Will overuled by judge

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Discussion

anonymous-user

53 months

Tuesday 28th July 2015
quotequote all
flemke said:
Breadvan72 said:
Have a look at the Act for the definitions.

http://www.legislation.gov.uk/ukpga/1975/63

The CA decision linked to above gives guidance on how the 1975 Act is applied. It is not successfully invoked very often. Most challenges to Wills fail.
In the wake of this ruling, surely there will be an increasing number of successful challenges to wills?
I am inclined to doubt that. The case turned on its facts. The Act has been around for four decades, and yet the floodgates have not opened.

9mm

3,128 posts

209 months

Tuesday 28th July 2015
quotequote all
ash73 said:
Eclassy said:
zedstar said:
Wasn't one of the issues raised that the mothers wealth was enhanced (or whatever) by the death of her husband/daughters father 2 months before she was born. Seems fair that the daughter gets something for the fathers contribution....?
This makes more sense
Why? If it was inherited by the mother, it's hers to do with as she pleases. If someone pisses her off and she writes them out of her will it's her choice. Well obviously it isn't, because the judge said so, but that's how I think it should work.
Look at it this way. You, your mother and father get on well, you may even have an especially good relationship with your father. Mum and Dad have a simple will leaving everything to each other.

Dad dies suddenly. Mum gets everything. Mum then gets a shedload of compensation as Dad died in an industrial accident. You know Dad wou,d have wanted to make provision for you.

But then you fall out with Mum, who disinherits you. Does that seem right? On top of that, you're broke when Mum dies.

I think the above scenario has some similarities with the case under discussion.

Derek Smith

45,513 posts

247 months

Tuesday 28th July 2015
quotequote all
rb5er said:
Derek Smith said:
williamp said:
Sorry for the formatting. Im on my tablet.
My point is that the person is dead. Why should they have any say over where the money which is no longer theirs goes?

They are out of it. It seems to me to be very selfish, directing you money from the grave. All rather morbid.

When I'm dead if my kids piss it up against a wall I won't mind 'cause I won't know. Is my point that difficult to understand?

Or to put it another way: when you are dead you don't own anything.

A vicar said to me (and others) that a funeral is for those alive. A horse drawn hearse does nothing for the occupant. They have no interest in the matter.

Why should they have control?
Surely not serious?

So your kid does something terrible, horrific and unforgivable one day. I won't spell it out just let you consider what that could be......

You think a judge should be able to gift them your wealth if you have chosen to give it to the kids that deserve it?
I can't seem to get over my point.

It doesn't matter to the deceased who their money goes to. They are dead. Their circumstance epitomises that of the Norwegian Blue.

Your extrapolation of what you assumed my point to be is not sustainable. The court were of the opinion that the daughter had a right to the money. A right. The court can't take into account the beliefs with regards the behaviour of the daughter. She had a right in law to the money. If they have a lein on it, then so be it. The mother's judgment of the daughter is not relevant to the decision.

To repeat what I said earlier: the woman went to her death certain of having got one over her daughter. So she got what she wanted. Once she was dead, anything that happened to that money had no effect on her whatsoever.

I must say that I reckon when I am dieing I do not expect the direction my money takes will seem that important to me.

It is a tragedy that your last act on this earth will be to hurt those who love you. A sobering thought. Worse still is that for most people, the thought of having your death unmourned is equally unbearable. This woman's daughter presumably spent little time at the graveside so perhaps her pain was minimal.


Ali G

3,526 posts

281 months

Tuesday 28th July 2015
quotequote all
flemke said:
Have you read the ruling?
Again, this is a case of 'right to inheritance' from deceased parent - not 'right to maintenance' from living parent.

'Will' has been contested, with good cause, and found improper.

This does not set a precedent for claims of maintenance by adult offspring from living parent(s)

That would be a totally different can 'o whoopasse!

smile

Red 4

10,744 posts

186 months

Tuesday 28th July 2015
quotequote all
Breadvan72 said:
I am inclined to doubt that. The case turned on its facts. The Act has been around for four decades, and yet the floodgates have not opened.
There was a similar(ish), well, not so similar really but kinda similar in a roundabout kinda way - ruling not so long ago ...

