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DECISIONS OF PROFESSIONAL
INTEREST
Solicitorbeneficiary]oj'willheldnot entitled to benefit under it.
THE House of Lords (Viscount Simonds, Lord Reid,
Lord Tucker, Lord Keith of Avonholm, and Lord
Birkett) unanimously allowed the appeal of Lieu
tenant-Colonel Alfred Wintle, M.C., from a decision
of the Court of Appeal (Lord Justice Hodson, and
Lord Justice Morris, Lord Justice Sellers dissenting)
(The Times,
December 17, 1957), dismissing an ap
peal from the judgment of Mr. Justice Barnard
(The
Times,
May 20, 1957) in favour of the respondent
Frederick Harry Nye, a solicitor, on the trial of the
action in the Probate, Divorce and Admiralty Divi
sion.
The appellant's claim was for revocation of a grant
of probate of the will of Miss Kathleen Helen Wells,
a cousin of the appellant, dated August 4, 1937, and
a codicil dated November 13, 1939. The testatrix
died on December 6, 1947.
The appellant sued as assignee of the interest in
the estate of one of the next-of-kin and claimed that
the will and the codicil were not duly executed and
that the testatrix did not know or approve the con
tents thereof. The case for the appellant was that
the testatrix was a simple old lady of limited under
standing incapable of grasping a long and complex
document and that its effect was that, after payment
of various legacies, the bulk of her estate of £115,000
was to vest in the respondent, who drafted the will.
Viscount Simonds said that at the trial of this
action, the Judge's summing-up was so gravely at
fault as to amount to a misdirection. His Lordship
agreed with what Lord Justice Sellers said in the
Court of Appeal to the effect that it encouraged in
the minds of the jury a benevolent and sympathetic
consideration of Mr. Nye's evidence and in no way
led the jury to a critical approach to what he said or
what he would appear to have done.
It was not the law that in no circumstances could
a solicitor who prepared a will take a benefit under it.
But the fact created a suspicion which must be re
moved by the person propounding the will. The
Court must be vigilant and jealous. In the present
case the circumstances were such as to impose on
the respondent as heavy a burden as could well be
imagined. Here was an elderly lady, unversed in
business, having no one to rely on except her soli
citor. Here was a will made by him under which he
took the bulk of her large estate, a will of a com
plexity which demanded for its comprehension no
common understanding. The will was retained by
him and no copy was given to her. No independent
advice was received by her. The codicil cut out
reversionary legacies, allegedly for the benefit of
annuitants, but in fact for the benefit of the rever
sionary beneficiary.
All these circumstances de
manded a vigilant and jealous scrutiny by the Judge
in his summing up.
The summing-up fell short of what the law re
quired. It was not enough for the Judge to say to
the jury that, if they believed the respondent, they
could decide in his favour. It was imperative that he
should point out the considerations for them to bear
in mind in deciding whether or not they should
believe him. The Judge encouraged the jury to treat
the will and codicil as standing or falling together.
That might be unobjectionable if he had then gone on
to point out how fraught with suspicion was the
codicil. He failed to do so. There were circumstances
which created the gravest suspicion that the testatrix
had little idea of the extent of the benefit she was
conferring on the respondent and that she was un
aware that she was giving him a substantial fortune.
There were many examples of the uncritical way
in which the Judge displayed the evidence for the
consideration of the jury.
There was such mid-
direction that the verdict could not stand.
The case would be remitted to the High Court on
the footing that the will was invalid in respect of the
beneficial bequests and devises to the respondent,
and that the codicil was pronounced against.
The appellant would be paid all his costs out of
the estate. The respondent would have his costs in
the High Court out of the estate and would bear his
own costs in the Court of Appeal and the House of
Lords.
(Wintle
v.
Nye—
The Times,
December 19,
1958).
The requirement ofR.S.C., Ord. zz, r.
i (2),
that a notice
of payment into court in satisfaction of several causes of
action should specify what sum is paid in respect of each
cause of action is directed to cases where the relief claimed
is cumulative, not to cases where the trvo causes of action
are alternative methods of claiming the same relief.
The plaintiff appealed against those parts of the
judgment of Donovan, J., given on Jan. 17, 1958,
which (i) quantified the damages awarded to him for
the defendants' negligence and breach of their statu
tory duty at £760, (ii) ordered him to pay the de
fendants the costs of the action after the date of
payment into court by the defendants of £1,000, and
(iii) ordered that any balance of such costs over the
plaintiff's costs down to the date of payment in
be paid to the defendants out of the £1,000 in court.
The C
ourt of Appeal (Lord Somervell, Morris and
Pearce,
L.JJ.) allowed the appeal on the first point
and increased the damages to £1,160 :
as this was
more than the sum paid in, the other two points of
Donovan, J.'s decision did not arise, but the Court
of Appeal expressed their opinion on the second