Case Law/Statues Flashcards
1
Q
Case law Donatio Moris Causa - Three requirements
A
Cain V Moon 1986
2
Q
Case law Donatio Moris Causa - in contemplation death must be impending/imminent from a known cause but need not be immediate - Held
A
Re Craven Estates 1 1937
3
Q
Case law Donatio Moris Causa - in contemplation death must be impending but need not be immediate - not Held
A
King V Dubrey 2015
4
Q
Case law Donatio Moris Causa- Conditional of Death - Held
A
Gardner V parker 1818
5
Q
Case law Donatio Moris Causa- Conditional of Death - Recovered - not held
A
Beaumont v Ewbank 1902
6
Q
Case law Donatio Moris Causa must part with Gift - Held
A
Woodward V Woodard
7
Q
Case law Donatio Moris Causa must part with Gift - not Held
A
Reddel v Dobree 1839
8
Q
Case law Donatio Moris Causa must part with Gift docs - Held
A
Birch V Treasury Solicitor 1950
9
Q
Case law Donatio Moris Causa must part with Gift to recipient - Not Held
A
Mills V Shield 1948
10
Q
Case law Life Assurance/Pension not part of estate if nominations exist
A
Re Flavell 1883
11
Q
Case law Capacity
A
Banks V Goodfellow 1870 & MCA 2005 section 1, 1 / 2 .1 & 3.1/3.3
12
Q
Case law Banks V Goodfellow still good law - Held
A
Scammell V Farmer - Testatrix had died before MCA 2005 came into force
Re Walker2014 confirmed MCA 2005 not intended to replace BvG but compliment it
13
Q
Case law No requirement for Testator to have a perfectly balanced mind - Motivated by frivolous or bad motive
A
Fuller V Strum 2002
14
Q
Case law incoherent/confused on names/address of beneficiaries - Burden of proof testator had capacity - not Held
A
Wood V Smith 1992
15
Q
Case law Extent of property owned /Value not held
A
Schrader V Schrader 2013
16
Q
Case law Moral claims /Testamentary freedom - Held
A
Boughton v Knight 1873
17
Q
Case law Inheritance (provisions for Family and Dependents) act 1975
A
I(PFD)A 1975
18
Q
Case law Capacity - T did not have capacity held 1
A
In The estate of Park 1954 - elderly large gift given to new wife
19
Q
Case law Capacity - T had capacity -Held 1
A
Ewing V Bennett 2001 - being deaf and in the early stages of dementia did not affect capacity
20
Q
Case law Capacity - T did not have capacity -Held 2
A
Sharp V Adam 2006 - Suffering from Severe MS had crossed an Imprecise divide and therefore lacked capacity
21
Q
Case law Capacity - T did not have capacity - Held 2
A
Key V Key 2010 - Will executed days after wife of 65 years passed - Greif caused a temporary lack of capacity affirmed in re Wilson 2013
22
Q
Case law Lucid interval- T had capacity - held 1
A
Cartwright V Cartwright -1793 hand written will no evidence of lack of capacity in wording.
23
Q
Case law lucid Interval - T did not have capacity
A
Richards V Allen 2000 - Instructions given by someone else(the sole beneficiary) the day it was executed others found her to be confused therefore not plausible to have ben done in a lucid moment
24
Q
Case law Lucid Interval - T had capacity - held 2
A
Simon V Byford 2014 - Evidence showed she meet the conditions of Banks V Goodfellow and therefore had capacity.
25
Case law Insane Delusions - Will Valid 1
Banks V Goodfellow 1870 - Whilst the deceased held a delusion they were being molested by evil spirits it had no effect on the gifts so will was held to be valid
26
Case law Insane Delusions - Will Invalid -1
Dew V Clark 1826 - Testator excluded only daughter evidence showed an irrational aversion from birth including not seeing them at all for first 3 years of their life - The irrational aversion clearly affect how the will was made
27
Case law Insane Delusions - Will Invalid 2
Kastic V Chaplin and Others 2007 - two prev wills leaving entire estate to son - revoked by wills made in 88 & 89 leaving entire significant estate to the conservatives party - His delusion was that only the conservatives party could save the country from dark forces and his son was part of the dark forces - Both will revoked early will held to be valid
28
Case law Insane Delusions - Will Invalid 3
Re Richie 2009 Left entire estate to charity- was suffering from a form of OCD claimed sons were stealing from her and violent towards her and daughters never visited gave no help - denied by all Judge deemed the allegations were delusions .
