2013 recent development: Chp 3

Chp 3
Re Perrins, Perrins v Holland [2010] 
is a Court of Appeal case upholding the trial judge in applying the rule in
Parker v Felgate. This seems to be the first case where Parker v Felgate
has come before the Court of Appeal. But the problem with this
particular case is that the instructions for the will were given more than
a year before the will was executed and the beneficiary acted as link
between the testator and the solicitors who drafted the will. On the
particular facts, it may have been generous of the court to uphold this will.

Cowderoy v Cranfield
The deceased, who died at the age of 85 or 86 (there was some
uncertainty about her date of birth) suffered from progressive vascular
dementia in her final years. Her will was made some two years before
she died.
In it she appointed D as her sole executor and left her entire
estate to him. Her son, who had been living with her, had died roughly
three months before she made her will. He died intestate so that his
estate passed to C. The evidence indicated that X was unhappy about
this. Her son was an alcoholic. D got to know X as he was a friend of
another alcoholic who drank with X’s son. D began to visit and care for X
in the period before she made her will. C argued that X did not have
testamentary capacity to make the disputed will, that she did not know
and approve its contents and that it had been procured by undue
influence on D’s part. However, it was held (following Hoff v Atherton
and Re Perrins above) that the evidence justified the conclusion that the
deceased had testamentary capacity when she gave instructions for her
will and when she executed it, even though her condition fluctuated at
the time. She understood the extent of the property which she was
disposing of and was able to comprehend and appreciate the claims to
which she felt she ought to give effect. She was clear and settled in her
mind that she did not want C to benefit. She decided to leave her entire
estate to D not only because of what he had done for her but also because
she considered that leaving her estate to him would improve the chance
that he would continue to help her in the future. Further, she knew and
approved the terms of the will.
See also Gill v Woodall below.

On the topic of presumptions and so on, students may wish to read the
following article:

Ridge, P. ‘Equitable undue influence and wills’ (2004) 120 LQR 617.

The cases on lack of knowledge and approval follow on from this.
• Reynolds v Reynolds 
Although the elderly testatrix had testamentary capacity at the time of
making her will, and it had been validly executed, the defendant failed to
discharge the burden, cast on him due to the suspicious circumstances, of
proving that the testator knew and approved its contents. This is a case
where the will was prepared by a draftsman who stated that he had
taken instructions from the testatrix. The trial judge (Rimer J) did not
believe the draftsman. The judge held that the draftsman must have
taken his instructions from the beneficiary.

• Franks v Sinclair
This case involved a solicitor who drafted a will for his mother (with
whom he was not on good terms). The will left half her estate to him and
its execution was witnessed by one of the solicitor’s son’s partners and a
secretary from his office. It was held that the testatrix had not known
and approved of the contents of the will.

This is another case, like Wintle v Nye, where it is hard to see why the
plea was not fraud (rather than lack of knowledge and approval). If the
solicitor drafted a will for his mother, in which she left property to him,
and he then arranged for her to execute it, when she did not understand
its contents, surely this was fraud. The solicitor involved has since
appeared before a Disciplinary Tribunal and has been fined (£5,000 plus
costs), but some may be surprised that the penalty was not more severe.
？

• Re Rowinska
A testatrix aged 87 with a poor command of English was held not to have
known and approved of the contents of a will which purported to leave
her entire estate to the claimant beneficiary. The beneficiary had
prepared the will and friends of his witnessed it.

• Devas v Mackay (Re D)
A testatrix who had suffered several strokes was held not to have known
and approved of the contents of a will which left her estate to the son of
her carer. It seems that, after this civil case was over, those who had
prepared the will were charged with a series of criminal offences and
that they pleaded guilty to forgery. But, in that case, why did those who
attacked this will in the civil proceedings not do so on the ground of
forgery? It should be easier to prove forgery in civil proceedings than in
criminal proceedings. Those who attack ‘suspicious wills’ always seem
very reluctant to allege misbehaviour and this is a very clear example.

