Probate

Will granting beneficiary option to purchase property - property to be valued as at date of death - knowledge of subsequent events not imputed to valuerIn re Bliss (decd): ChD (Mr Justice Ferris): 2 April 2001Under the terms of the testatrix's will the claimants received an option to purchase one or both of two flats for 80% of their full market price as assessed by a valuer appointed by the trustees of the estate, subject to the (non-transferable) right of the testatrix's nonagenarian husband to continue to occupy one flat rent-free for as long as he wished/was able so to do.

The testatrix died in March 1998.

In September 1998 the husband vacated the flat to move into a nursing home.

The claimants applied for directions under Civil Procedure Rules 1998, part 8, among other things, as to the date at which the properties were to be valued and whether knowledge of subsequent events (such as the husband giving up his right within six months) should be imputed to the valuer.Daniel Lightman (instructed by Coles Miller, Poole) for the claimants.

Michael Templeman (instructed by Harold G Walker & Co, Bournemouth) for the first and second defendants.

Alistair Craig (instructed by Rickerby Watterson, Cheltenham) for the fourth defendant.

The third defendant in person.Held, that it was inappropriate to use the probate valuation because the husband's right of occupation was disregarded for probate purposes but not in relation to the option; that the principles in Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 should not be applied to substitute a figure representing what would have been the market value had the parties known facts not in existence on that date for the actual contemporaneous market value of the property; that the valuation of the option could only be affected by facts known at the date of the testatrix's death; that the valuer, in arriving at the market value, had to allow for the husband's right of occupation but also had to consider his age and health and the fact that his right was wholly personal; and that, since the option was an immediate gift intended to be proceeded with in the course of the due administration of the estate, the trustees did not have to allow for the cost of ongoing repairs to the property or reimburse the claimants for any money spent on