Grounds For Appeal On The Administrative Law - Essay Example

Grounds For Appeal On The Administrative Law Ground 1 Non-Adherence of the section 9 of the Wills Act, 1837 as regards to Due Formality It is submitted that the provisions of the section 9 of Wills Act, 1837 as regards to due formality, was not followed in this case. The main issue is that Ms Cheryle Vallee is the defendant, and she is the main witness for the case. This is totally against the provisions of section 9 of the Wills Act 1837 as the above section requires that a witness should not be the beneficiary of the will or a donee. Under section 15 of the Wills Act 1837, if a donee or beneficiary signs or acts as a witness to the signature of a will, that individual will not be eligible to claim the gift or bequest that property under the said will. In Estate of Bravda case, a testator executed a will on a piece of notepaper1. Though , there had been two independent witnesses as required under section 9 of the Wills Act ,1837 , the testator’s two daughters were also signed as witnesses. However, this is contrary to the section 15 of the Wills Act, 1837. In the above case, the gift was confronted on the footing that under s.15 of the Wills Act 1837, a beneficiary who stood as a witness to a will could not take a gift under that will. In this case, all the three judges declined to fine tune with the customary interpretation of s.15. Salmon LJ viewed that the wording of s.15 of the Wills Act 1837 are too simple, and the section makes it obvious that if any individual signs as a witness to any gift , then such gift shall be declared as null and void2. It is submitted that in Miller case, Jekyll MR had held that a supposed donatio of a coach and horses to the donor’s wife failed as there had been no evidence of delivery. The same rationale will be applicable in Bogusz case also as there is no evidence for handing over of the title deeds of the home and the relevant keys to Ms Cheryle Valley3. Ground 2 Non-existence of Proprietary Estoppel for Ms Cheryle Vallee The so called gift by Bogusz to Ms Cheryle Vallee has established a mere expectation on the part of the donee namely Ms Cheryle Vallee. However, it is to be noted that proprietary estoppel of 1975 Act will not come to help in Ms Cheryle Vallee case. Under English law, there will be transfer of rights under proprietary estoppel if somebody has given a concise promise that they will inherit or acquire a privilege over a property provided if they reasonably bank upon such a promise and if they act in a major way not to their disadvantage on the footing on that promise. If the above stated ingredients of promises, disadvantage and dependence are present, the usual relief will be that the property will be vested with the claimant, if the court is of the view that there is a need to permit a claim in the said scenarios. In Pascoe case, after residing in a house owned jointly by an individual along with his wife, he left that house to a mistress thereby promising her that the house would be her after his death. On the basis of that promise, the mistress spent on repairing, refurbishing and on redecoration. However, there was no written contract or conveyance in favour of the mistress. The mistress filed an action for possession of that property under the proprietary estoppel legacy. The Court of Appeals observed that under the bare licence from the owner, the mistress occupied the house and thus, she received an imperfect gift of the house and hence, no trust could be construed. However, the mistress was encouraged to refurbish and repair the house which denotes that there had been a proprietary estoppel. By selling the house by that individual, a mere licence could be disregarded. For the perfect transfer, there should be a proper conveyance deed in favour of mistress by that individual and hence, in such case, the claim for the proprietary estoppel failed4. In the above case, though, Ms Turner spent a small sum of £ 300 for refurbishing the house, as this was a meagre sum as contrasted to the value of the property, the court was under an obligation to honour the equity which had emanated in Ms Turner favour, and that equity could not be promised to her during the tenure of occupancy, thereby granting rights for utilising the property and freedom to carry out the repairs without meddling by the plaintiff. Thus, in this case, the court has ordered the plaintiff to register the property in the name of Ms Turner. In Jennings case and in Campbell case, the Court of