• Gill v Woodall
The deceased (M) and her husband (F) had executed mirror wills which
excluded G, their only child, stating that she had already been well
provided for. F predeceased M and when M died the RSPCA was the sole
beneficiary of her estate. G contested the validity of the will, arguing that
M had not known or approved of the terms of the will. M had suffered
from agoraphobia (曠野恐怖症), which caused her extreme anxiety when leaving home
and/or when in contact with strangers. The court adopted a two-stage
process to the question of whether M had known and approved of the
contents of the will. It found that there was a prima facie case that M had
not known and approved the contents but also found that that case had
been rebutted as F and M had both attended meetings with solicitors to
give instructions and for the wills to be read, confirmed and signed, and a
draft will had been sent to their home for consideration. However, the
court also found that M had executed her will under undue influence
from F and revoked the will. The Court of Appeal dismissed the RSPCA’s
appeal. The judge had been right, or at least entitled, on the evidence
before him to conclude that G had made out a prima facie case that M had
not known or approved of the contents of the will when she signed it.
However, the judge was wrong, and not entitled to conclude that the
RSPCA had rebutted that case. If the judge had approached the question
of knowledge and approval as a single issue, he might have reached the
right conclusion. It did not seem wise, particularly where there were a
large number of witnesses heard over many days, to consider an issue in
two stages when those stages ultimately involved the same question,
namely whether M had appreciated what was in the will when she
signed it.??

• Cushway v Harris
Harris, a solicitor, drafted wills for his two elderly aunts. Their earlier
wills had left their property to each other, but in these wills one third of
the residuary estate was left to Harris, who was also appointed executor.
It was alleged by the claimants that the testatrices lacked knowledge and
approval of the wills. The court observed that in this case both testatrices
were elderly, in poor health and one may have lacked testamentary
capacity. The suspicion of the court was raised, and Harris did not
appear to try and prove knowledge and approval. The court directed that
the papers be sent to the Director of Public Prosecutions to consider
whether any further action should be taken against Harris. This final step
suggests although the case was pleaded as concerning lack of knowledge
and approval, the court considered the case to be one of fraud. However,
fraud was not pleaded.

Then, contrast Reynolds, Franks, Rowinska and Devas with:
• Sherrington v Sherrington 
where the Court of Appeal allowed an appeal against the judgment of
Lightman J. The court held that the testator, a solicitor, had known and
approved of the contents of a simple will prepared for him by his nonlegally
qualified stepdaughter. In it he left his entire, and substantial,
estate to his second wife, his stepdaughter’s mother, so disinheriting the
adult children of his first marriage, with whom he was on good terms.
The facts of this case are unusual, but, given the result, it must be asked
whether it was the correct approach to attempt to attack this will on the
ground that the testator lacked knowledge and approval. It may well
have been a way of hinting at undue influence without formally alleging
it, but, if it was, it did not work. Would the children have stood a better
chance of success had they straightforwardly alleged undue influence?
?
• Gill v Woodhall, above,
(where, in the event, the Court of Appeal held it was unnecessary to
consider the issue of undue influence).
??

• Hubbard v Scott
An allegation that a sole beneficiary under a will unduly influenced a
testator was not established where there was no evidence that the
beneficiary had so victimised, dominated or coerced the testator as to
overbear his volition. The testator executed his final will in 2009, in
which he left his entire estate to K, his cleaner. He died 11 days after its
execution. In the instant proceedings, much of the disputed evidence was
concerned with the length and nature of the relationship between K and
the deceased, the allegation being that it was unlikely that he would have
left his entire estate to K, and that K must have exerted undue influence
over him when he made his final will. The will was upheld. The court
held that, as there was no presumption of undue influence in cases of
testamentary gifts, the test to be applied was more stringent than that
laid down in Royal Bank of Scotland Plc v Etridge (No 2).
In discharging the evidential burden of establishing
undue influence, victimisation, domination or coercion needed to be
established and it had to be shown that W’s final will was not the
offspring of his own volition.

• Wharton v Bancroft [2011] 
The deceased, who was terminally ill, made a will in contemplation of his
intended marriage to M, leaving the entirety of his substantial estate to
her. M was his partner of 32 years. The will was prepared by his solicitor
and read to him. M was not present when he gave instructions.
Immediately after making the will, he married M. He died a couple of
days later. His children from his first marriage and a child from an extramarital
relationship challenged the will, asserting that it was obtained as
a result of M’s undue influence. It was held (applying Cowderoy v
Cranfield, above) that the execution of a will as a result of undue
influence was a fact that had to be proved by those who asserted it. On
the evidence, the death-bed will in favour of M could not be explained as
the result of coercive pressure which deprived him of free choice. He had
understood that by giving ‘all to M’, he was not giving anything to
anybody else. The will-making process resulted in a document
containing the last true wishes of a free and competent testator.

