Succession Law in UK

Succession

A. Borkowski

LLB 2670016 BSc Accounting with Law / Law with Accounting 2770410 BSc Management with Law / Law with Management 2770410

2004

This subject guide was prepared for the University of London External System by:

u Andrew Borkowski, Reader in Law, School of Law, University of Bristol.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom

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Published by the University of London Press © University of London 2004. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London

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Succession page i

Contents

1 Introduction 1

Introduction 2

1 1 Studying Succession 3

1 2 A suggested approach to study 4

1 3 The examination 7

2 Intestacy 11

Introduction 12

2 1 The evolution of the intestacy rules 13

2 2 Total intestacy 14

2 3 Partial intestacy 17

2 4 Critique and reform 18

3 Making a will 21

Introduction 22

3 1 Nature and characteristics of wills 23

3 2 Capacity to make a will 24

3 3 Animus testandi: knowledge and approval 26

3 4 Formalities 29

3 5 Incorporation 33

4 Revocation 37

Introduction 38

4 1 Revocation by marriage 39

4 2 Revocation by will, codicil or ‘some writing’ 40

4 3 Revocation by destruction 41

4 4 Conditional revocation 43

4 5 Alterations 44

4 6 Republication and revival 45

5 Construction 47

Introduction 48

5 1 The problem of construction 49

5 2 General rules of construction 50

5 3 Specific rules of construction 52

5 4 The admissibility of extrinsic evidence 55

6 Family provision 59

Introduction 60

6 1 Testamentary freedom or restriction? 61

6 2 Applying under the 1975 Act 62

6 3 The ground of the application 66

6 4 The powers of the court 69

6 5 Matters to be considered 71

6 6 Anti-avoidance provisions 74

page ii University of London External System

7 Entitlement 77

Introduction 78

7 1 Types and nature of testamentary gifts 79

7 2 Witnesses: s 15 80

7 3 Divorce and annulment 81

7 4 Lapse 82

7 5 Ademption 83

7 6 Forfeiture 85

7 7 Disclaimer 86

7 8 Uncertainty 87

8 Alternative succession 91

Introduction 92

8 1 Privileged wills 93

8 2 Statutory wills 94

8 3 Mutual wills 95

8 4 Conditional wills 97

8 5 Nominations 98

8 6 Donatio mortis causa 99

Feedback to activities 103

Chapter 2 105

Chapter 3 106

Chapter 4 107

Chapter 5 108

Chapter 6 110

Chapter 7 111

Chapter 8 112

Contents

Introduction 2

1 1 Studying Succession 3

1 2 A suggested approach to study 4

1 3 The examination 7

1 Introduction

University of London External System

Introduction

This subject guide is designed to help you to study the law of Succession of England and Wales. The law determines how a person’s property is distributed on death: how your property will be distributed on your death (assuming English law applies to you). It is thus a subject of fundamental importance and interest. Whereas a person may happily go through life unaffected by several ‘major’ areas of law, everyone is bound to be affected by the law of Succession.

Each chapter of the subject guide will indicate to you the most important aspects of the topic, provide a basic overview of the relevant law, and guide you as to the essential reading expected of you, with suggestions for further reading. In each chapter you will find Activities designed to test and extend your grasp of the topic covered, and Self-assessment questions so that you can monitor your progress. Each chapter also contains Sample examination questions, with advice on how to answer them.

Succession is a branch of property law with some links to land law, trusts, and personal property, as well as to family law. Although there is considerable statutory material in this module, the heart of the subject is in the rich case law. In studying the cases you will come across a fascinating panorama of eccentric testators, strange wills and disaffected beneficiaries.

Learning outcomesWhen you have completed this chapter, you should be able to:

u understand what the various elements of this subject guide are designed to do

u approach the study of Succession in a systematic way

u appreciate the technique for taking an examination in Succession successfully

u begin your study of Succession with confidence.