Appeal considered the claim under the proprietary estoppel which was made by the claimant’s carers. In the above cases, the carers were promised by the aged individuals that if he prolonged to live with them and if adequate care was given to them; they would leave their home to them. Unfortunately, after their death, carers found that no provision to that effect, had been made. Thus, in the above cases, the claimants claimed unconscionability which is the crux issue of the proprietary estoppel5. In Bogusz case, Ms Cheryle Vallee cannot claim proprietary estoppel as there is a lack of physical control of the subject property by the Ms Cheryle Vallee and hence, it is submitted that the Court of Appeal should set aside the verdict given in favour of Ms Cheryle Vallee by the High Court, Chancery Division. Ground 3 Non Applicability of donatio mortis causa (DMC) In this case, donatio mortis causa (DMC) is not applicable as Bogusz survived more than 4 months and DMC refers to gift in death bed, and the testator should be unable to sign a formal will as he is in extremis. In this case, Bogusz was not in death bed and survived more than 4 months where he had adequate time to draft a will and get it registered in favour of Ms Vallee6. It is submitted that in the following cases, DMC was acknowledged by the court where gift and death occurred only within a few days. Name of the Case Law Number of days where death occurred after making the gift Woodard v Woodard 3 days Sen v Headley 3 days Re Craven’s Estate 5 days It is submitted; however, that the contemplation of death within five months should not be regarded as “impending” death, and it cannot fall under the doctrine of donatio mortis causa. In the present case, the High Court failed to take into consideration the long duration of survival (nearly 4 months) after making the gift. Further, High Court has erred in declaring the same as a death bed gift (DMC) by not applying legal interpretation of the meaning of DMC under the law. A man who has survived more than 4 months had adequate time to make a will and since Mr. Bogusz had not done so, hence, the High Court failed to recognise the issue and hence, the decision is to be set aside. Ground 4 Serious Procedural and other Irregularities It is submitted that there are a lot of serious procedural or other irregularities in this case. The main irregularity is that there had been an abnormal delay in raising the plea of Donatio. Mr.Bogusz who died on 9th December 2003 and after a gap of four years and only during 2007, Ms Vallee raised her claim to TSol. Hence, there is an inordinate delay on the part of Ms. Vallee to make a claim of the Eldon Street house for which no valid reason had been given by Ms Vallee and the High Court also failed to take the same into the account. Further in this case, there had been no adequate evidential backing Ms. Vallee’s claim as the first evidence was given only after the service of the notice by the court and only during her second witness statement and further, the documents were disseminated for the first time on the day of the Trial only. The above indicates that there are several serious procedural and other irregularities and there is an urgent need on the part of the Court of Appeal to set aside the verdict of the High court. Ground 5 Failure to adhere procedural formalities It is submitted that there was legal vagueness present as regards to Plea of Donatio with respect of gift of land and there exists procedural lapses in the finding of the High Court in this case. In Greater London Council case, the Lord Justice Muskill recognised four methods in which a verdict might be procedurally incorrect, viz. Unreasonable demeanour towards individuals which is impacted by the verdict. Failure to adhere a norm prescribed by the law Failure by not marshalling the corroboration properly or not willing to initiate required steps to gather the particular information. Unable to marshall the available evidence on which the verdict should be footed upon. For instance, not taking into account a vital factor, taking into consideration of an irrelevant material or factor or failure to initiate reasonable steps to gather the particular information. Not capable to approach the decision in correct vigour. For instance, where the decision is influenced by bias or where the decision has been arrived at by chance.7 In the present case, Jonathan Gaunt QC observed that the delivery by Mr Bogusz of the title deeds and a key to the house to his daughter in contemplation