A case where undue influence was (successfully) pleaded was:
• Re Edwards [2007]
This is one of the very few reported cases where undue influence had
been pleaded and the plea had succeeded. This was undue influence by
an adult child over his aged mother.
The following two cases show that draftsmen have to take care about
getting involved with suspicious wills. In:

• Sifri v Clough & Willis [2007]
the solicitor who drafted the will had to pay part of the costs of action to
set it aside. He had taken instructions directly from a beneficiary.
?
And in:
• Re Key, Key v Key [2010]
the will made by an 89-year-old man in the week after his wife’s death
was set aside for lack of capacity and lack of knowledge and approval.
Briggs J criticised the solicitor who had drafted the will for failing to
follow the ‘golden rule’ (which says that a doctor should be present if
there are doubts about capacity). This was particularly foolish of the
solicitor, as the will was quite different from earlier wills and benefitted
mainly the testator’s daughters (who were present when the
instructions for the will were given) rather than his sons (who were not
present). The reference to the ‘suspicious circumstances’ rule in this case
appears to be a clear reference to pressure put on the testator by his
daughters.

Then there are the cases on lack of due execution
• Sherrington v Sherrington, above,
was a case which also involved an allegation of lack of due execution and,
on this point also, the Court of Appeal allowed an appeal against
Lightman J’s decision and held that the will had been properly executed.
It is easier to sympathise with the Court of Appeal’s decision on this
point than it is in relation to lack of knowledge and approval. The Court
of Appeal was satisfied that the witnesses had signed the will with the
intention of attesting the testator’s signature or of attesting the will (Re
Beadle [1974] 1 WLR 417 approved). When a will contained the
signatures of the deceased and the witnesses and an attestation clause,
the presumption of due execution would prevail unless there was the
strongest evidence that the witnesses did not intend to attest. The will
was upheld.

• Channon v Perkins [2005]
The Court of Appeal considered and applied Sherrington. The will
appeared on its face to have been properly attested. The witnesses
accepted that the signatures on the will were theirs, but had no
recollection of having attested it. The Court of Appeal held that the trial
judge had been wrong to refuse probate. The strongest evidence was
required to rebut the presumption of due execution.

Channon was followed in:
• Re Morgan, Griffin v Wood [2008]
See also:
• Couwenbergh v Valkova, above,
where, in addition to rejecting the allegation of incapacity, the court also
held that, despite the fact that the evidence of the one living witness
being contradictory, it fell far short of the ‘strongest evidence’ required
(according to Sherrington v Sherrington, above) to rebut the
presumption of due execution.

• Re Rawlinson, Kayll v Rawlinson [2010]
where there was a (basically factual) dispute as to whether the testator
had acknowledged in the presence of both witnesses. Held, as a matter of
fact (not a question of a presumption), that he had. The judge in this case
followed the line that the testator does not need to do much in order to
acknowledge. It is suggested that this is the correct approach.

• Kentfield v Wright [2010]
A will which was regular on its face and contained an attestation clause
stating that it was signed in the presence of two witnesses was held to
have been properly executed in accordance with the attestation clause.
The evidence to suggest that only one witness had been present at the
time was not strong enough to rebut the presumption of due execution.
(Sherrington v Sherrington, above, applied.)
However, there are several recent examples of cases where wills have
been set aside for lack of due execution:

• Barrett v Bem [2012] 
A will was not validly executed under the Wills Act 1837 s.9(a) where a
testator, having expressly stated a desire to make a will, and approving
its contents, allowed the sole beneficiary under the will to sign on his
behalf after the testator attempted and failed to sign the will himself.
The Court of Appeal firmly rejected the argument that because the
testator had not objected to the beneficiary signing on his behalf, the
testator had directed the beneficiary to do so. The requirement of signing
at the testator’s direction in s.9(a) required a positive action by the
testator. In this case the testator had not positively requested the
beneficiary to sign on his behalf. The Court of Appeal observed, obiter,
that despite s.15 of the 1837 Act expressly rendering a gift to an attesting
witness ‘utterly null and void’, there was no statutory provision to cover
the situation in the instant proceedings, and it could not properly be
found that the gift was void on that basis.??
.
• Re Papillon [2006]
This is a case where the beneficiary prepared the will, but she was
caught out because of her poor command of English.