Succession 1 Introduction page 3

1.1 Studying Succession

1.1.1 A mixture of statute and case lawSuccession is part of the law of property. The rules are to be found enacted in statutes or contained in the decisions of the courts. The main statutes are the Wills Act 1837, the Administration of Estates Act 1925, and the Inheritance (Provision for Family and Dependants) Act 1975. You need to acquire knowledge and understanding of the important provisions in these Acts and an appreciation of how they have been applied and interpreted by the courts. Part of the law of Succession, however, is almost entirely derived from the decisions of the courts, not statutes, as for example in the case of construction, or capacity and animus testandi (intention to make a will). You need to show familiarity with, and understanding of, the leading decisions. Discussion of cases is essential in any satisfactory treatment of examination questions.

Furthermore, whatever the source of the law, you need to adopt a critical approach to the subject. It is not just a matter of learning the rules and how to apply them, but of viewing them from a critical perspective. Are they logical? Are they practical? Are they fair? Should they be reformed? Examination questions often focus on such issues, so you should develop a view on the material that you are studying. Get into the habit of asking, when you have finished studying a topic, ‘Is that how it would be in my legal system?’ This need for critical awareness applies to every topic but especially to family provision (Chapter 6), where the fundamental issue is addressed: to what extent should persons be free to dispose of property on death as they please? A compulsory question† on this topic is set in the exam paper.

Since Succession is a property subject, it is not surprising that it is full of quite detailed technical rules which you need to learn and apply with precision, whether they are statutory, case law, or a mixture of the two. Unlike most property subjects, however, Succession is a subject of fundamental human interest and some drama. It deals, after all, with the consequences of death. Many people will have strong feelings as to how their property should be distributed on their death, or as to their possible entitlement of their family and friends to the property. The making of a will, or the failure to do so, can greatly influence the course of human affairs. Inheritance can make or break families, can bestow great benefits on some but lead to disappointment, bitterness or even hatred in other cases. It has unfortunately provided a motivating factor in many a murder and has even contributed to the outbreak of war. It is serious stuff, and the rules need to be studied in this context.

Succession is also a compact subject. Its range is relatively clear – distribution of property on death – although there is some overlap with areas of family law, trusts and land law. It is also a subject that can be compartmentalised to a large extent: it consists of several discrete topics which can best be studied as such, provided that you understand that in practice a disputed inheritance may involve the application of rules from several areas of the subject.

1.1.2 Outline structure of this subject guideThis subject guide has been structured to enable you to study Succession in a logical and systematic way. So we begin with the law of intestacy because most people die intestate, and because the intestacy rules represent the ‘default’ provision, i.e. what happens when the deceased does not make a valid will. We then study how a will is made and how it is unmade (revoked). The remainder of the subject guide is mostly concerned with the consequences of a valid will: how it is to be construed, how it can be challenged on the grounds of unreasonable provision, and what the rules of entitlement are. We end with ‘Alternative succession’, i.e. distribution of property on death by methods other than the standard will.

† There will continue to be a compulsory question on family provision for the next few years.


The subject guide consists of seven chapters apart from this Introduction:

u Chapter 2: ‘Intestacy’ – the rules that apply when the deceased dies without leaving a valid will

u Chapter 3: ‘Making a will’ – the rules concerning capacity and animus testandi, and the formalities required for a valid will

u Chapter 4: ‘Revocation’ – the different methods of revoking a will; alteration of wills; and revival and republication of wills

u Chapter 5: ‘Construction’ – the rules which determine how the courts interpret wills

u Chapter 6: ‘Family provision’ – the statutory scheme under which certain persons can challenge a will (or intestacy) on the ground that it fails to make reasonable provision for the applicant

u Chapter 7: ‘Entitlement’ – the rules which determine when testamentary gifts or intestacy entitlement may fail

u Chapter 8: ‘Alternative succession’ – miscellaneous modes of inheriting property other than under the standard will.

1.2 A suggested approach to study

You should begin your studies with this subject guide. Start at the beginning and work your way through the guide sequentially, reading the recommended textbook pages and doing the Activities as directed. It may be tempting to start with, say, Family provision (Chapter 6), since there is compulsory question on this topic, but that is a potentially confusing way to begin. The module builds sequentially so that later chapters can only be properly understood if you first master the earlier ones.

