Wintle v Nye

English Succession Law

Wintle v Nye
Image: ‘Consulting her Lawyer’ by Frank Dadd

Amendments to an existing will by the hand of an unwitnessed solicitor, brings with it grave concerns within the courts, and on this occasion, there was little to endorse the legitimate redirection of assets from the testatrix’s named charities and extended family members, to that of a sole executor assigned to promote fair and transparent dispositions.

Having herself become wealthy through the acquisition of property and funds resulting from deaths of those close to her, the now deceased testatrix turned to the professional and perhaps personal advice, of a solicitor whose father before him had served the family’s legal needs.

During the decade preceding her death, there were a significant number of alterations made to her existing will and codicil, primarily through repeated consultation with the now respondent solicitor. At the outset of their working together, the respondent had become responsible for the management of the deceased’s estate, following the death of her brother a year previous.

It was around this time that several liaisons occurred, during which the testatrix was claimed to have requested that both the Bank of Westminster and the respondent were to act as joint executors, with the responsibility of issuing annuities to close relatives and local named charities.

It was also admitted that throughout the course of events, the deceased knew little or nothing of the extent of her estate, while it was well known to those familiar, that she was also of reasonably low intelligence and lacking any substantive business acumen or financial insight. It was for this reason that the court was reluctant to endorse later alterations involving the removal of the bank and charitable gifts, in lieu of the respondent gaining sole executorship for the estate, along with the power to determine all pecuniary legacies at his discretion.

There was also mention that the deceased had grown concerned that a lack of funds would prevent her from securing her younger sister’s annuity, and so with little objection from the respondent, this bequest was also removed, despite him having sound knowledge as to the actual value of her estate, and abundance of funds to hand.

All of these (and other) inexplicable changes resulted in an estate worth £115,000, which in 1947 was no small sum, especially when it was noted that the deceased had taken the initial decision to leave the residual estate to the respondent, which had since increased from less than £1000 to now over £100,000.

It was this questionable outcome that prompted legal action for the recovery of the deceased’s estate on grounds that the will was void, due to the unwitnessed interactions between the testatrix and the respondent, and the reliance upon his deposition as evidence, however at no point was fraud properly alleged. When heard before a jury, the judge gave direction accordingly, at which point the will was held to be valid and beyond reasonable doubt.

Taken to the Court of Appeal, the Court upheld the previous findings, before the case arriving at the House of Lords. Here emphasis was placed upon the seeming reluctance by the first judge to approach the case with sufficient suspicion, as was traditional in these circumstances. It was also argued that there were numerous reasons for the House to question not the mental fragility of the deceased, but her vulnerability in maters of property, wealth and estate administration.

And so it was, after careful examination of the facts, uniformly decided that both the will and codicil were to be held as invalid, and that referral to the High Court of Justice (Probate Division) on those grounds would be made for the purposes of a resubmission, but with the absence of beneficial rights granted to the respondent.

Rymer v Stanfield

English Succession Law

Rymer v Stanfield
Image: ‘Theological College of the 14th Century’ by Artur Samofalov

The careful execution of wills and codicils is never truly appreciated until upon dispensation of an estate, the testator/trix’s wishes are forgone in favour of a residual lapse. On this occasion, the deceased intended to bequeath a considerable sum (at the time) to a specifically named college, in order that the students attending would continue to benefit from a religious education beyond his lifetime. As illustrated, the relevant wording requires considerable forethought of specificity, because a failure to do so can prove either contributive or preventative, as was the case here.

When the testator requested that allotted funds were to be granted upon trust to the principal of a St.Thomas’s Seminary for the purposes of funding the attending scholars in their priesthood training, the beneficiary itself was specifically named and the subsequent use of those funds attached to that establishment. This meant that the court was unable to apply the doctrine of cy-prés, which in turn resulted in a lapse of the gift into the testator’s residual estate.

For clarity, ‘cy-prés’ is a process whereby the courts can act within their capacity to draw inference from the underlying intention of a testator/trix, in order to allow a potentially lapsed gift to pass instead to a charitable organisation or cause similar to the one originally intended. This judicial measure becomes operative when the designated recipient has ceased to exist upon death and subsequent enactment of a will or codicil. Where a similar body can be proven to exist, the courts can essentially redirect the funds to that alternative beneficiary, on the proviso that the gift would be used for the ends described in the will. Sadly, in the case of Rymer, the exactness of the wording and assigned legacy was such that no legal interception could follow, and thus no application of the above doctrine could stand.

Executors, Gifts and Trustees within English Succession Law

Academia

Executors, Gifts and Trustees in Succession Law
Image: ‘Reading the Will’ by Frederick William Elwell

Executors, Gifts and Trustees in Succession Law

Blackwell v Blackwell

English Equity & Trusts

Blackwell v Blackwell
Image: ‘The Artist’s Mistress’ by Charles Sims

Verbal instructions that are then attested and complied with by the named trustees before the death of a testator, fall neatly between the rules of wills and probate and the equitable field of trust law. On this occasion, the wish of a dying man was such that a large sum of money was to be held upon trust for a party outside of his marriage while unknown to his widow.

Having long agonised over his duty to make provisions for a mother and a child borne out of wedlock, it was decided by the testator to set aside several thousand pounds in the wish that five of his closest friends would act as trustees with the express purpose of investing the funds for the benefit of the two named parties, until such time that the trustees elected to provide them with two thirds of the initial sum, before placing the remaining third back into the residuary estate of his final will.

Upon his death, his widow discovered the bequest, and looked to dismiss its validity upon grounds of fraud and contradiction to the terms of the will where his widow and their son were to benefit from his entire estate. As was common to domestic legislation, s.9 of the Wills Act 1837 read that no will (or codicil) shall be valid unless set in writing and signed by the testator in accordance with statute. On this occasion, the instructions given by the deceased were initially verbal, and only put to writing by means of a memorandum drafted by his solicitor, who himself signed as a trustee and submitted it in support of the codicil.

Using the terms contained within the 1837 Act, it was argued that while the trust memorandum was written, the execution of the codicil was oral, and therefore fell outside the powers granted beneficiaries, unless it was in effect, designed to stand for the sole benefit of the widow through the residual estate; in which case the trustees would be acting in fraud should they look to enforce the terms of the codicil.

While decided twice in favour of the trustees, it was later put before the House of Lords, where the rules of equity were scrutinised in conjunction with proven case law. Having examined the principle that ‘equity will not permit statute to be used as a cloak for fraud’, it was found that where a testator propounds a desire to execute a trust, and then proceeds to provide explicit instruction as to its use, any argument that seeks to undermine the intentions of that person through the use of legislation, must then find themselves party to fraud if they would instead stand to benefit from the funds expressly requested for the enjoyment of another.

In circumstances such as these, it was historically preferred that equity imputes the same responsibility as that agreed to by the original trustee, so that they would then act under the same instructions so as to permit the objective of the deceased to be realised, while this transference effectively circumvents the fraud and makes right, that which is prima facie claimed wrong.

Resting upon this proven application of jurisprudence, the presiding Lords established that far from looking to dissect the flaws proposed by the appellants, it was clear that any conflict arising from a lack of signatory validation, was insufficient when looking to overrule the will of the testator against a trust that by all accounts, left no illusions as to its purpose and means of delivery, and so awarded for the trustees while holding that:

“[V]erbal or written instructions communicated by a testator to a legatee and assented to by him create an enforceable trust…”