Strong v Bird

English Equity & Trusts

Strong v Bird
Image: ‘Debtor Night’ by Seminary Road

While English common law requires the perfecting of a gift through written documentation, the circumstances of that prerequisite can be somewhat altered when the moment calls. On this occasion, a testatrix was ultimately able to complete an oral debt release through the appointment of her debtor as an executor.

In 1866, the deceased was cohabiting with her son in-law when due to her sizeable wealth, she entered into an agreement whereby a significant amount of rent was paid on a quarterly basis, after which the defendant borrowed £1100, on the proviso that she deducted £100 per quarter until the balance owed was clear.

After only two payments, the deceased relinquished the debt, and explained that no further deductions were necessary. This evidence was supported both by his wife and from handwritten notes left on the cheque counterfoils used before her demise.

Upon her passing, the beneficiary to her will contested that the £900 unpaid, was now owed under law, as the cessation of the loan had not been committed to any form of written notice aside from the cheque stubs, which were deemed insubstantial as proof.

Relying upon the essence of equity, the court examined the context in which her wishes had been executed, and knowing the oral and notary testimony were insufficient to stand as perfect, her appointment of the defendant as executor to her will, was evidence enough, and that while:

“The law requires nothing more than this, that in a case where the thing which is the subject of donation is transferable or releasable at law, the legal transfer or release shall take place. The gift is not perfect until what has been generally called a change of the property at law has taken place.”

Thus the court held that the deceased, having made no express acknowledgement of a debt within her will, was proof enough that the gift was perfect, and that its absence created in the defendant, an absolute right to title of the £900, therefore no challenge could be made, equitably or otherwise. The court further noted that her further payments of full rent for a period of four years after the money had been loaned, showed again that she considered the sum paid in full, and so sought no recovery in death, as she might in life.

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.