Deceased left all of his/ her estate to child number one.

Deceased had 2 children.

Second child mounted a challenge (iirc child 2 had mental health issues (depression) and this was taken into account - did not work, unable to support himself without state help, etc).

Ruling was child 2 was entitled to a cut.

I CBA searching for the case but the fact is wills are not set in stone.


Derek Smith

45,513 posts

247 months

Tuesday 28th July 2015
quotequote all
flemke said:
You surprise me, Derek.

Would you also be in favour of turning cemeteries into car parks?
Do you think that there are not the corpses of those that went before under most car parks now?

I've lost people close to me, and whom I've loved dearly. Some were buried. They are now returned to the soil. I plant flowers on anniversaries on stones covering dirt. When I'm gone, there will be no one to mourn. It will not matter to me, or them come to that, what happens to the plot.

So apart from not liking any open ground being tarmacced over, I've got no problems with my grave being walked on. Or even parked on. As I've stated: I'll have no idea.

The idea of me owning a little plot in perpetuity, taking it away from the living, seems to me to be immoral.


9mm

3,128 posts

209 months

Tuesday 28th July 2015
quotequote all
Derek Smith said:
rb5er said:
Derek Smith said:
williamp said:
Sorry for the formatting. Im on my tablet.
My point is that the person is dead. Why should they have any say over where the money which is no longer theirs goes?

They are out of it. It seems to me to be very selfish, directing you money from the grave. All rather morbid.

When I'm dead if my kids piss it up against a wall I won't mind 'cause I won't know. Is my point that difficult to understand?

Or to put it another way: when you are dead you don't own anything.

A vicar said to me (and others) that a funeral is for those alive. A horse drawn hearse does nothing for the occupant. They have no interest in the matter.

Why should they have control?
Surely not serious?

So your kid does something terrible, horrific and unforgivable one day. I won't spell it out just let you consider what that could be......

You think a judge should be able to gift them your wealth if you have chosen to give it to the kids that deserve it?
I can't seem to get over my point.

It doesn't matter to the deceased who their money goes to. They are dead. Their circumstance epitomises that of the Norwegian Blue.

Your extrapolation of what you assumed my point to be is not sustainable. The court were of the opinion that the daughter had a right to the money. A right. The court can't take into account the beliefs with regards the behaviour of the daughter. She had a right in law to the money. If they have a lein on it, then so be it. The mother's judgment of the daughter is not relevant to the decision.

To repeat what I said earlier: the woman went to her death certain of having got one over her daughter. So she got what she wanted. Once she was dead, anything that happened to that money had no effect on her whatsoever.

I must say that I reckon when I am dieing I do not expect the direction my money takes will seem that important to me.

It is a tragedy that your last act on this earth will be to hurt those who love you. A sobering thought. Worse still is that for most people, the thought of having your death unmourned is equally unbearable. This woman's daughter presumably spent little time at the graveside so perhaps her pain was minimal.
I think that's the same argument used to justify taking body parts without the deceased's consent.

I don't like it much and I think the law has it about right, both with inheritance and organ donation.

anonymous-user

53 months

Tuesday 28th July 2015
quotequote all
flemke said:
The Court of Appeal overruled previous rulings by other judges who also were in possession of all the facts. I have dealt personally with one of the judges (when he/she was a barrister) and can vouch for the high intelligence and professionalism of that person.

...
That is what the Court of Appeal is for. Judges, being human, are fallible, so we have an appeal system (most appeals fail, BTW). The first and second tier Judges were intelligent and professional, but so too were the third tier (Court of Appeal) Judges. In my experience, Court of Appeal Judges are very clever, conscientious, and careful. They can get things wrong, of course, and are subject to further appeal to the Supreme Court in some cases. Sometimes cases are referred by one of the Courts to the European Court of Justice (this won't happen here, as there is no EU point at issue - contrary to what Farage et al say, most of our law is still domestic, not EU). Some cases end up with a challenge to the UK's legal provisions in the European Court of Human Rights (where the UK wins most of its cases, whatever BS the Mail spouts on that subject).

