Corbett v Newey
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1994 |
| Date | 05 May 1994 |
| Court | Chancery Division |
Will - Conditional will - Extrinsic evidence - Will to take effect on satisfaction of condition - Condition not appearing on face of will - Whether will valid as conditional will - Whether extrinsic evidence admissible to prove existence and fulfilment of condition
In February 1989 the testatrix executed a will whereby she left one farm to her niece, the seventh defendant, one farm to her nephew, the plaintiff, and her residuary estate equally between them. A few months later she decided to make inter vivos gifts of the farms to her nephew and niece respectively and instructed her solicitor to draw up the deeds of gift in the hope that both gifts would be completed on Michaelmas Day, 29 September 1989. The testatrix also instructed her solicitor to draft a new will to supersede the February will and reflect the fact that the farms no longer formed part of her estate. On 28 or 29 September the testatrix executed the new will (“the September will”) which made no mention of the farms, left other properties to her nephew and niece and the residue to be divided equally between the joint third defendants, the sons of her niece. Completion of the inter vivos gifts was not possible on 29 September. Accordingly the testatrix refrained from dating her September will in the mistaken belief that that would postpone the operation of the will until the date was inserted, which she intended to have done once the inter vivos gifts were effected. The deeds of gift became effective on 25 December 1989 and the testatrix's solicitor, pursuant to her instructions, dated the September will 26 December 1989. The testatrix died a little over a year later without having made any further will or codicil to the September will.
On the plaintiff's claim that the September will was invalid and on the defendant's counterclaim for its pronouncement in solemn form: —
Held, dismissing the plaintiff's claim and ordering that the September will be admitted to probate in solemn form, that since the testatrix was clear as to her testamentary wishes, albeit subject to the completion of the inter vivos gifts of the farms, and wished the September will to govern the distribution of her estate on her death, she had the necessary animus testandi even if she was misguided as to precisely how and when a testamentary document became effective; that the will was a valid conditional will notwithstanding the absence of any reference to the condition to be fulfilled on the face of the will and extrinsic evidence was admissible to establish the existence of the condition and its fulfilment; and that accordingly, the September will took effect on completion of the deeds of gift on 25 December 1989, and the February will was thereupon revoked (post, pp. 555E–G, G–H, 557E–558A).
The following cases are referred to in the judgment:
Govier, decd., In re [
Horner, In re [
King's Proctor v. Daines (
Lister v. Smith (
Milnes v. Foden (
Resch's Will Trusts, In re [
Slinn, In the Goods of (
Spratt, In the Goods of [
The following additional cases were cited in argument:
Baxter, In the Goods of [
Ferguson-Davie v. Ferguson-Davie (
Gladstone v. Tempest (
Hugo, In the Goods of (
Hunt, In the Goods of (
Lowthorpe-Lutwidge v. Lowthorpe-Lutwidge [
Meyer, In the Estate of [
Porter, In the Goods of (
Robinson, In the Goods of (
Smith, In the Goods of (
Vines, In the Estate of; Vines v. Vines [
Action and Counterclaim
By a writ dated 5 June 1992 the plaintiff, William H. J. Corbett, sought relief against John W. Newey and David P. Bennett, the executors of a will made in September 1989 (“the September will”) by Nancie Armorel Tresawna (“the testatrix”), who died on 6 February 1991, James and Jonathan Arthur, both minors appearing by their father Nicholas Arthur, Elsie Brew, Mrs. M. E. Corbett, Rosemary May Somerville and Sarah Arthur, beneficiaries under the September will. The plaintiff, who was a joint residuary legatee under a will of the testatrix dated 3 February 1989, sought an order pronouncing against the September will and a declaration that it was invalid.
By a defence and counterclaim dated 19 October 1992 the first defendant, John W. Newey, counterclaimed for an order that the September will be admitted to probate in solemn form of law and for a grant of probate to the first and second defendant. The second defendant, David P. Bennett, by his defence dated 15 November 1993 affirmed that if it was determined by the court that the September will was valid and effective he would accept such determination and do all necessary and proper acts and things as executor thereof but save as aforesaid did not intend to seek or advance any case at trial.
