1
Introduction
BRIAN SLOAN
Succession lawâs 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, âsuccession lawâ mostly encompasses the destination of a personâs property after his or her death, although Heather Conwayâs chapter on Williams v Williams is an important reminder of the importance of the destination of oneâs earthly remains.3 The aim of the series, edited by Paul Mitchell, is âto 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 âLandmarkâ cases in any given fieldâ.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 âlandmark case in succession lawâ. 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 BOOKâS STRUCTURE AND CONTENT
The vast majority of the volumes in Hartâs 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 Meeâs chapters,8 addressing testamentary promises in New Zealand and England and Wales respectively, to be separated by Judith Skillen and James Leeâs 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 Hartâs forbearance, I have also broken with convention both by including several chapters on cases that are not directly relevant to English law (Walter Pintensâs on S and S,10 Nicola Peartâs on Re Welch,11 Daniel Carrâs on Lashley v Hog,12 Prue Vinesâs on Re Estate Wilson, deceased13 and to a lesser extent Ying Liewâs on Birmingham v Renfrew)14 and by commissioning two on cases decided just around two years before submission of the manuscript (Prue Vinesâs 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 âfree choice of case, and complete freedom of method in how to approach their materialâ 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 HĂ€cker tells the fascinating story of All Souls v Codrington, involving how a bequest of a âlibraryâ contributed to the establishment of the rule that a will speaks from death.18 Jesson v Wright is the focus of Neil Jonesâs contribution, the case being the leading one on the ill-fated rule of construction known as the rule in Shelleyâs 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 ârightâ 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 âsubstituted judgmentâ- to a âbest interestsâ-oriented approach heralded by the Mental Capacity Act 2005, it may yet have an influential afterlife as a landmark cas...