flemke

22,864 posts

236 months

Tuesday 28th July 2015
quotequote all
Breadvan72 said:
flemke said:
Breadvan72 said:
Have a look at the Act for the definitions.

http://www.legislation.gov.uk/ukpga/1975/63

The CA decision linked to above gives guidance on how the 1975 Act is applied. It is not successfully invoked very often. Most challenges to Wills fail.
In the wake of this ruling, surely there will be an increasing number of successful challenges to wills?
I am inclined to doubt that. The case turned on its facts. The Act has been around for four decades, and yet the floodgates have not opened.
The floodgates have not opened - perhaps because, until now, the Court was expected to rule in the way it had ruled during those four decades.
The Court of Appeal clearly had a number of issues with Million's award (it was "vitiated with legal errors"), which award Parker upheld. Okay, maybe the claimant's previous representations were so poor that they undermined a claim that, with proper representation, would have been upheld, although I read no clear evidence of that. Rather, it seemed to me as a layman that the C of A had a (perhaps modernistic) interpretation of the 1975 Act that was at least marginally a departure from the previously accepted interpretation.

Shall we revisit this in 2 years' time to check the water level at the floodgates?

SamHH

5,050 posts

215 months

Tuesday 28th July 2015
quotequote all
flemke said:
What is next - a living parent might have assets expropriated in order to provide a "reasonable" income for an impecunious or profligate adult child who is living on benefits? That is the logical next step.
Eh? How is that logical? The provision that was applied in this case applies to dead people. How could it be used to take money from a living person?

flemke

22,864 posts

236 months

Tuesday 28th July 2015
quotequote all
Ali G said:
flemke said:
Have you read the ruling?
Again, this is a case of 'right to inheritance' from deceased parent - not 'right to maintenance' from living parent.

'Will' has been contested, with good cause, and found improper.

This does not set a precedent for claims of maintenance by adult offspring from living parent(s)

That would be a totally different can 'o whoopasse!

smile
Yes, but the Court's criteria for the award were based on the daughter's income. Her very claim was based on her impecunious circumstances.
If the daughter had been wealthy, she would not have received an award.


anonymous-user

53 months

Tuesday 28th July 2015
quotequote all
SamHH said:
flemke said:
What is next - a living parent might have assets expropriated in order to provide a "reasonable" income for an impecunious or profligate adult child who is living on benefits? That is the logical next step.
Eh? How is that logical? The provision that was applied in this case applies to dead people. How could it be used to take money from a living person?
Indeed. A lot of the comments here about potential whacky developments are just daft. The common law does not operate by making mighty leaps, but by slow increments, and in a field regulated by Statute the common law can't just make up some new remedy not derived from the Statute.

anonymous-user

53 months

Tuesday 28th July 2015
quotequote all
flemke said:
Ali G said:
flemke said:
Have you read the ruling?
Again, this is a case of 'right to inheritance' from deceased parent - not 'right to maintenance' from living parent.

'Will' has been contested, with good cause, and found improper.

This does not set a precedent for claims of maintenance by adult offspring from living parent(s)

That would be a totally different can 'o whoopasse!

smile
Yes, but the Court's criteria for the award were based on the daughter's income. Her very claim was based on her impecunious circumstances.
If the daughter had been wealthy, she would not have received an award.
I am not sure that you quite understand how the common law works. Please see my previous post.

I also recommend the book below to all interested non lawyers. I think that it's a good idea for non lawyers to have a working understanding of basic legal concepts. Good for society, I reckon.

http://www.amazon.co.uk/Understanding-Law-Geoffrey...






flemke

22,864 posts

236 months

Tuesday 28th July 2015
quotequote all
SamHH said:
flemke said:
What is next - a living parent might have assets expropriated in order to provide a "reasonable" income for an impecunious or profligate adult child who is living on benefits? That is the logical next step.
Eh? How is that logical? The provision that was applied in this case applies to dead people. How could it be used to take money from a living person?
It shouldn't be used for such a thing, but I see little difference between the state's expropriating assets of an estate and expropriating assets of the living. It's not like the intended heirs of the estate are dead.

anonymous-user

53 months

Tuesday 28th July 2015
quotequote all
Derek Smith said:
I've read most of Broken Lives. Thanks for the heads up.