1.2.1 Essential reading

Primary textbooks ¢ Borkowski, A. Textbook on Succession. (Oxford: Oxford University Press, 2002)

second edition [ISBN 184174221X].

¢ Kerridge, R. (ed.) Parry and Clark: the Law of Succession. (London: Sweet & Maxwell, 2002) eleventh edition [ISBN 0421741104 (pbk)].

Subsequently, we will refer to these texts in a short form, for example:

Borkowski, Chapter 2: ‘Intestacy’.

Supplementary text ¢ Miller, J.G. The Machinery of Succession. (Aldershot: Dartmouth, 1996) second

edition [ISBN 1855214423].

Miller writes at postgraduate level, but is very helpful on most topics in this module.

Casebook ¢ Wright, C.E. Succession: Cases and Materials. (London: Butterworths Law, 1986)

[ISBN 040656311X].

Although it dates from 1986, this is still a very useful casebook given that developments in the subject are none too frequent.


Statute bookYou should also obtain a statute book. Under the regulations you are allowed to take one authorised statute book into the examination room.

Information about the statute books and other materials that you are permitted to use in the examination is printed in the current Regulations, which you should refer to.

Please note that you are allowed to underline or highlight text in these documents – but you are not allowed to write notes etc. on them. See also the Guide to Examination Technique for further guidance on these matters.

The Regulations for the LLB state:

5.3 Students may underline and/or highlight passages with a coloured pen in the materials, but all other forms of personal annotation on statues and other materials permitted to be taken into the examination room are strictly forbidden.

Statute books are regularly updated: try to obtain the latest copy.

Reports and journalsYou should try to keep up to date with the subject by occasionally consulting the following in particular:

¢ Current law

¢ Wills and Trusts Law Reports (WTLR)

¢ The Conveyancer (the journal where articles and case notes on the subject are most likely to be found).

1.2.2 Structure of this subject guide Each chapter follows the same basic structure:

u Title

u Contents: list of the main section headings

u Introduction: tells you what the chapter covers

u Learning outcomes: list of things you should be able to do on completing the chapter

u Essential reading

u Main text

u Activities: exercises designed to help you learn and understand important issues

u Summary: brief summary of the main points of the section

u Self-assessment questions: factual questions designed to test your memory of the chapter or section that you have worked through

u Further reading: occasional suggested reading additional to Essential reading

u Reminder of learning outcomes

u Feedback: comments on how you might have approached the Activities

u Sample examination questions: these are mostly taken from recent examination papers for the London External LLB

u Feedback to exam questions: hints and suggestions as to how to approach answering the questions


1.2.3 How to proceedThis subject guide takes you through the Succession module in a logical and systematic way, each chapter covering a particular topic or group of topics. It is based on Textbook on Succession (second edition) by Andrew Borkowski, who is the author of this subject guide.

Working through a chapter of the subject guide

Begin each chapter by noting the contents and reading the Introduction.

Next, do the reading mentioned in Essential reading. It is vital that you do this: ‘essential’ means that you must read the material. Most of your expertise in the subject will come from the recommended textbooks. This subject guide should not be used instead of the textbooks – it is at best a summary of the subject and an aid to mastering it. It is also important that you do the Essential reading at the point when you are referred to it.

You need to take notes from the Essential reading so as to provide yourself with a skeletal outline of the subject. You will not have the time or energy to produce very extensive notes – nor is it necessary to do so. But your notes should be sufficiently detailed to give you a basic understanding of the subject. Achieving the right balance in note-taking is difficult. To help you do this, it is a very good idea to read through new material quickly – without taking any notes – to gain a broad outline of the topic. Then read through it again, this time taking notes. The ‘double-read’ will result in your having a better balanced set of notes than if you do not follow this method.

On completing your Essential reading and note-taking, you should then work your way through the text of the relevant chapter in the subject guide. Make sure you note any points in the subject guide that you omitted in your notes from the essential reading.

