The Gazette 1958-61

DECISIONS OF PROFESSIONAL INTEREST

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 Court 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

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