Burrough v Philcox (1840)

English Succession Law

Burrough v Wilcox
‘The Writing Of The Will’ by Christian Ludwig Bokelmann

The intention to bequeath when drafting a well organised and thoroughly considered will remains the deciding authority of the testator, and so when perhaps vital elements to that redistribution are left wanting, the power falls to the court to compel the wishes of the deceased in as full a manner as possible, as was found in this potentially convoluted suit.

Having given tremendous thought to the lifetime of his estate, and the unavoidable dilemma of untimely deaths, the deceased had made express stipulations as to the execution of his legacy should his immediate  progeny die, while this caveat was made clear by the words:

“[I]n case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper.”

And so in the sad event that his two children were unable to live long enough to bear children, or oversee the disposition of his estate as he had wished, the matter was presented to the Court of Chancery, so as to establish if when dying, the power to assign to those in vivo was relinquished, or if the estate was to remain in trust for the benefit of those now dead.

After much deliberation, and a reinvestigation of a number of arguable precedents, the court turned to Brown v Higgs, in which it was held that within circumstances where those granted executory powers have passed, the will itself becomes a mere trust, and therefore:

“[T]he trustee having died without executing it, or transgressing it, or refusing to execute it, shall not prevent its being held an absolute benefit for the objects, with a power to give a preference.”

Thus the court held that where a will or codicil is deliberate enough to provide express use of its power, the court is granted proper authority to ensure that its instructions are followed both with judicial impartiality and honest justiciability, therefore the will was enforced and the proper class of beneficiaries shown due privilege, while the court also held that:

“[W]hen there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class.”

Re Slater (1907)

English Succession Law

Slater v Slater
‘The Water Company’ by W.Hudson

The power of legislation to effect a disturbance in the bequeathment of company shares, provides the footing of a claim against ademption when a testator’s wishes fall victim to the dissolution of an established utility company.

Having taken the steps to leave a specific legacy to his sister in a will drafted little over year before his death, the testator expressed that:

“To Catherine Pontin Slater I bequeath the interest during her life arising from money invested in the following…Lambeth Waterworks Company.”

Unfortunately eleven months after his declaration had been formalised, Lambeth Waterworks Company was acquired by Metropolitan Water Board under the powers provided for in the Metropolis Water Act 1902, whereupon shareholders were issued Metropolitan stock to the same values as before.

At the point of death, the executors challenged under summons, the existence of the new shares on principle that despite their reassignment, the Lambeth Waterworks Company shares were equally visible, despite the change of form preceding the will’s completion. The first court disagreed, and referred to the principle of ademption under s.24 of the Wills Act 1837 which reads:

“…[E]very Will shall be construed, with reference to the Real Estate and Personal Estate comprised in it, to speak and take effect as if it had been executed immediately before the Death of the Testator, unless a contrary Intention shall appear by the Will.”

This translated that despite the previous reference to Lambeth Waterworks Company and the resulting transferral from Lambeth stock to Metropolitan stock, there could be no correlation between the two sources other than by the nature of their business.

Upon rejection of the claim, the executors appealed, whereupon the Court considered recent cases, that while supportive in their construction, offered little to uphold a challenge to the clarity provided for by the 1837 Act. It was for this simple reason that the Court dismissed the appeal and allowed for the shares to lapse into the residual estate.

Healey v Brown (2002)

Succession Law

Healey v Brown
‘The Pact’ by François Bard

As can often result from mutual wills, the overlapping fields of contract law and equity become central to the resolution of this property dispute, after a claimant intervenes in the immoral acquisition of sole title to the matrimonial home of a son’s parents.

The drafting of mutual individual wills reflected that upon death, the surviving spouse became under law, the sole beneficiary of that person’s equitable and legal interest in the property occupied at the time of death. Where neither party were survivable, the individual wills stated that the wife’s niece was to become the beneficiary of the equally held share of the leasehold, and that the father’s son would inherit the remainder of the estate.

Following the death of the wife, the husband took the liberty of transferring his now sole title to that of a shared (or joint) title to the property with his son; an act that in and of itself, contravened the earlier agreement within their final (and irrevocable by declaration) wills. This transgression had remained unaddressed until the death of the father, preceding a naturally vehement claim by the niece that the transfer of title constituted fraud, and that under those circumstances, the son now held both parents’ share of the property upon trust for her, and that despite any contractual arrangements made between the father and son, the binding nature of the mutual wills superseded any administrative effects constructed under the laws of property.

Despite drawing argument against mutual testation under the property doctrine of survivorship, it remained evident that the father was acting within a fiduciary capacity when surviving his wife’s death, and so by avoiding the duties prescribed him, he breached that obligation in favour of his son’s expectation to benefit.

Again, as with the rules of equity and proscription of contract law, there appeared to be a lack of clarity surrounding the written intentions of the testator and testatrix, while the basis for this opposition relied upon s.2 of the Law Reform (Miscellaneous Provisions) Act 1989, where the disposition of land requires a single co-signed document containing the terms of the arrangement (or at the very least an exchange of those documents) as proof of intention; yet as the mutual wills were never signed by their respective partners, any desire to enforce their bequests became invalid under the Act itself. This essentially meant that:

“No disposition of land can be challenged unless done so with a written and signed document contrary to the one drafted by the person charged.”

Sadly, the nature of the wills were such that neither party co-signed the others wills prior to their deaths, which thereby prevented a contract of sorts to exist, so on this occasion the judges decided that instead of the property now becoming the sole title to the claimant, as was the design of the mutually drafted wills, the home was now held in equal shares for both parties to enjoy, albeit through the framework of a constructive trust.

Rymer v Stanfield (1895)

English Succession Law

Rymer v Stanfield
‘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.