Work at the Activities that are found at key points in the text. These Activities are exercises which enable you to learn and understand important points and issues. They do this by getting you to think about a question and devise an answer. Get into the habit of writing a few sentences in response to each Activity. That will test your understanding of the subject and provide you with an opportunity to practise writing ‘legal’ English. In most cases, Feedback is provided at the end of each chapter, but it is essential that you do the Activities before you look at the Feedback. That will give you an indication as to how well you are learning and understanding the subject as you proceed, and whether you need to go back over any of the material.

Self-assessment questions, on the other hand, are factual questions designed to test your memory of the chapter that you have worked through. No feedback is given because you can always find the answers to these questions in the text of the subject guide.

All the chapters contain Sample examination questions at the end, usually taken from past University of London External LLB examination papers. You should try to answer these questions as if you were sitting the exam. Allow yourself about 45 minutes per question and aim to cover about 3–4 sides of A4 paper (assuming average handwriting). This will give you invaluable practice in presenting your knowledge and understanding of the topics in a thorough and integrated way. Also, it will help you to develop the skill of expressing yourself clearly and logically on paper. You need practice writing fluently, quickly and lucidly throughout the academic year to prepare yourself for the exam. When you have finished, read the Advice on answering questions that follows and compare your answer.

When you have completed your reading of a chapter of the subject guide, check whether any Useful further reading is recommended and, if it is, try to follow up the suggestions. This reading will give you further analysis, critique and insights into the subject and will thus be important in fully preparing you for the examination.


1.3 The examination

1.3.1 The examination paperImportant: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this we strongly advise you to check the rubric/instructions on the paper you actually sit.

The paper normally contains eight questions, four of which you have to answer in three hours. There is a compulsory question on the Inheritance (Provision for Family and Dependants) Act 1975 because of the overriding theoretical and practical importance of the topic. However, you may pass the paper even if you fail to obtain a pass mark in the compulsory question. The paper contains a mix of essay-type questions and problems. The examiners strive to ensure a balanced spread of questions between the various topics (contrary to rumour, examiners are human and don’t try to catch students out!). The examination attempts to test your knowledge, understanding and critical awareness of the basic principles of the subject. The paper is not divided into sections: you must answer the compulsory question, but then have a choice of any three of the other questions. Where a question consists of two or more parts, make sure that you answer each part, unless instructed otherwise.

1.3.2 Taking the examination When taking the paper you should bear in mind the following.

Do not attempt to learn the whole syllabus in detail

Since the examination paper asks you to answer four questions out of eight, it is an inefficient expenditure of effort on your part to try to learn the whole syllabus in detail. Of course, Succession should be studied as a subject as a whole – and the various topics in it do interrelate to a considerable extent – but that does not mean you have to learn the whole syllabus for the examination. Questions sometimes focus on this interrelation, but are set predominantly on individual, discrete topics. However, remember that there is a compulsory question on family provision.

Try to memorise material where appropriate

When revising you must make the effort to learn the material (i.e. memorise it), as opposed to simply reading it. No amount of reading will enable you to recall the material as effectively as the act of memorising. A very useful revision aid is to write brief notes (without the use of books) by way of summarising the material that you are memorising. Then check whether you have missed anything of importance. These notes will then serve as an invaluable condensation of the topic when you next revise it. In that way, the whole of the syllabus that you have studied may be reduced to, say, 20 sides of A4, which can then form the basis for your final revision just prior to the examination.

Since you will have access to statutory materials in the examination, there is no need to memorise statutory sections. But it is useful to memorise the main points of the legislation so that you avoid wasting time in the examination fumbling through the materials.