The joint third defendants, James and Jonathan Arthur, the minor sons of the seventh defendant, Sarah Arthur, and the seventh defendant by their defence and counterclaim dated 16 October 1992 sought that the court should decree probate in solemn form of the September will.
The facts are stated in the judgment.
Quintin Iwi for the plaintiff.
Francis Barlow for the first defendant.
Patrick Powell for the third and seventh defendants.
The second, fourth, fifth and sixth defendants did not appear and were not represented.
5 May. Mr. Eben Hamilton Q.C., sitting as a deputy judge of the Chancery Division, read the following judgment. This case concerns the estate of the late Miss Nancie Armorel Tresawna, who died on 6 February 1991. Miss Tresawna owned land in Cornwall: in particular she owned two farms, Tolcarne Marrock Farm, St. Mawgen, Newquay (“Tolcarne”) in which her sister Mrs. Corbett had a one-seventh share, and Lamellyn Farm, Probus, Truro (“Lamellyn”). Mr. Jonathan Nicholson, a partner in Messrs. Bond Pearce of Plymouth, who became her solicitor in September 1989, described Miss Tresawna in his evidence to the court as “a charming, intelligent client, who was quite businesslike and appeared to know what she wanted.” From the evidence that I have seen and heard I have formed the clear impression that, whilst Miss Tresawna might have had some misunderstandings as to how or when a will might become effective, she was at all material times in no doubt as to how she wished her estate to be distributed.
For some years before her death Tolcarne had been let to Miss Tresawna's nephew, William Corbett, the plaintiff (“William”), whilst Lamellyn, which had previously been let to William, had been let from 1983 to her niece, Sarah Arthur, the seventh defendant and the sister of the plaintiff (“Sarah”). Over the years it seems that Miss Tresawna was considerably exercised as to what she should be doing with her properties for the benefit of her nephew and niece for the future. She was in the habit of taking advice from professional advisers and, in particular, from Mr. John Foster, a solicitor practising in Saltash until he left the profession in August 1989, Mr. John Newey, the first defendant, a chartered surveyor, who advised her on property matters, and Mr. David Bennett, the second defendant, a chartered accountant, who advised her on accountancy and taxation matters.
Miss Tresawna appears to have been anxious to ensure that William and Sarah should be treated fairly and equally. In the first will Mr. Foster drafted for her, and which was duly executed in December 1980, Miss Tresawna after various specific legacies bequeathed her interest in Tolcarne and Lamellyn to Sarah. She stated in the relevant clause that:
“the reason I have not...
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...It will be noted that the Act does not impose a requirement that a valid will bear a date, let alone the correct date of execution. In Corbett v Newey [1998] Ch 57, Waite LJ (with whom Butler-Sloss and Morritt LJJ agreed) said (at 54D): “Before coming to the arguments, I should state that ......
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Marley v Rawlings and Another
...to be satisfied, the document must be a document that, without rectification, the testator intended as his will. 103 In Corbett v Newey [1998] Ch 57, Morritt LJ identified at page 68 the policy of the Wills Act 1837: Thus the plain and understandable emphasis is that the devolution of the ......
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Corbett v Newey
...September will before her own as a residuary legatee under the February will). 15 In his judgment given on 5 May 1994 (and reported at [1994] Ch 388) the deputy judge ruled that the September will was valid and should be admitted to Probate. He did so on the basis that although Miss Tresawn......
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Marley v Rawlings and Another
... ... some comfort for this conclusion from the fact that both cases were cited without adverse comment by Morritt LJ in the Court of Appeal in Corbett v. Newey [1998] Ch 57 at 68F ... 27 Accordingly, it seems to me that the claimant must fail on the ground that the ... ...