| Source: | All England Reporter |
| Publisher Citation: | [2007] All ER (D) 488 (Oct) |
| Court: | Court of Appeal, Civil Division |
| Judge: | Sedley, Maurice Kay and Rimer LJJ |
| Representation | Mark Blackett-Ord (instructed by IBB Solicitors) for the claimant. |
| Mark Warwick (instructed by Nabarro) for the defendant. | |
| Judgment Dates: | 31 October 2007 |
Catchwords
Will - Mutual wills - Identical terms - Husband and wife - Husband and wife making wills on same date in similar terms leaving estate to children and grandchildren - Husband and wife subsequently executing codicils - Wife dying - Husband disputing codicils ever made - Claimant grandson commencing proceedings seeking probate and declaration that wills and codicils taking effect as mutual wills - Claimant seeking to amend particulars of claim - Judge refusing application - Whether judge erring.
The Case
Where the claimant commenced proceedings seeking probate of his grandmother's 1988 will and 1998 codicil, and a declaration that the wills and codicils that he had been told had been executed by his grandparents took effect as mutual wills, the judge had erred in failing to allow the claimant to amend his particulars of claim. The conclusion that the judge had reached as regards a certain paragraph of the amended particulars of claim, that the case was manifestly unarguable, could not be justified. The judge should have taken a more cautious approach, and allowed the claimant to argue the point as the issue was one of law.
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