Avoiding panic

In common with all examination candidates, you will be feeling nervous prior to and at the beginning of the examination. Once you start writing your first answer, you will normally find that your tension diminishes. If you do get very tense at the beginning of an examination, it may be a good idea to start writing as soon as you can. Succession papers are invariably quite long because they contain a number of problem questions. It may take you 10 minutes or so to read the whole paper, during which many candidate often remains tense. You may find it helpful, therefore, to attempt one of the essays in the paper first, before you have completed reading the whole paper. You may find that in this way you will relax much sooner than if you read the whole paper first, without writing anything for 10 minutes (which can be panic-inducing for some candidates). The act of writing early on in the examination can be psychologically beneficial, inducing in you a feeling that you have achieved something. Then, when you have completed your first answer, read the rest of the paper carefully to decide which other three questions to attempt. You will probably find that you are feeling much more relaxed than you were at the beginning of the examination, and this will help you to read the paper through more effectively.

Divide your time equally between questions

One of the most common reasons for poor performance is candidates’ failure to divide their time equally between questions. Each question (including the compulsory question) carries the same number of marks and thus deserves equal treatment to other questions.

The same advice applies to questions with two or more parts. You must assume that each part is of equal importance. However, where there is a longish problem about which you are asked to give advice, and the problem ends with a supplementary question, such as ‘Would it make any difference if...?’, you can normally assume that the supplementary question is of less importance.

Demonstrate understanding of the case law

The examiners are particularly interested in seeing discussion of the major relevant cases. And it is discussion that you should attempt to provide whenever appropriate: the examiners will be less impressed by answers that string together a series of propositions supported by just a case name in brackets. You should aim to discuss in some detail at least two or three major cases in every question you answer.

Do not waste time on copying out statutes

Although legislation will necessarily need to be mentioned, merely writing out statutory provisions in examination answers attracts no credit, given that you have access to statutory materials in the examination. It is understanding the legislation and its interpretation that you need to demonstrate, not your ability to copy statutory sections from materials available in the examination. Examiners have noticed the latter tendency in recent years, particularly in relation to questions on the Inheritance Act 1975.

Cover the ground

Many examination questions could be answered in just a few sentences, but any such answer is very likely to be inadequate. This is because you need to demonstrate knowledge and understanding of the law with sufficient reference to and discussion of the rules and the case law. Discussion of cases should form the bulk of most of your answers (see above). Aim to cover three or four sides of A4 (assuming average-sized handwriting) as a rough guide. The most common reason why answers receive poor marks is that they are too ‘thin’, i.e. they contain insufficient reference to and discussion of the case law.


Problem questions: ISA

A useful technique for answering problem questions in a systematic manner is to follow ISA:

I = Identify

S = State

A = Apply.

You follow ISA in that order. Begin by identifying which area of law and which issues are involved in the problem. For example, you might write ‘This problem is concerned with the formalities for making wills, especially the issues of testator’s signature, qualifications of witnesses and the line of sight rule.’ You then state the law and apply it (obviously in that order) to each issue raised in the problem. Usually it is best to deal with the issues in the order in which they arise in the facts of the problem. You know by now that the ‘state’ part of the exercise will take the most time and space because of the need to deal properly with the authorities. Try to reach a conclusion on each issue, but if the arguments are evenly balanced in your view, say so and do not pretend that they favour one side or another.

Writing tips

Ensure that there are plenty of paragraphs in your answer and try to keep the paragraphs fairly short. It is also a good idea to divide up your answer with sub-titles for each issue, just as many judges do these days in their judgments. This will help to clarify the presentation of your answer, as will underlining case names when you refer to cases (but avoid highlighting them with coloured markers).

Some exam candidates prefer to write on every other line rather than on every line. This is to be encouraged. It is particularly helpful if your handwriting is smaller or bigger than the average. More important, it enables you to make amendments and insertions more easily and neatly, and thus aids the clearer presentation of your answers. If you do write on every other line, you should aim to cover seven to eight sides of A4 (as a rough guide to the desired length of your answer).

Reminder of learning outcomesBy this stage, you should be able to:

u understand what the various elements of this subject guide are designed to do

u approach the study of Succession in a systematic way

u appreciate the technique for taking an examination in Succession successfully

u begin your study of Succession with confidence.

Enjoy studying Succession and good luck in the examination!