29
Case law Insane Delusions - Will Valid 2
Ramsey V Ramsey 2005 - Mother of 7 2008 will made following a stroke - One child was care giver but the relationship had deteriorated - Will gave 50% to one Daughter described as the most caring and the other 50% between the other 6 - with full reasons given in 2007 diagnosis of moderate to serve dementia was made - but evidence from the solicitor who drafted will satisfied the judge that the requirement is BvG were met and there was rational basis for the beliefs even if they were unfounded/unproven/untrue
30
Case law Capacity is assumed in professionally drafted wills -Held 1
Parker V Feltgate 1883
31
Case law Rules in Parker v Feltgate extended
Estate of Wallace 1952 to include written instructions
32
Case law Undue influence - third party instruction Will not Valid
Singh V Amirchand -1948 testator replying on third party to convey instructions - undue influence
33
Case law Capacity is assumed in professionally drafted wills -Held 2
Burgess V Hawes 2013 - Strong evidence is required to find lack of capacity when an experiences solicitor drafts a will and has full detailed note are present re capacity
34
Case law Golden Rule
Kenward V Adams
35
Case law Golden Rule non compliance will still Valid -1
Cattermole V Prisk 2006 - Golden Rule guidance not law and does not substitute the established rules for capacity and knowledge and approval
36
Case law Golden Rule non compliance - Will tested on Capacity tests
Allen V Emery 2005 - Golden Rule desirable precaution however ultimately capacity is a question of fact
37
Case law Golden Rule Will Compliance will not Vaild
Williams V Wilmot 2012 evidence on long term solicitor and Dr out weighed file notes and single examination by an alternative Dr
38
Case law Intention - Held
Re Berger 1989 -T unaware doc could be submitted to probate but aware making provision for disposal of property on their death
39
Case law Intention not held
Corbett V Newey 1996 - T thought Will was only valid once it had been dated by the solicitors on her death.
40
Case law Knowledge & Approval
Guardhouse V Blackburn 1866 sets standards for K&A
41
Case law Time of Knowledge & Approval
Parker V Feltgate 1883
42
Case law Burden of Proof Suspicious Circumstances - exciting the court suspicions
Barry V Butlin 1883 - if the will substantially benefits the person who prepared it or a close relative of such person - The propounder must remove the suspicion
43
Case law Burden of Proof Suspicious Circumstances - exciting the court suspicions Will not valid
Wyniczwnko v plucinska- surowka 2005 - if the beneficiary is involved in the making of the will - D could not satisfy the court that the will reflected T's true wishes
44
Case law Burden of Proof Suspicious Circumstances - exciting the court suspicions Will Vaild
Knight V Edoyna 2009- Whilst C initiated the process of drawing up the will but was not present when t gave instructions or for its execution
45
Case law Burden of Proof Suspicious Circumstances lack of K&A Will not Valid 1
Sherrington V Sherrington 2005 T was a experienced solicitor - held due to poorly written will and who wrote it T had not read before signing and therefore lacked K&A
46
Case law Burden of Proof Suspicious Circumstances lack of K&A Will Valid but failed for undue influence
Schrader V Schrader 2013 - evidence showed did have K& A but was rendered not valid due to undue influence
47
Case law Burden of Proof Suspicious Circumstances lack of K&A Will not Valid 2
Poole V Everall 2016 Carer blocked communication between Solicitor & T and failed to read the will to T before signing
48
Case law Blind or illiterate Testator K&A Will Valid
Christian V Intsifil 1954 Will typed by a clerk. The will so elaborate with details of T life court deemed it could not have been devised and was a true reflection of T wishes
49
Case law Precautions - Golden Rule not used Will invalid
Buckenham V Dickenson 2000 - T deaf and Nearly Blind Will read by T only grunted - deemed open questions should be asked
50
Case law Mistake Whole Will Will valid
Marley V Rawlings 2014 Husband and wife signed wrong wills - deemed Valid as K&A was there mistake as to what doc to sign
51
Case law Mistake as to Words used - not the legal effect will not valid
