Landmark Cases in Succession Law

Brian Sloan, Brian Sloan

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509919017
• Edition: 1
• Topic: Law
• Subtopic: Property Law
• Index: Law

The Landmark Cases series highlights the historical antecedents of what are widely considered to be the leading cases in a discipline, and seeks to provide contexts in which to better understand how and why certain cases came to be regarded as the 'landmark' cases in any given field. Succession law's long pedigree, near-universal application, immense capacity for human interest stories, somewhat uncertain future in England and Wales, and close connection to demographics make it an ideal candidate for a Landmark Cases volume. The distinguished contributors to this collection consider cases ranging from 1720 to 2017, covering issues such as will-making and interpretation, the position of beneficiaries and personal representatives, testamentary promises, and the extent of testamentary freedom in England and Wales and beyond. The cases are relevant not only to scholars and students of succession law per se, but also those working in fields such as tax, trusts, tort and land law. They raise issues as diverse as class, colonialism, familial dynamics, expectations and obligations, mental health, and the proper roles of the legal profession and the welfare state. The collection will provoke much discussion on what makes a 'landmark' case, as well as on the peculiarities and limitations of the case law method.

1

Introduction

BRIAN SLOAN

Succession law’s long pedigree, near-universal application, immense capacity for human interest stories and somewhat uncertain future in England and Wales¹ make it an ideal candidate for a Landmark Cases volume. This is particularly true as the field faces challenges such as the ageing population and varying family structures and expectations.² For the purposes of this volume, ‘succession law’ mostly encompasses the destination of a person’s property after his or her death, although Heather Conway’s chapter on Williams v Williams is an important reminder of the importance of the destination of one’s earthly remains.³ The aim of the series, edited by Paul Mitchell, is ‘to highlight the historical antecedents of what are widely considered to be the leading cases in the common law … and … to provide a context, or contexts, in which to better understand how and why certain cases came to be regarded as the “Landmark” cases in any given field’.⁴ The contributors to this collection have considered diverse cases with this objective in mind, ranging in decision date from 1720 to 2017. While some of the cases considered in earlier volumes inevitably have relevance to succession law,⁵ care has been taken to ensure that the cases at the centre of this volume do not duplicate those earlier targets.

In this short introduction, I have the opportunity to explain the somewhat unorthodox structure of the book and provide an overview of its content, to highlight some themes that emerge from the chapters and to consider the nature of a ‘landmark case in succession law’. I must recognise the immense contributions not only of the contributors, but also of the discussants at the conference in Cambridge⁶ to the content of this chapter, and to the volume as a whole.

I.AN OVERVIEW OF THE BOOK’S STRUCTURE AND CONTENT

The vast majority of the volumes in Hart’s Landmark Cases series arrange the chapters according to the date of the case. In formulating my proposal, I had the thought that arrangement according to subject matter might more easily allow common themes to emerge. It seemed a shame, for example, for Nicola Peart⁷ and John Mee’s chapters,⁸ addressing testamentary promises in New Zealand and England and Wales respectively, to be separated by Judith Skillen and James Lee’s on the liability of will drafters to would-be beneficiaries⁹ because of the order of events. Discussion at the Cambridge conference revealed opinion to be sharply divided on the question. After much thought, I decided to retain a thematic structure, notwithstanding the risk that the cases might be robbed of their historical context, the necessity of attempting to justify the order of chapters (a task undertaken later in this section) and the inevitable provocation of disagreement that a non-chronological order involves. In any event, it goes without saying that the chapters are self-contained and that the reader is entirely free to read them in any order desired!

With Hart’s forbearance, I have also broken with convention both by including several chapters on cases that are not directly relevant to English law (Walter Pintens’s on S and S,¹⁰ Nicola Peart’s on Re Welch,¹¹ Daniel Carr’s on Lashley v Hog,¹² Prue Vines’s on Re Estate Wilson, deceased¹³ and to a lesser extent Ying Liew’s on Birmingham v Renfrew)¹⁴ and by commissioning two on cases decided just around two years before submission of the manuscript (Prue Vines’s again¹⁵ and my own on Ilott v The Blue Cross).¹⁶ I hope the reader will agree that there were good reasons for these decisions: the former allows the English cases to be set in their comparative context (even extending beyond the common law that is generally the hallmark of the series), and while the latter inevitably limits the extent to which the cases can be reflected upon in the light of subsequent developments, in my view this is outweighed by the very significance of the judgments. On a related note, contributors to this collection may have experienced less of the ‘free choice of case, and complete freedom of method in how to approach their material’ that has characterised previous books in the series.¹⁷ While I dread to think what this says about my approach to editing and my personality more generally, I do at least hope that I have aided the coherence of the volume.

The volume opens with two older cases on construction. Birke Häcker tells the fascinating story of All Souls v Codrington, involving how a bequest of a ‘library’ contributed to the establishment of the rule that a will speaks from death.¹⁸ Jesson v Wright is the focus of Neil Jones’s contribution, the case being the leading one on the ill-fated rule of construction known as the rule in Shelley’s Case.¹⁹

We then move to attributes that a testator must have to make a valid will, specifically capacity (both retrospective and prospective), knowledge and approval. Juliet Brook analyses the highly cited case of Banks v Goodfellow on testamentary capacity, inter alia highlighting its ambitious theorising of the mind, nuance and emphasis on testamentary freedom, but also its role in facilitating submissions to the effect that the testator failed to make the ‘right’ will.²⁰ Barbara Rich then considers a leading case on statutory wills for living persons judged incapable of making a will, Re D(J). She highlights the fact that although the case pre-dates the significant change from a ‘substituted judgment’- to a ‘best interests’-oriented approach heralded by the Mental Capacity Act 2005, it may yet have an influential afterlife as a landmark cas...