• Lim v Thompson [2009] EWHC 3341; [2010] WTLR 661.
A purported will containing a photocopied signature of a testator and
original signatures of two witnesses did not amount to a document that
had been signed by the testator at all in accordance with the Wills Act
1837 s.9 and was therefore not valid. There were several purported wills
here, but none of them was valid. One will had been attested by only one
witness; there was no evidence, in relation to another, that the deceased
had signed or acknowledged his signature in the presence of both
witnesses (and one witness had apparently not signed it until after the
deceased had died); and, as to a third will, the most that could be said
was that the witnesses had attested a copy of a copy of a will. A
photocopy of a previous version of a will with a photocopied signature of
the testator was not a document which was signed by the testator at all.
It did not matter whether the signature was attached in the presence of
the witnesses or merely acknowledged in their presence but it did have
to be an original signature so that the court could examine it and
properly evaluate the evidence as to due execution. Furthermore, the
circumstances in the case were so suspicious that no presumption of due
execution arose.

• Re Singh [2011]
A will was invalid where there was evidence of sufficient strength to
rebut the presumption of due execution arising from the witnesses’
signatures appearing together with an attestation clause. Here, the first
witness to the will maintained that he did not recall signing S’s will but
remembered an occasion when he had witnessed S’s signature on a
document when there had been no one else present. He also maintained
that he had never spoken to or met the second witness. It was held
(following Channon v Perkins, above) that there was a sliding scale
according to which evidence would constitute the strongest evidence
necessary to rebut the presumption of due execution in any particular
case. The burden had been satisfied here. The overall probability was
that the witnesses had signed separately. The evidence relied upon in
previous authority (specifically, Sherrington v Sherrington, Channon
Perkins, Couwenbergh v Valkova, and Kentfield v Wright, above) where
the presumption of due execution had not been rebutted, fell well short
of the evidence available to rebut the presumption in the instant case.

Note also the unusual case of:
• Marley v Rawlings [2012]
A mirror will which had been signed in error by the wrong spouse was
invalid pursuant to the Wills Act 1837 s.9(b), as the testator, in signing
the will, could not be said to have intended to give effect to that will. In
executing their mirror wills, both X and Y had mistakenly executed each
other’s will. The error went unnoticed both at the time of execution and
on the death of Y: it was not until X’s death that the error was discovered.
A claim for rectification was dismissed, because it was clear that X did
not intend, by his signature, to give effect to the will that he signed (as
required by s.9(b)).

Rectification
Returning to another aspect of the plea of lack of knowledge and
approval, the plea covers cases of mistake (and may well be applied
more logically in cases of mistake than in cases where there has been a
suspicion of misbehaviour).

Where there has been a mistake, a will may be rectified under s.20 of the
Administration of Justice Act 1982, but only if there has been a clerical
error or a failure to understand the testator’s instructions.
• Re Martin, Clarke v Brothwood [2006]
A solicitor included in a will the words ‘twentieth shares’ when the
testatrix really intended ‘twenty per cent shares’. It was not clear how
the error had come to be made, but, on the assumption that the testatrix
had used these words and the solicitor had inserted them without
realising that they did not make sense, the trial judge thought that this
was a ‘clerical error’. But was it? See casenote by R. Kerridge and A.H.R.
Brierley in [2007] Conv at pp.558–63.

• Martin v Triggs Turner Barton [2009]
This is also a rectification case, where it was held that the draftsman had
failed to understand his instructions. The draftsman was a solicitor who
denied that he had so failed, but the court did not accept his version of
events. This case demonstrates that it is essential for professional will
draftsmen to keep full attendance notes of their instructions.

• Gerling v Gerling [2010]
A will which created a partial intestacy by failing to appoint
remaindermen on the termination of a trust created in relation to half
share in the residuary estate was capable of being rectified under s.20
where to do so would not substantially prejudice the beneficiary affected
and where there was nothing to indicate any intention by the testatrix to
leave part of her estate undisposed of by her will. This case also
addressed the issue of applications for rectification made out of time (as
to which, see below).