Collins V Elstone 1893 - use of an incorrect revocation clause revoked earlier will
52
Case law Mistake by Testator - Wills Vaild
re Phelan 1972 three forms each had revocation no indication which pre dated which - all three summited to probate
53
Case law Mistake by Draftsman Will when amended was valid
Morrell V Morrell 1882 - mistake as to number of Shares ( from S20(1) AJA1982
54
Case law Statutory Powers to rectify - Clerical Error Rectification Granted 1
Re Segelman 1995 Family member by clause listed but T wanted excluded and was not named
55
Case law Statutory Powers to rectify- Clerical Error Rectification Granted 2
Sprackling V sprackling 2008 use of Farm and Farmhouse as interchangeable when they were two separate things
56
Case law Statutory Powers to rectify Clerical Error Rectification Granted 3
Austin V Woodward and another 2011- Revised firms precedent included that no longer represented Ts intentions
57
Statue - S20(1) Administration of Justice Act 1982
Give the court a limited power to rectify will/codicils.
58
Case law Rectification in preference to other courses of action - Held
Walker V Geo Medlicott & Son 1999 - Beneficiary's should seek the remedy of rectification before taking any other action such as suing in negligence
59
Case law Rectification in preference to other courses of action - Not Held
Horsfall V Haywarsd 1999 Court felt that rectification would fail as the funds had already been distributed and held little chance of recovery even if claim was successful
60
Case law Fraud deliberate false representation to T Will not valid
Re Edwards 2007
61
Case law Fraud deliberate false representation Part of Will not valid
Wilson V Joghlin 1866 - Married Woman represented herself as unmarried to get T to marry her and obtain a gift in the will - Her gift was excluded the rest of the will was valid
62
Case law Undue Influence - needs to be actual evidence of undue influence to invalidate will
Parfitt V Lawless 1872
63
Case law Undue Influence Will not valid evidence of undue influence
Schrader V Schrader 2013 - failed bid for lack of Capacity - but held not valid due to undue influence
64
Case law Undue influence - Will Valid no evidence of Undue influence
Carpeto V Good 2002
65
Case law Undue influence - Will not Valid evidence of Undue influence
Killick V Pountney and Another 1999 Court emphasised the importance of taking instruction in the absence of potential beneficiaries
66
Statue - Formalities for making a Will
S9 Wills act ( excluding privileged status)
67
Case law Will can be written on any Material Will Valid
Hodson V barnes 1926 - will written on an Eggshell
68
Case law Will written in any language - Will Valid
Kell V Charmer 1856 - Will written using Jewelers code
69
Case law Will Written in pen/pencil/typed or all - Will part Vaild
In the Goods of Adams 1872 - Ink went over pencil - Ink indented to supersede the pencil
70
Case law Alterations can be made in pencil
The goods of Tonge 1891 - Revocation clause struck out in pencil
71
Case law Alterations must be shown to be intended as final alterations
Muir's Trustees 1869
72
Case law Signature Will Valid - Signed as Parent
Re Cook 1960 signed as Your Loving Mother
73
Case law Signature Will Valid - Inititals
In the Goods of Savory 1851
74
Case law Signature Will Valid - Thumbpint
In the Estate of Finn 1935
75
Case law Witness signature Will Valid - Servent
In the goods of Sperling - Did not sign name but wrote Servant to Mr Sperling
76
Case law Signature - Will Valid Partial Signature
Re Chalcraft - Signed on deathbed - Signed all she could
77
Case law Signature not at the end - Will Valid
Weatherhill V Pearce 1995 - Homemade will signed in middle of attestation clause - deemed to give affect
78
Case law Assisted signature- Will not Valid
Barrett V Bem 2012 - Can be assisted providing T makes some positive and discernible contribution to the signing process which was not the case here - If needed Signature should be someone independent
79
Case law Witnesses Signature - Printed - Will Valid
Payne and Another V Payne 2018- Printing of name is sufficient
80
Case law Position of the signature - Handwritten sentence at the top
Wood V Smith 1992 - Wrote My Will By Percy Winterbone at the top then wrote the provision as was a single action was deemed valid.
