- (1.) LORD EVERSHED M. R. stated the facts and continued : The question raised by the summons and argued upon this appeal is a question of the effect upon the deed of February 19, 1930, of what is now section 486 of the Income Tax Act, 1952 (formerly section 25 of the Finance Act, 1941). [His Lordship read sub -section (1) of section 486, and continued :] The definition of 'appropriate fraction' is to be found in subsection (5). It is conceded that 'the appropriate fraction' in this case (if the section is applicable) is 23/29 thus. It is also conceded, that if the section is applicable, the 'stated amount' referred to is not the sum total of the obligations under the deed of appointment but what may be called the 'making up' figure contained in clause B.
(2.) AT first slight. It would seem (with all respect) that the question is not a difficult one; for by the deed 'provision' was 'made' for the payment of a 'stated amount' free of income tax, that provision being contained in a deed made before September 3, 1938 (which hereafter, for brevity, I will call 'the war date'), and not afterwards varied. But it has been argued in this court, and in the court below (and before Danckwerts J. the argument succeeded), that, upon more accurate use of language, it is not nature to say, in the circumstances of this case, that provision for payment of the sum in question was made before the war date. In the court below, the conclusion in favour of the defendant was Which Danckwerts J. thought bound him to hold as he did. In this court, the argument for the defendant by Mr. Charles Russell has, I think, been put on a somewhat different ground. But it will be convenient for me to turn first to Berkeley v. Berkeley. It was a case (Stating the facts quite briefly) in which, as a result of a will made before the war date by a testator who died afterwards, certain provision for payment of annual sums in favour of his wife were made; and the questions as whether it could be said that the appointment in favour of his wife contained in the testators will made - that is, executed - before the war date, though the testator survived that date, constituted a provision made before that date within the meaning of the section (then section 25 of the Act of 1941).
(3.) THE House of Lords answered that question negatively. As I read the speeches of the noble Lords, the ground upon which they founded their conclusion was, briefly, this : that a will in no sense in effective until the testators death : until that date the will is liable at any item to be wholly revoked : it is a mere expression of intention at the time that it is made. Though a man might, no doubt, say in ordinary conversation during his life that he had 'made provison' for his wife by his will, that in truth is not an accurate use of words : they only mean. More strictly construed, that he has executed a will which, if unrevoked will make provision for his wife on his death.;