Would you be interested in my views on it?

Derek
Yes, I would, but NB it is ages since I read it, so I have probably forgotten most of what it says.

If you cannot get hold of Uncertain Unions, I will post you my copy.

Have you tried Stone's big fat book on The Family, Sex and Marriage in Early Modern England? Better yet, read Keith Thomas' Religion And The Decline of Magic - mind blowing! If you like that, try Braudel - amazing!



Ali G

3,526 posts

281 months

Tuesday 28th July 2015
quotequote all
flemke said:
Yes, but the Court's criteria for the award were based on the daughter's income. Her very claim was based on her impecunious circumstances.
If the daughter had been wealthy, she would not have received an award.
If the daughter had been wealthy, then one may presume that she would not have pursued this case.

That said, I would contest that she still had a claim on her birth-right of inheritance.

Heck - wars have been fought, by and for, those who by birth (illegitimate or not) had some form of entitlement through birth to higher office!

We are, of course, far more civilised now.

smile


flemke

22,864 posts

236 months

Tuesday 28th July 2015
quotequote all
Derek Smith said:
flemke said:
You surprise me, Derek.

Would you also be in favour of turning cemeteries into car parks?
Do you think that there are not the corpses of those that went before under most car parks now?

I've lost people close to me, and whom I've loved dearly. Some were buried. They are now returned to the soil. I plant flowers on anniversaries on stones covering dirt. When I'm gone, there will be no one to mourn. It will not matter to me, or them come to that, what happens to the plot.

So apart from not liking any open ground being tarmacced over, I've got no problems with my grave being walked on. Or even parked on. As I've stated: I'll have no idea.

The idea of me owning a little plot in perpetuity, taking it away from the living, seems to me to be immoral.
One is entitled to decide what happens to one's remains. I don't know that that entitles one to decide what ought to happen to everyone else's remains.

No doubt there are many millions of skeletons now lying under blocks of flats, football stadia, housing developments, and shopping malls.
During my life, however, I can recall no instance in which a cemetery or other burial site has been willingly and indifferently bulldozed over simply because the dead won't notice what's happened whilst utilitarianism dictates that we must focus entirely on the present and future.
When remains of the dead are knowingly disturbed or moved, the process is handled with care and reverence - even though most people believe that the dead won't notice what's happened.

SamHH

5,050 posts

215 months

Tuesday 28th July 2015
quotequote all
flemke said:
It shouldn't be used for such a thing, but I see little difference between the state's expropriating assets of an estate and expropriating assets of the living. It's not like the intended heirs of the estate are dead.
If you're relying on a version of logic where the courts will apply this Act to take money other than from the estates of dead people, then it's pointless arguing. It says in the very first sentence that it's about what happens when "...a person dies..."

Edited by SamHH on Tuesday 28th July 23:34

flemke

22,864 posts

236 months

Tuesday 28th July 2015
quotequote all
Ali G said:
flemke said:
Yes, but the Court's criteria for the award were based on the daughter's income. Her very claim was based on her impecunious circumstances.
If the daughter had been wealthy, she would not have received an award.
If the daughter had been wealthy, then one may presume that she would not have pursued this case.

That said, I would contest that she still had a claim on her birth-right of inheritance.

Heck - wars have been fought, by and for, those who by birth (illegitimate or not) had some form of entitlement through birth to higher office!

We are, of course, far more civilised now.

smile
Well, we presume we are more civilised.

mondeoman

11,430 posts

265 months

Tuesday 28th July 2015
quotequote all
Breadvan72 said:
Eric Mc said:
Can this still be appealed or was this the final stage?
The case could in theory go to the Supreme Court, but is I think unlikely to do so, as the decision appears to turn on the facts of the case and raises no new or special principle of law.

As for the idea that the decision is unjust to a dead person, that seems to me an odd concept. A dead person can't be harmed. It is possible to trash a dead person's reputation in the eyes of the living, but the dead person doesn't notice, and the dead person certainly doesn't notice what happens to money.
Then why, playing Devils Advocate, is any will not overturned and a judge appointed to disburse the estate, as the dead have nothing to say and won't notice what happens?