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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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2019 - What did we learn?
08 January 2020

2019 was another busy year for claims challenging the validity of wills so as we start a new year and indeed, a new decade I look back at some of the big cases from 2019 and review what we have learnt from them.

Forfeiture & assisted suicide

February saw the start of the year with the landmark case of Ninian V Findlay & Others relating to the law of forfeiture and assisted suicide.

Mrs Ninian’s husband had made arrangements to end his life. He was 84 and had been diagnosed with a progressive incurable disease affecting his balance, movement, vision, speech and swallowing.  

Mrs Ninian applied under Section 2 of the Forfeiture Act 1982 to have the well established forfeiture rule, namely that if a person unlawfully kills another they may not inherit under the deceased’s estate, excluded. The court found that the forfeiture rule applied to assisted suicide cases, assisted suicide being a crime under Section 2 of the Suicide Act 1961.

Mrs Ninian had not assisted with the act of suicide itself but did assist with the administration and travel arrangements, without which Mr Ninian would not have been able to attend the clinic and end his life and so an offence had been committed and the forfeiture rule applied.

However, the court felt that there was a strong case to exercise its discretion and grant the relief sought by Mrs Ninian. The police had made a decision not to prosecute Mrs Ninian and there was strong evidence that Mr Ninian retained capacity as well as an independent mind and had clearly recorded his intentions. Furthermore, Mrs Ninian’s brothers, who would have benefitted under the will if exclusion had not been granted, supported her application. Accordingly, the court granted her the relief sought.

Proprietory estoppel

June saw the latest in proprietory estoppel claims with the publication of the case of Habberfield V Habberfield. In this case, one of Mr and Mrs Habberfield’s daughters, Lucy made a claim for proprietory estoppel in relation to a family farming business following the death of her father. Briefly, Lucy alleged that her father had made various assurances and promises to her during his lifetime as regards the ownership of the farm following her parents’ death and that relying on the same Lucy had acted to her detriment in, for example, working at the farm for little recompense. The court agreed and made a monetary award to Lucy. Although her mother sought to appeal the award itself, the Court of Appeal, found that it was within the court’s discretion and refused her application to amend the same.

Valid execution of will

June saw the publication of Burgess V Penny & Another. Following Mrs Burgess’ death her two daughters sought to challenge the validity of her last will wherein she left the entirety of her estate to her son. Whilst on the face of it the will appeared to be valid and there was no suggestion that Mrs Burgess lacked capacity to execute the will, one of the witnesses to the will gave evidence that he had not seen her or the other witness sign the will.

Under Section 9 of the Wills Act 1837 in order for a will to be valid it must, inter alia, be in writing and signed by the testator in the presence of two or more witnesses present at the same time, who should both also attest and sign the will.

In the circumstances, the presumption of due execution was rebutted and the will was found to be invalid.

Extensions of time

In July the eagerly awaited court of appeal decision was handed down in the case of Cowan V Foreman. This case revolved around Mrs Cowan’s application to extend time for issue of her claim under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”). Under Section 4 of the Inheritance Act any claim must be issued within six months from the date of issue of the grant of probate.

In February 2019 the High Court had dismissed Mrs Cowan’s application for an extension of time, made 17 months after the limitation period had expired having concluded that there was no justification for the substantial delay and in any event, her claim had no real prospects of success, Mostyn J considering that she was well provided for under the terms of her husband’s wills which included the setting up of complicated trusts.

The decision was overturned by the court of appeal and Mrs Cowan was granted permission to issue her claim out of time.

Who died first?

October saw the publication of the very unusual case of Scarle V Scarle. Mr and Mrs Scarle died at home from hypothermia. Both of them had children from previous relationships and each of them had made wills leaving their estate to the other and in the event one should pre-decease the other to their respective children. It was some days before their bodies were found and it was therefore necessary for the court to consider who had died first.

When it is not possible to determine the order of death (for example, a car accident) the commorientes rule will apply, namely a presumption that the younger survived the elder. Whilst Mrs Scarce was in poor health immediately prior to her death, she was aged 69 at the date of death with Mr Scarce being aged 79. The court applied the commorientes rule and determined that Mr Scarce had died first.

As a result, Mr Scarce’s estate passed to his wife and in turn Mrs Scarce’s estate passed to her children with there being no inheritance entitlement for Mr Scarce’s children.

A salutary reminder

Whilst the current trend of cases challenging wills looks likely to continue in 2020, whether by way of proprietory estoppel claims prior (or after) death or for other grounds such as testamentary capacity or lack of want of knowledge and approval, applicants should be reminded that under English law testators have testamentary freedom to leave their estates to whom they chose, subject to the statutory provisions of the Inheritance (Provision for Family & Dependants) Act 1975. It is not therefore, as Master Arkhurst commented in September in the case of Rea V Rea for the court to decide whether a “will was justified or fair”. It is for the court to find if the “will is valid”.

In this case, Mrs Rea had made a will leaving her entire estate to her daughters with no provision being made for her three sons. The sons challenged the will on various grounds including lack of testamentary capacity and want of knowledge and approval.

As is becoming the norm for these types of cases now considerable weight was placed by the court on the evidence given by the solicitor who prepared the will and Mrs Rea’s GP who had provided a contemporaneous capacity assessment as part of the preparation of the will, both witnesses giving evidence in support of its validity.

The brothers had no evidence to counter this evidence other than their own respective interpretations and the court re-stated findings in recent case law that it would be a “very strong thing” to overturn a will which had been prepared by an independent experienced solicitor.

The court found that the will was valid and was what Mrs Rea wanted; it was just not to the liking of her sons.


Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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