of his impending death, accompanied by what he said, was a sufficient delivery of dominion over the house to constitute a valid donatio mortis causa. It is submitted that the Judge had taken into account of immaterial matters and there are many procedural lapses and thus erred in his decision and hence the same has to be overturned by the Court of Appeal. Ground 5 Non-adherence of the provisions of the CPR 44.3 It is submitted that the Judge failed to consider the provisions of CPR rule 44.3. According to Civil Procedure Rules 44.3(2), when costs are to be evaluated on the standard norms, the court will only permit those costs that are impartial to the matter which is under consideration. Now, the Courts have to deal with cases not only with justness but also with awarding of proportionate costs. Hence, under CPR, any disproportionate cost shall have to be disallowed despite of the fact of what basis the cost is being evaluated. Thus, under CPR 44.3 (2), now, any disproportionate costs will be reduced or disallowed even if they were necessarily or reasonably incurred8. In Lownds case, it was held that the court must make an exhaustive valuation of the proportionality of the cost asserted upon by taking into consideration of the various elements of cost as detailed out in CPR 44.5(3) like significance, demeanour, value, intricacy and skill, if the costs are deemed to be inconsistent and in such cases, each item shall have to pass the litmus test of necessity where unwanted costs are to be eliminated and this rule is known now as the Lownds test9. Thus, in this case, the High Court Judge had included disproportionate cost and hence, it has to be disallowed. Ground 6 Number of contradictions and inconsistence There are lot of contradictions and inconsistencies in this case which the High Court Judge had not taken into account or just ignored the same. Ms Cheryle Vallee occasionally and rarely visited her father Wrodzimierz Johnny Bogusz, and she visited only during Christmas every year. Further, Ms Vallee claimed that she visited her ailing father on 6 August 2003. This shows that even though she was aware that Bogusz had bad health, she never took care for him by hospitalising him or met his medical expenses. Thus, Vallee’s indifference can be surmised from the fact that despite the fact that Bogusz admitted during her last visit that he did not anticipate living long and may not be alive during her next visit, she arrived at the property only after she was informed about her father’s death by Coroner’s office. Thus, after the death of her father, Ms Vallee might have taken the possession of title deed, keys and plastic bag containing photo album and war medals. Further, there is no evidence that Bogusz handed over her property’s title deeds, its key and other items. It is to be noted that Ms Cheryle Vallee is able to succeed on her own evidence alone, which is unsupported with evidence. There is every chance that she might have taken possession of the same from his father’s home after her father’s death and hence, claim for donatio mortis causa (DMC) shall have to be declared as void. Works Cited Bailey, Jones & Mowbray. Cases, Materials and Commentary on Administrative Law. London: Sweet & Maxwell, 2005. Cooke, E. Modern Studies in Property Law, Volume 2. London: Hart Publishing, 2003. Jackson, R M. Review of Civil Litigation Costs: Final Report. London: TSO, 2010 Lawson, Anna. "The things we do for love: detrimental reliance in the family home." Legal Studies 16.2 (1996): 218-231. Mildred, Mark. "Cost–sharing in Group Litigation: Preserving Access to Justice." The Modern Law Review 65.4 (2002): 597-602. Moffett, William. "Deathbed gifts in rude health: the recent case of Vallée v Birchwood." Trusts & Trustees (2014): ttt243 Paisley, Roderick RM, and M. J. De Waal. "Forfeiture of bequests to witnesses in South Africa and Scotland." Stellenbosch L. Rev. 13 (2002): 187. Pawlowski, Mark. "Chattels: I have bought it all for you." Family Law Journal March (2007): 7-10 Zander, M. The Law-Making Process. Cambridge: Cambridge University Press, 2004. Court Cases Campbell v Griffin [2001] EWCA Civ 990 Estate of Bravda [1968] 2 AII ER 217 (CA) Greater London Council (1985) Jennings v Rice [2002] EWCA Civ 159, CA 22 Lownds v Home Office [2002] EWCA Civ 365 Miller v Miller (1735)3 P Wms 356 Pascoe v Turner [1979] 1 WLR 431 Re Craven’s Estate [1937] Ch 423 Sen v Headley [1991] 2 All ER 636 Vallee v Birchwood [2013] EWHC 1449 (Ch) Woodard v Woodard [1995] 3 All ER 980, CA Read More