Probate law

The Administration of Justice Act 1982 substituted a new section 33 in the Wills Act 1837.

Sub-section 1 provides that where a testator makes a gift to a child or remoter issue who predeceases the testator but leaves issue who survive the testator, the gift to the child does not lapse but takes effect as a gift to the issue.Sub-section 2 provides that where the gift is a class gift, the class includes issue of a deceased child.

Both sub-sections are subject to contrary intention.

There have been few cases on the effect of the section.

Most professionally drawn wills include express provision to deal with substitutional gifts so that there is no need to consider section 33.Contrary intentionLing v Ling (2001) LTL 21 November In this case Mr Justice Etherton had to consider whether a testator (T) had shown contrary intention and excluded the effect of section 33.T's will left his estate to his wife provided she survived him by one month and if she did not to such of his children as survived him by one month and attained 21.

T had two children, V and R.

T's wife died in November 1998.

R died in April 1999 leaving a son, A.

T died in May 1999.T's daughter, V, contended that she alone was entitled to her father's estate.

She argued that T's gift was limited to children who survived him.

Mr Justice Etherton rejected this.

The reference to one month did not limit the gift to surviving children.

It merely fixed the time when the gift could vest.

R's son, A, was a member of the class although he would have to satisfy the contingency and attain 21 before he would be entitled to distribution.Proprietary estoppelChan v Ho and Melodious Corporation (2001) LTL 30 NovemberMr Justice McGonigal found that the defendant had promised the claimant that he would marry her and give her a share in his assets.

He also found that she had acted to her detriment.

She had followed him from Hong Kong to England and given up a promising career, and as a result of her relationship with him (he had been imprisoned for bribery) was the subject of opprobrium among her family and friends.

He ordered that she should have a right to occupy a property bought by him as a quasi-matrimonial home until she had completed her studies in the UK.Knowledge and approvalFuller v Strum (2001) LTL 7 December This case is a sad illustration of the way in which modest estates can be exhausted by litigation costs.The deceased, Max Strum, was a Jewish refugee who came to England with his wife in 1939.

In 1955 they adopted a baby, Geoffrey.

In 1989 Mr Strum had decided to go to Israel and sold his house to Michael Fuller who was the son of old friends of Mr Strum.

The sale was for a little less than the market value of the property.

Mr Fuller gave Mr Strum 15,000 to invest for him in Israel on rather complicated terms.

They decided that it would be sensible for a third party to witness the deed.

Mr Fuller invited a mutual friend, Isaac, to come to tea to witness the deed.

Also present was Mr Fuller's Aunt Clara (now dead).

Isaac said in evidence that after he had witnessed the deed Mr Strum and Mr Fuller retired to another room to draft a will.

Clara and Isaac witnessed it.

The beneficial provisions were covered with a sheet of plain paper.When Mr Strum died, Mr Fuller opened a deeds box given to him by Mr Strum and found that it contained the original will.

The will gave a modest legacy to an old family friend and a little less than half of the estate to Mr Fuller and members of his family.

The residuary gift was made to Geoffrey, but the language used about him was very rude.

It said that Mr Strum hated him 'like poison' and made the gift 'grudgingly'.

Geoffrey challenged the will on two grounds.

He alleged lack of knowledge and approval and also that the will was a forgery.

He said in court that his main reason for challenging the will was that he did not believe that his father had said the unpleasant things about him contained in it.

If he accepted the will as valid, he would take about half of the estate.

If he challenged it and it was declared invalid he would take the whole estate on intestacy but it would be drastically eroded by costs.

At first instance ((2001) LTL 2 January) Mr Justice Jules Sher said that he found Geoffrey a convincing witness.

The joint handwriting expert said that there was strong evidence that the signature was a forgery.

However, the judge said that he could not accept that the will was forged.

Such a finding would implicate Isaac in the forgery and this seemed impossible.So far as knowledge and approval were concerned, the burden was on Mr Fuller to prove that Mr Strum had known and approved the contents.

Looking at the evidence before him the judge found that the language used was so out of character that he had serious doubts whether Mr Strum knew and approved anything in the will apart from the legacy to the old friend where the impetus had to have come from the deceased himself.The Court of Appeal allowed an appeal.

Although it was possible for a court to find that part of a will had knowledge and approval while part did not, the circumstances in which it would be proper to make such a finding would be rare.

They did not exist in the present case.

The judge had mis-characterised the state of the relationship between Mr Strum and Geoffrey.

He was not justified in inferring that Mr Strum would not have made the remarks contained in the will.

The judge should have found the will to be entirely valid.

By Lesley King, College of Law, London