Andrew Borkowski, April 2004


Notes

Contents

Introduction 12

2 1 The evolution of the intestacy rules 13

2 2 Total intestacy 14

2 3 Partial intestacy 17

2 4 Critique and reform 18

2 Intestacy


Introduction

We begin our study of Succession with the law of intestacy,† because of its overwhelming practical importance. It is the law of intestacy which applies in the great majority of deceased estates in English law. That is because some 65 per cent of deceased persons do not make or leave a valid will. The law is almost entirely statute-based. Parliament has decided how a deceased’s estate should be distributed in the absence of a will: in effect, Parliament makes a will on behalf of the deceased. The intestacy rules thus represent the default position, i.e. what will happen where there is no valid will or, in the case of partial intestacy, where there is a will but it does not fully dispose of the testator’s property.

The intestacy rules are relatively straightforward. You should be able to absorb and understand them without too much difficulty, although there are a few complications. The content and application of the rules is a matter of some controversy, so it is particularly important in this topic to take a critical approach to the law.

Learning outcomesBy the end of this chapter and the relevant reading, you should be able to:

u describe the evolution of the rules of intestacy

u state the rules on total intestacy

u state the rules on partial intestacy

u assess the merits and failings of the current law of intestacy.

† Intestacy: the situation in which a person dies without having made a valid will. The person is referred to as ‘the intestate’.

Succession 2 Intestacy page 13

2.1 The evolution of the intestacy rules

Essential reading ¢ Borkowski, Chapter 1: ‘Intestacy’, pp. 4–6.

Read these pages now.

The current law of intestacy is enacted in the Administration of Estates Act 1925 (henceforth referred to as AEA 1925) as amended.

Before 1926

Before 1926 intestate succession to realty† was governed by the rules of inheritance under which realty passed to the heir-at-law. Under these rules the heir-at-law was the eldest son. If there were no surviving sons, or their issue, realty devolved equally on the daughters of the intestate. Next entitled were the brothers and sisters of the intestate, or their issue, although after the Inheritance Act 1833 the intestate’s parents were given priority over collaterals.† If there were no next-of-kin, the realty passed to the intestate’s lord or the Crown. The intestate’s widow was strictly not entitled, but under the customary rules of dower the widow came to be entitled to one-third of her husband’s realty on his death. A widower took a life interest in the whole of his wife’s realty (an interest known as curtesy). Both dower and curtesy eventually faded in importance as methods were found to defeat these customary rights.

As regards personalty,† the Statutes of Distribution 1670–1685 consolidated what broadly had been the position for centuries (but with considerable local variation). Under the statutory scheme, the widow took one-third of the personalty if there were issue, but a half if there were none. A widower was entitled to all his wife’s personalty. Issue took all the personalty if there was no surviving spouse. Other next-of-kin could take if there were no issue, and the Crown was entitled if there were no surviving relatives within the prescribed categories.

AEA 1925

The AEA 1925 repealed the previous rules, both as regards succession to realty and personalty, and gave primacy to the surviving spouse, ending the difference between widows and widowers as to entitlement. In consequence, in most intestacies after 1925, the surviving spouse took the whole estate, the spouse being entitled to a statutory legacy of £1,000, the personal chattels† of the intestate and a life interest in half the residue if there were issue.

Intestates’ Estates Act 1952

Significant changes were later made by the Intestates’ Estates Act 1952: the surviving spouse was given the right to appropriate the matrimonial home and the statutory legacy was increased to £5,000. Also, the Inheritance (Family Provision) Act 1938 was made applicable to intestacy by the 1952 Act, thus introducing flexibility into the application of the rules by allowing certain family members of the intestate to claim provision out of the estate by way of maintenance. More recently, the Law Reform (Succession) Act 1995 abolished the hotchpot rule (see 2.2.3), specifying that a spouse had to survive the intestate by 28 days in order to be entitled, and that cohabitants could apply for reasonable provision out of the estate.

Activity 2.1How did the AEA 1925 improve the position of widows on intestacy?

Feedback: see end of guide.