81
Case law Will of multiple pages not fastened together or numbered - Will Valid 1
the Goods of Tiernan 1942 only sheet with attestation clause was signed - Valid presumption all pages together in T control at time of signing
82
Case law Will of multiple pages not fastened together or numbered - Will Valid 2
Re Little 1960 - as all pages were together on signing whilst not fasten could see imprints of signature on all pages
83
Case law Will not signed by envelope was - Will Valid
in the goods of Mann 1942 - Will not signed was in envelope which was signed by T and Witness was valid as was in another envelope that was sealed
84
Case law Witnesses witness the signature not the contents of the Will - Will Invaild
Re Gunstan 1882 - Signature covered over - So did not witness the signature
85
Case law Witnesses must acknowledge T signature
Couser V Couser Allegation of invalid signature by a witness can be an acknowledgement in itself
86
Attestation Clause present will valid
Sherrington V Sherrington - strongest evidence is needed to rebut the presumption of due execution if attestation clause is present (this will failed on K&A but the point re attestation the will was vaild
87
Case law Attestation Clause present will not valid
Ahluwalia V Singh and Others 2011 - strong Evidence only one witness was present at the time
88
Case law Witnesses or spouse of Witnesses as Beneficiaries Gift Held
Thorpe V Beswick 1881 - Gift was to X spinster at the time of the Will - after signing Witness Married X - Gift held as at the time of signing they were not married
89
Case law Witnesses or spouse received gift by codicil- Gift held
Anderson V Anderson 1872- As witnesses gift was added by way of a codicils that they did not witness gift was saved.
90
Case law Privileged wills Who can make one
The estate of Stanley 1916 S5(2) Wills (S/S) Act 1918 all services and people work on boats including civilian support staff
91
Case law Actual Military service
Re Wingham 1949- Whilst he was not in actual service he was training - Actual means active - Such so directly concerned with operations of war which is or has been in progress or is imminent
92
Case law Application of Re wingham Valid 1
In the estate of Spark 194 1 - Member of TA mobilised - PW valid war was imminent
93
Case law Application of Re wingham Valid 2
Re Colman 1958 in wartime- actual service as soon as they receive orders in connection with the war - do not need to be in a war zone at the time
94
Case law Application of Re wingham Valid 3
Re Anderson - Need not be a formal war - Sufficient for warlike operations
95
Case law Application of Re wingham Valid 4
Re Jones PW revoke earlier formal wills - Look at the totality of the environment
96
Case law What is a Mariner
In the goods of Hale 1915 -anyone who is employed on board a ship
97
Case law At Sea PW Held
In the goods of McMardo 1868 classed as at sea if under orders to return to ship
98
Case law At Sea PW not held
The estate of Rapley 1983 - Discharged from one ship made before joining another - as had not had orders to join ship was not at sea
99
Case law In existence at the date of the execution of the will
In the goods of Lady Truro 1866 - Document not in existence at the time of execution is not incorporated into the will , However if the will is executed again in full or by adding a codicil it proving all elements are satisfied it is incorporated
100
Case law Referred to as in existence at the date of the will - not incorporated
University College of North Walesd V Taylor 1908 - the term "any Memorandum found in my papers" means it could be any document written at any time and therefore could not be deemed as incorporated
101
Case law Clear Identification of the Document
In the goods of Garnett 1894 - will referred to docs numbered 1-6 in desk but desk contained so many docs impossible to identify with certainty which were correct
102
Case law The effect of Incorporation
Re Berger 1989 Any incorporated doc is admitted to probate as part of the will
103
Case law Express Revocation statue
S20 Wills act
104
Case law Revocation Failed
Kitcat V King 1930- mealy stating a document as the "last" is not revocation
105
Case law Revocation need not be in the form of a new will
Re Durance 1872 - can be a seperate document providing if is drafted and executed in accordance to s9 Aw
106
Case law Revocation needs Knowledge and approval
Re Wayland - Will made expressly to deal with foreign properties owned - later made a will using all formalities including revocation clause but will was intended only to deal with UK properties - Clear from actions no approval to revoke previous will but rather they were to run together to deal with the separate properties
107
Case law Revocation clause not lightly disregarded
Lowthorpe Lutwidge V Lowthorpe Lutwidge 1935 - Heavy burden of proof on someone who claims that an express clause is not intended to revoke previous dispositions.