• Re Bimson [2010]
It was plain that the testatrix intended that her trustees should have
power to advance capital to a particular beneficiary during his lifetime,
and it was assumed to be her wish that the power should be exercised in
order to ensure that he always had sufficient to meet his needs. However,
as the will stood, he had only a bare life interest and the trustees had no
power to release or advance capital to him. The will was rectified
accordingly.
?

• Austin v Woodward [2011]
A claim for rectification of a will was granted under s.20 where there was
clear evidence that the misuse of new precedents had led to the
testatrix’s intention that a beneficiary take a property absolutely not
being reflected in that will. It was clear in the light of the evidence that
the will as currently drawn did not reflect her intentions. It was plain
that the impugned provision of the will had been based on a new
precedent which had been used without any thought given to the impact
that that might have on the relevant disposition. There was no doubt that
an error of that type was a clerical error that was conducive to an order
for rectification under s.20(1)(a).
Note also:
• Marley v Rawlings, above,
where there was no error of drafting, whether by inclusion, omission or
miscasting of words, and the court could not therefore be satisfied of the
requirement in s.20 that it was ‘so expressed that it failed to carry out
the testator’s intentions’. Both of the wills were correctly expressed, and
the error lay in the tendering of the wrong will for signature. In those
circumstances, a remedy under s.20 was unavailable.
Section 20(2) of the Administration of Justice Act 1982 requires that an
application for an order for rectification ‘shall not, except with the
permission of the court, be made after the end of the period of six
months from the date on which representation with respect to the estate
of the deceased is first taken out’. This requirement has been considered
in a few recent cases.??
In:
• Gerling v Gerling, above,
the court observed that there was an unfettered discretion to grant
permission to make a claim for rectification outside that time limit. The
burden of establishing a case for making such a claim out of time was a
substantive one and lay with the person applying for relief; it was not
merely a procedural time limit. Relevant considerations included the
strength of the claim, the length of the delay, the reasons for the delay,
the prejudice to which it might have given rise, the promptitude with
which the claim was first notified, the existence of negotiations and
whether the estate had been distributed. Ultimately, it was for the court
to decide whether it was just and proper, in all the circumstances, to
extend time for making the claim.
In:
• Austin v Wooward, above,
although the application was substantially out of time, it was held to be
appropriate to grant an extension of time. The delays were not delays for
which the applicant could be criticised, and she had brought the
proceedings with reasonable promptitude (果斷). The fact that the estate had
not yet been distributed and that she would be significantly prejudiced
and left to a less perfect remedy if the extension was refused, were also
factors that led the court to hold that it was just and proper to extend
time in her favour.

2012 recent developements chp 3

Chp3 :
Hoff v Atherton:
Banks v Goodfellow was applied. Although the testatrix suffered from
dementia (痴呆) and the burden of proving capacity rested on the defendant,
and although the defendant’s involvement in the preparation of the will
also required proof that the testatrix had knowledge and approval, the
will was valid. The Court of Appeal stated that the test of capacity was
issue-specific (i.e. it must be considered in relation to the particular
transaction, its nature and its complexity). The will was a straightforward
one and it had been witnessed by an independent solicitor.

Sharp v Adam
The Court of Appeal upheld the decision of the trial judge to the effect
that the testator, who had made his will while in the final stages of
severely debilitating (身體虛弱的)progressive multiple sclerosis (硬化), had ‘crossed an
imprecise divide’. He lacked the capacity to arrive at a rational judgment
and there had been an inexplicable poisoning of his affection for his
daughters.

**Kostic v Chaplin
The deceased, who died in 2005, had made a will in 1988 and another in
1989, both in favour of the Conservative Party. His son, who had
benefited under earlier wills, alleged lack of capacity. It was common
ground that, from the 1980s, the deceased had suffered from a mental
illness which caused him to believe that members of his family were
implicated (有牽連) in an international conspiracy of dark forces against him. It
was held that the deceased’s natural affection for his son had been
poisoned by his delusions. Banks v Goodfellow applied. The deceased
lacked testamentary capacity when he made the 1988 and 1989 wills
and so his £8,000,000 estate passed to his son.