† Realty: ‘real property’, meaning land and buildings plus intangible (‘incorporeal’) rights in land and property that are capable of being passed on to an heir. Incorporeal rights include such things as easements.

† Collaterals: those related by descent from one (but not two) common ancestors, for example the children of first and second marriages. See definition of ‘of the whole blood’ below.

† Personalty: all personal property that is not real property.

† Chattels: broadly another term for ‘personal property’. It is defined in AEA 1925 and in section 2.2.1 below.


SummaryBefore 1925 realty devolved to the eldest son, while personalty passed according to the rules enacted by the Statutes of Distribution. The AEA 1925 repealed the previous rules and gave the surviving spouse the dominant position. The spouses’ rights were further improved by the Intestates’ Estates Act 1952 which allowed the spouse to appropriate the matrimonial home.

Self-assessment questions1. To whom did realty pass on intestacy before 1925 if there were no surviving

sons?

2. What is a statutory legacy?


u describe the evolution of the rules of intestacy.

2.2 Total intestacy


¢ Kerridge, Chapter 2: ‘Intestacy’, pp. 7–21.

Total intestacy occurs when the deceased dies without leaving a valid will or, very exceptionally, when the deceased leaves a will which contains no disposition of property: Re Skeats [1936] Ch 683. The deceased’s personal representatives – usually the surviving spouse and/or close relations – hold the estate on trust with power to sell it: s.33 AEA 1925. The personal representatives must first pay all the funeral, testamentary and administration expenses, debts and other liabilities of the intestate. The residuary estate is then distributed according to the order of entitlement specified by s.46 AEA 1925.

2.2.1 Where there is a surviving spouse

Who is a spouse?

Whether a person is a spouse is determined by general principles. Thus a party to a voidable marriage that has not been annulled qualifies as a spouse, but not a party to a void marriage. A party to a polygamous marriage recognised as valid by English law would appear to qualify. Where a decree of judicial separation was in force when the deceased died, the surviving spouse cannot take: s.18(2) Matrimonial Causes Act 1973.

In order to take on intestacy, a spouse must have survived the deceased spouse by 28 days: s.46(2A) AEA 1925, an amendment enacted by s.1 Law Reform (Succession) Act 1995.

The distribution of the residuary estate depends on whether the deceased was also survived by issue, i.e. children and remoter descendants.

Deceased survived by spouse and issue

The spouse takes:

u a statutory legacy of £125,000, with interest at 6 per cent per annum payable from date of the deceased’s death until the legacy is paid

u the intestate’s personal chattels absolutely

u a life interest in half of the residue.


Personal chattels are defined in s.55 AEA 1925 which lists a wide range of chattels including ‘articles of household or personal use or ornament’ but excludes money, securities for money (e.g. shares) and chattels used at the intestate’s death for business purposes. The leading decisions are:

u Re Crispin’s WT [1974] 3 All ER 772 – a collection of clocks was held to be ‘furniture’ and a collection of watches was held to be ‘articles of personal use’.

u Re Reynold’s WT [1965] 3 All ER 686 – stamp albums were held to be ‘articles of personal use’ since the deceased collected stamps as a hobby.

u Re Chaplin [1950] Ch 507 – large yacht used for private pleasure cruises was held to be an ‘article of personal use’.

u Re Hutchinson [1955] Ch 255 – racehorses were held to be ‘horses’, and thus personal chattels (since horses are one of the categories specifically listed in s.55).

u Re MacCulloch’s Estate [1981]44 NSR (2d) 666 – a Canadian decision which held that the test of whether chattels were used for business purposes or otherwise at the intestate’s death was to enquire what was the dominant use at death.

Note that the spouse’s right to a life interest in half the residue may be capitalised, i.e. the spouse may prefer to take a capital sum in place of income.

The issue will take the other half of the residuary estate plus the ‘remainder’ in the spouse’s life interest (if it has not been capitalised). Issue comprise the lineal descendants – male or female – of the intestate including illegitimate, legitimated and adopted issue, but not stepchildren.