108
Case law Revocation by implication revocation Valid 1
Pepper V Pepper 1870 latter will disposed of all property it implied revocation of the first
109
Case law Revocation by implication revocation Valid 2
re Howard 1944 whist T wrote two opposing Wills on same day nothing to indicate which was executed first so both failed but held both had intention to revoke the pervious will - leaving T intestate this case underlined the importance of date
110
Case law Partial Revocation by implication Revocation failed Prev will valid
Curati V Perdoni - Earlier will left item to W with provision that if W dies first it was to go to X - later will excluded the provision of going to X if W died - W did die earlier will was read in conjunction
111
Case law Failure of Revoke gift if new gift fails - old gift valid x 2
Re Hawksley's settlement 1934 if gift given to X is revoked and given to Y but gift to Y is not legally valid gift reverts to X intention to revoke only on condition that the new gift would take affect absolutely
also Re Robinson 1930
112
Case law Intention to Revoke must be Unambiguous Partial failure
Re Freeman 1910 - The use of ambiguous language can cause confusion and cause partial failure in this case A was mentioned to get a specific legacy and part of the residue - Later will replaced the specific legacy but made no mention in the residue - therefore the specific legacy failed but the gift of residue didn't
113
Case law Revocation by destruction - Partial Destruction - no revocation
Cheese V Lovejoy 1877 - simply writing" all revoked" was not sufficient to warrant revocation
114
Case law Revocation by destruction - Partial Destruction - Held Revocation 1
In the estate of Adams 1990 - Whilst the will itself was not destroyed the Attesting signatures had been heavily scored out - Revocation was held
115
Case law Revocation by destruction - Partial Destruction - Held Revocation 2
In the estate of Nunn 1936, Large parts of the will were physically removed and the remainder of the will stitched together - Deemed as the remainder still made sense it would have stood - however she also cut out her signature giving revocation to the whole will
116
Case law Revocation by destruction - Partial Destruction - Held Revocation 3
In the goods of Gullan 1858 - only middle pages remained - each page attested separately the key operating part the final page with signatures of T and witnesses was missing - will was revoked
117
Case law T need not destroy the will themselves - Revocation failed 1
Good of Dadds 1857 as the destruction had not been in his presence it was not valid revocation
118
Case law T need not destroy the will themselves - Revocation failed 2
Re De Kremer - Whilst the will was destroyed by the solicitor on the instruction of T as it was not done in her presence revocation failed
119
Case law Intention to revoke - Must be before destruction
Gill V Gill 1909 Wife tor up a will as part of an argument no revocation the fact he knew and did nothing to rectify the situation was deemed ascent after the act and not valid as there was no intention by T at the time of the destruction
120
Case law Must have Mental capacity to revoke - Will still vaild
Brunt V Brunt - T suffering from delirium from alcohol withdrawal was deemed not to have the mental capacity to revoke when he torn up his will during an attack
121
Case law Destruction must be intentional Will still vaild
Re Booth - Will accidentally destroyed by fire - no intention to revoke
122
Case law Presumption as to revocation Will revoked
Lambell V Lambell 1831 - Will found in a mutilated condition with T when died - presumption made there was an intention to revoke but died before completion
123
Case law Dependent Relative (Conditional) Revocation Held Will revoked
Re Jones -1976 - Laid down 4 questions - When T destroys their will
1) do they do so with the intention of it revoking it if not no revocation
2) if there intention was to revoke was it intention absolute or qualified
3) if qualified what is the qualification
4) if the qualification is in the form of a condition or contingency has it been fulfilled if not revocation is ineffective
124
Case law Revocation by Marriage/Civil partnership
Court and other V Despallieres 2009 S184 AJA Act provisions not upheld
125
Case law Mutual Wills General principle
Stone V hopkins 1905 Two people made arrangements to dispose of their joint estate the one dies does so with the implied promise that the survivor will hold good the arrangement after first death it becomes irrevocable unless a new will was executed by either party prior to the first death.