Re Loxston
A will prepared by a professional will draftsman for a 97-year-old
woman, against whom an enduring power of attorney had been
registered, was refused probate on the ground that the woman lacked
capacity. The draftsman had been summoned by the woman’s carer and
the will was (to a significant extent) in the carer’s favour. Some may
wonder why such a will was set aside for lack of capacity rather then
undue influence. Could not undue influence be presumed? The standard
response is that it could not, but it does seem odd that it is so difficult to
set such a will aside. The final result in this case, the setting aside of the
will, must be correct, but the costs of the case would have been
significant and (although this is not mentioned in the report) will almost
certainly have come from the estate.

Blackman v Man
A childless widow left her estate to a couple from a Chinese takeaway
who had befriended her. The will was challenged by nephews and nieces,
but there was not sufficient evidence of lack of capacity and the will was
upheld.

Couwenbergh v Valkova ??
A series of wills made by a 90-year-old testatrix, by which she excluded
her family who had been beneficiaries under an earlier will in favour of a
woman who had power of attorney for her, were duly executed, but were
invalid because she did not have testamentary capacity due to her
moderate to severe dementia. The solicitor involved did not actually
meet the deceased and was not present at the execution of any will.

Re Ritchie, Ritchie v Nat Osteoporosis Soc
The will, which was prepared by a solicitor and witnessed by a doctor
(thus abiding by ‘the golden rule’), disinherited the testatrix’s children
and left all her property to charity. It was refused probate on the
ground that the testatrix suffered from paranoia (unreasonable belief) and had been subject
to delusions.



Marley v Rawlings

Mutual wills, DMC

Revocation, alteration, revival

Chp 7 textbook

revival revives a revoked will or codicil, whereas a confirmation (or republication)  confirms an unrevoked will or codicil.

Revival
1. s.22 1837 -
i) by its re-execution with the proper formalities.
ii) by a duly executed codicil showing an intention to revive it.

Rogers v Goodenough - once a will is destroyed it cannot be revived.
In the goods of Hodgkinson - W1 to X, W2 realty to Y, destroyed W2. Held: as regard TOR's realty, W1 was not revived by the revocation of W2. So, personalty to X, but realty  passed on intestacy

In the goods of Davis - Will "all estate to Ethel". TOR then married Ethel, thus revoke the will. Later he put on the enveloped containing the will "the herein named Ethel is now my wedded wife", and this writing was signed and attested. Held: writing on the envelope was a codicil showing TOR's intention to revive the will.

W1 dated 1 Jan 2003
W2 dated 30 June 2007 and expressly revoked all former wills
Codicil "to my will dated 1 Jan 2003"
TOR dies
In the goods of May - the reference in the codicil to the date of W1 does not show an intention to revive it.
In the goods of Whatman -the description of the will by the codicil is ambiguous - W1 is not TOR's will at all, because it has been revoked.
In the goods of Stedham - but if the codicil not only refers to W1 by date, but also refers to the provisions, the codil shows an intention to revive it.

Effects of revival
s.34 1837 - a revived will is deemed to have been made at the time of its revival. A revived will operates as if it had been executed at that time.

s.22: if a will or codicil is firstly partly revoked, then later wholly revoked, revival does not extend to the part first revoked unless contrary intention.

Neate v Pickard - revival may validate an unattested alteration made to the will before its revival.
Revival may also incorporate a document which came into existence prior to its revival, but which was not in existence when the will was first executed.

Confirmation (republication: old naming)
i) re-execution with proper formalities (Dunn v Dunn)
ii) duly executed codicil containing some reference to it (Re Smith)

s.34 1837 - a confirmed will operates as if it has been executed at the time of its confirmation.

In the Goods of Rawlins -



Alteration
s.21 if the alteration is duly executed with the formalities required for the execution of the will, the alteration is valid.
Re White - TOR did not sign on the will in 1984, he only signed in 1981. the alterations is not valid, the original will was admitted to probate.
In the Goods of Blewitt - signature of witness in margin is ok

Part of will not apparent
an alteration after execution which makes any part of the will not apparent revokes that part if the testator
Apparent or not test: optically apparent on the face of the will itself. Extrinsic evidence is not permissable to determine whether the word is apparent or not (Townley v Watson).
A word in a will is not apparent if it cannot be deciphered by any "natural" means.
Ffinch v Combe -hold up to light
In the Goods of Brasier - magnifying glass.
Forbidden methods:
In the goods of Horsford - use chemical to remove ink, remove slip of paper pasting over the word  to see the previous word
In the Goods of Itter- Infra-red photo


Intention to revoke
TOR must have intention to revoke (Townley v Watson)
accidentally spilling ink - does not revoke that part

Conditional revocation
In the Goods of Itter - T put 1000, then later obliterates 1000 and put 2000. T's intends to revoke the original amount only if the new amount is effectually substituted. T's intention to revoke is subject to a condition which is not fulfilled (unless the alteration is duly executed or A later confirms his will): accordingly the original amount is admissible to probate. 
-Court may infer from the act that his intention to revoke was conditional on the validity of the substituted amount.

