Ensor v Frisby

The applicants, Ensor and Frisby, sought a declaration that a specific gift in the will of Elizabeth Baldwin did not lapse by virtue of the sale of the property in question. The respondents were the executors of the will, and the court was required to determine whether the gift was adeemed by the sale of the property during the deceased’s lifetime. The court had to examine the provisions of the will and the circumstances surrounding the sale of the property to determine if the gift was indeed adeemed. The applicants, who had been appointed as power of attorneys by the deceased, were unaware of the contents of the will at the time of making the decision to sell the property. The court also needed to consider the impact of the deceased’s dementia on the validity of the sale and the execution of the power of attorney.

The court found that the gift was not adeemed by the sale of the property, as the power of attorney did not include the authority to dispose of the property in question. The court held that the sale was not effective as it was not within the scope of the power of attorney. Furthermore, the court determined that the applicants were entitled to the specified sum from the proceeds of the sale, with interest and deductions for income tax. The court also ordered that the costs of the application be paid from the monies owed to the applicants before the balance was paid to them.

In conclusion, the court declared that the gift in question was not adeemed by the sale of the property. The applicants were entitled to the specified sum from the proceeds of the sale, with interest and deductions for income tax. The costs of the application were to be paid from the monies owed to the applicants before the balance was paid to them. This decision provides clarity on the rights of the applicants and the distribution of the estate in accordance with the will.