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 19 cases, and was prepared on 19 May 2014. 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.
In re Bourke's Will Trusts; ChD 1980
In re Beaumont, Deceased; Martin -v- Midland Bank Trust Co Ltd; 1980
Ross -v- Caunters (a firm); ChD 1980
Re Grant's Will Trusts; ChD 1980
Jelley -v- Illife [1981] Fam 128; [1981] 2 All ER 29
1981
CA
Stephenson LJ, Griffiths LJ
Family, Wills and Probate Casemap

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
In re Cleaver dec'd, Cleaver -v- Insley; ChD 1981
In re Salmon (Deceased) [1981] Ch 167
1981

Wills and Probate Casemap

Inheritance (Provision for Family and Dependants) Act 1975
Escritt -v- Escritt [1982] 3 FLR 280
1981

Wills and Probate Casemap

Administration of Justice Act 1975 4
In re Dennis (Deceased); 1981
Re Flynn Deceased [1982] 1 WLR 310
1982
ChD
Slade J
Wills and Probate
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."
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."
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 Casemap
1 Citers
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 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."
Kourkgy -v- Lusher; 1983
Re Rapley, deceased [1983] 1 WLR 1069
1983
ChD
Judge Finlay QC
Wills and Probate Casemap

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.
Gartside -v- Sheffield Young & Ellis; 1983
Re Bunning, deceased; Bunning -v- Salmon; ChD 1984
Re Callaghan, deceased; 1984
Re Besterman, decd; CA 1984