126
Case law Mutual Wills legally binding
Dufour V Perira 1769 becomes legally binding on first death as first person has performed there part of the agreement - if not adhered too survivour is guilty of fraud
127
Case law Nothing short of a contract not to revoke one without the consent of the other
re Gooodchild 1996
128
Case law Proof of existence of Mutual Wills
Fry V Densham Smith 2010 Must be evidence of such wills - The evidence must establish
1 ) A prior agreement by both to make a mutual will and intend it to be irrevocable on the first death
2) The making of Mutual Wills pursuant to that agreement
129
Case law Mutual Wills Must be Agreement that binds
Charles and others v Fraser 2010 reciprocal will were made by sisters - Practitioners should be sure to ensure if making Mutual wills the Rules/ramifications are fully explained in attendance notes as well as if they are indented to be mirror/reciprocal or Mutual wills the former being full able to be revoked.
130
Case law Alterations/Obliterations Alterations in pencil
In the goods of Bellamy 1886 alterations deemed to be deliberative(not final) and are not valid unless executed
131
Case law Alterations/Obliterations/ Obliteration able to read original
Re Itter 1950Alterations/obliteration where original can be read by natural means original wording will stand
132
Case law Revival will revived not revoked by destruction
In the Good of Steele 1868 -must be clear and express intention to revive a previous will s22 WA
133
Case law Intestacy - appropriation of the family home
Kane V Radley Kane and others 1998 Appropriation of the family home
134
Case law Intestacy - Value is at date of appropriation not death
Re Collins 1975 value of property is from date of appropriation not the date of death
135
Case law IFPD - Child Adopted out child Claim failed
Re Collins 1990 Child was adopted out of family after death but before claim. Lost right to claim as he was no longer a child of the family.
136
Case law IPFD Former spouse not remarried claim failed
Barrass V Harding and Newman 2001- Confirms courts traditional reluctance to make provision for a former spouse who has not remarried
137
Case law IFPD cohabitants must be over 2 years claim succeeded
Jelley V Illife 1981 Period of cohabitation of two years must be subsisting at time of death, taking into account separation through illness.
138
Case law IFPD - Look at the facts as as whole not just immediately before death - Claim succeeded
Re Beaumont 1980 Maintenance must be in existence when the deceased died.
139
Case law IFPD Adult Child Claim same standard as all other claims - failed
Espinosa V Bourke 1999 Adult Child is in no different position anyone else who has to prove their case.
140
Case law IFPD - Widow claim succeeded
Re Besterman 1984 Established the principal that a spouses settlement should be similar to that they would receive on divorce.
141
Case law IFPD Adult child claim - Moral claim -claim failed
Re Coventry 1979 There must be established some sort of moral claim … beyond the fact of a mere blood relationship.
142
Case law IFPD - role separation roles equal - claim succeeded
White v White 2001 Husband and Wife should be treated equally there is no discrimination according to the roles they have held in the marriage
143
Case law IFPD
Dingmar V Dingmar 2006 Jointly held assets in the net estate should be valued at date of trial not date of death.
144
Case law IFPD Will favored charity - Testamentary freedom - Claim only awarded modest award
Ilott V Blue cross 2017 - This could have changed everything – Testamentary freedom, gifts to charities instead of children, the rules of reasonable provision, public policy on children in receipt of benefits – everything
145
Case law IFPD - Claim failed as out of time
Berger V Berger 2013 Out of time claims will not be heard if there is no identifiable trigger for the late claim.
146
Case law Specific Legacy
Bothamley v Sherson (1875) The gift of a distinguishable item from a person’s possessions
