citers
The court referred to the case of In re Beaumont and continued: "In considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal illness." and "Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money's worth towards the reasonable needs of the plaintiff on a settled basis or arrangement which either was still in force immediately before the deceased's death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement." Griffiths LJ: "The words 'immediately before the death of the deceased' in section (1)(1)(e) cannot be construed literally as applying to the de facto situation at death, but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend, the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them."
Inheritance (Provision for Family and Dependants) Act 1975 1
Escritt -v- Escritt [1982] 3 FLR 280
1981

Wills and Probate
1 Citers
Administration of Justice Act 1975 4
In re Salmon (Deceased) [1981] Ch 167
1981

Wills and Probate Casemap
1 Citers
Inheritance (Provision for Family and Dependants) Act 1975
In re Dennis (Deceased); 1981
In re Cleaver decd, Cleaver -v- Insley; ChD 1981
Re Flynn [1982] 1 WLR 310
1982
ChD
Slade J
Wills and Probate Casemap
1 Cites
1 Citers
The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval. An application to strike out a challenge to a codicil on the grounds that the claim disclosed no cause of action. The court considered the effect of delay on a challenge to the validity of a will, and the effect of the alleged inability of the testator to read the will. Held: Any invalidity arose from the lack of testamentary capacity, and not from any want of knowledge and approval. The challenge failed.
Slade J described the position in law: "The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions."
Re Orwell's Trust [1982] 1 WLR 1337
1982
ChD
Vinelott J
Wills and Probate, Legal Professions, Company Casemap
1 Citers
The term "firm" may include a company: "Whilst the term 'firm' in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company."
Re Flynn Deceased [1982] 1 WLR 310
1982
ChD
Slade J
Wills and Probate Casemap
1 Cites

An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval. Held: There was no prior authority supporting the case that delay in institution might warrant the striking out of a probate claim. The issues fell to be decided by reference to the facts alleged in the pleadings. Slade J said: "The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions." and "After an action of this nature has been started, he submitted, the court is under a duty to investigate the propriety or otherwise of the order under which the relevant grant was obtained, no matter how extreme the delay. The court, in his submission, is sitting as a court of conscience concerned with the sanctity of probate, so that it must allow the validity of the grant of probate to be investigated at whatever date the challenge may be made, unless there are other grounds, apart from questions of delay, upon which it is obvious that the action must, in due course, fail."
In re D (J) [1982] 2 WLR 373; [1982] 2 All ER 37; [1982] Ch 237
1982
ChD
Sir Robert Megarry VC
Wills and Probate, Health

The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will. Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a will should not be executed pending an appeal was wrong in principle. The court laid down the principles upon which it should act. A letter of offer was taken into account on the question of costs.
Mental Health Act 1959 100(4) 102(1) 103(1)(dd)
Re Rapley, deceased [1983] 1 WLR 1069
1983
ChD
Judge Finlay QC
Wills and Probate

The deceased was an apprentice with Ellerman City Lines. He was discharged from one ship on 7 October 1960 and joined another of his employer's ships on 29 November. He attempted to make a privileged will on 22 October when, as was common ground at the trial, he had not yet been notified by the shipping company when and where he was to join his next ship. Held. Judge Finlay QC distinguished earlier cases saying that the deceased was not "at sea" on 22 October.
Kourkgy -v- Lusher (1983) 4 FLR 65; 12 Fam Law 86
1983

Wills and Probate, Family
The deaceased and the applicant had lived together for about ten years. In the last few days before the death, they parted in circumstances which suggested that the separation would be permanent. Held: An application for provision from the estate failed. The deceased had abandoned his assumption of financial responsibility for the applicant.
Inheritance (Provision for Family and Dependants) Act 1975
Gartside -v- Sheffield Young & Ellis [1983] NZLR 37
1983

Cooke J
Professional Negligence, Commonwealth, Wills and Probate

1 Citers
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: "To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor's professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills."
Re Bunning, deceased [1984] Ch 480
1984

Vinelott J
Wills and Probate, Family
1 Citers
Re Callaghan, deceased [1985] Fam 1; [1984] 3 All ER 790
1984

Booth J
Family, Wills and Probate

An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of 15,000 to enable him and his wife to avoid the burden of taking on a mortgage of 13,000 on the purchase of their council house at a most advantageous price. "I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased's intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff's needs." and he made that provision by way of a lump sum: "That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance." The claimant had demonstrated a need: "the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application."
Inheritance (Provision for Family and dependants) Act 1975
Re Besterman, decd [1984] Ch 458
1984
CA
Oliver LJ
Wills and Probate, Family Casemap
1 Citers
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. "In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable' is nowhere mentioned, although the parties' financial needs - which have been construed to mean `reasonable requirements' - constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard' and the overriding consideration is what is `reasonable' in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention."
Inheritance (Provision for Family and Dependants) Act 1975 2

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