In the goods of Nelson - if T intends to revoke it but not to substitute any new words, his intention to revoke is absolute. Probate must be granted with a blank space for the words "five hundred".

In the goods of Itter - Even if he later changes his mind and writes the word "nine hundred", probate must be granted with a blank space for the words "five hundred".

In the goods of McCabe - Evidence as to the TOR's declaration of intention is admissible

Raising Capital

-just need one-quarter of the minimum capital to be 'paid up', s.586

Raising money:
- offer its shares for subscription
- an offer for sale: allot entire issue of shares to the issuing house (merchant bank). Issuing house will sell it to its client or general public
- a placing: placed with a group of merchant banks
- rights issue: new shares are offered to the existing shareholders in proportion to their existing shareholding. (pre-emption rights, s.561 2006)

FSA - Financial Services Authority, the UK Listing authority

Obligation when listing
-

Insider dealing
Crimianl
- s.397 FSMA - general catch-all provision
- Part V Criminal Justice Act 1993.
s.52(1)
s.52(2)(a) - induce others to deal in price-sensitive securities/disclose price sensitive info
Civil
s.118 FSMA
Market abuse -

Regulating takeovers
s.219

Statutory Minority protection

s.122(1)(g) 1986 - just and equitable to wind up
Ebrahimi v Westbourne Galleries - E was voted off the board using the power conferred by s.168 2006.
Held: just and equitable to wind up because E agreed to the formation of the company based on the essence that their business relationship will remain the same.
Factors:
- basis of the business was a personal relatiosnhip
- all certain shareholders will participate in management
- restriction on the transfer of members' interest

Grounds:
- Substratum has failed (Re German Date Coffee Co)
-  Fraud. The company was form in order to defraud the shareholders (Re Thomas Edward Brinsmead & Sons)
- Deadlock (Re Yenidje Tobacco Co)
- justifiable loss of confidence in company's management (Loch v John  Blackwood)
- exclusion from participation in a small private company where there was mutual confidence

If other remedies are available, a petition to wind up may be struck out (s.125(2))

s.994 - Unfair Prejudice
(a) company's affairs are conducted unfairly prejudicial to the interests of its member
(b)
Company affairs - Nicholas v Doundcraft Electronics: the failure of a parent company to pay debts due to its subsidiary
Re City Branch Group - director of holding company are also director of subsidiary (corporate veil?)
O'Neill v Phillips - conduct affecting the petitioner qua director will suffice
Re Ghyll Beck Driving Range - son has been unfairly excluded from the management of the golf range.
Held: ordered majority to purchase the petitioner's shares
Re a Company - company articles: a member, on ceasing to be director, would be required to transfer his shares to the company.
Director declined offer. He petitioned to restrain the compulsory acquisition
Interests

Lifting the veil

when to lift the veil:
1. IA 1986, s.213 - fraudulent trading provision. If in the course of winding up the company, anyone carried business intending to defraud the creditors could be called upon to contribute to the debts of the company. (Re Todd)
Re Patrick Lyon - definition: actual dishonesty.
Too difficult to satisfy the criminal burden.

s.214 is introduced to solve this problem: negligence rather than intend to defraud.

Point of no return - a reasonable director would stop trading at this time. Court might lift the veil - the director might be personally liable for the debt (Re Produce Marketing Consortium)

2.Judicial veil lifting -
Gilford Motor Company v Horne,
Jones v Lipman (the company was merely in front for the defendent)
DHN v Tower Hamlets - Denning.
Woolfson v Strathclyde disapproved Denning wholly owned subsidiaries - Z owns all the issued share capital of A,B,C. In realities there is just one business but organised through 4 separate legal personalities.
Adams v Cape Industries - Cape market abestos, also has a US marketing subsidiary.
Creasey v Breachwood Motors -