The issue will take on ‘statutory trusts’ as defined in s.47(1) AEA 1925. This means that the children of the intestate take in equal shares but that to take a vested interest a child must attain 18 years of age or marry under that age. If a child who attained a vested† interest predeceases the intestate but leaves issue, the share that would have passed to the child passes to his issue. This is known as the per stirpes rule (‘through the branches of the family’) and is aimed at preserving equality of inheritance between branches of the intestate’s family. A child who has forfeited his interest by murdering the intestate is not regarded as having ‘predeceased’ the intestate for the purposes of s.47(i), hence the murderer’s child cannot take per stirpes: Re DWS [2001] Ch 568.

Deceased survived by spouse but not by issue

If the intestate is survived by a spouse and parent or brother or sister of the whole blood† (or their issue), the spouse takes:

u a statutory legacy of £200,000 (with interest)

u the personal chattels absolutely

u half of the residue absolutely.

The other half of the residue goes first to the parents but, if there are none surviving, then to the brothers and sisters. If there are no surviving parents and brothers and sisters, the whole estate passes to the surviving spouse. Note that issue of brothers and sisters, i.e. nephews and nieces of the intestate, take per stirpes the share that their parent would have taken if that parent had not predeceased the intestate.

The matrimonial home

If the home was held by the spouses on joint tenancy – the usual scenario – it will pass to the survivor by ius accrescendi (survivorship). If, however, the deceased owned the home solely, it will form part of the residuary estate. Under the Intestates’ Estates Act 1952, the surviving spouse has the right to require the personal representatives† to appropriate the home for that spouse in or towards satisfaction of any absolute interest of that spouse in the intestate estate. The surviving spouse must have been resident in the home when the intestate died.

† Vested interest: an interest which the beneficiary has the right to take possession of.

† ‘Of the whole blood’: people who descend from two common ancestors, such as the children and grandchildren of a particular couple, are said to be of the whole blood. The children of the same father but two different mothers (or vice versa) are referred to as ‘of the half blood’. The term for all such ‘blood relationships’ is consanguinity.

† ‘Personal representatives’ in this context are the administrators of the estate – usually the next of kin.


If the home is worth more than the spouse’s absolute interests in the intestate estate, the spouse can nevertheless appropriate the home by making an equalisation payment: Re Phelps [1980] Ch 275. The value of the home is assessed as at the time of appropriation and not at the intestate’s death: Robinson v Collins [1975] 1 All ER 321.

Activities 2.2–2.42.2 What problems may arise in deciding what are personal chattels?

2.3 A dies intestate, survived by a brother B and by a sister C. Another brother, D, predeceased A leaving a child E who survived A. There are no other surviving relatives. How will A’s estate be distributed?

2.4 Summarise the surviving spouse’s rights of appropriation of the matrimonial home.


2.2.2 Where there is no surviving spouseIf the intestate is not survived by a spouse, the entire estate passes to the issue of the intestate on statutory trusts (see above). If there are no issue, the estate passes in the following order under s.46 AEA 1925:

u parents of the intestate

u brothers and sisters of the whole blood (or their issue)

u brothers and sisters of the half blood (or their issue)

u grandparents

u uncles and aunts of the whole blood (or their issue)

u uncles and aunts of the half blood (or their issue).

If there are no surviving relatives in the above categories, the estate passes to the Crown as bona vacantia.† The Treasury Solicitor has a discretion to make payments ‘for dependants of the intestate and other persons for whom the intestate might reasonably have been expected to make provision’: s.46 AEA 1925. Note that the above order of entitlement is an order of priority. Thus a person within a particular class of beneficiary can only take if there is no one in any prior class able to take.

2.2.3 HotchpotAlthough hotchpot was abolished by the Law Reform (Succession) Act 1995 as regards persons dying intestate from 1 January 1996, cases may still arise where the pre-1996 rules will be relevant. Those rules, contained in s.47 AEA 1925, applied where property was shared on statutory trusts by issue. The basic rule was that if money or property had been paid or settled by the intestate inter vivos† on a child by way of advancement or on the marriage of the child, then the child had to account for that benefit. Benefits paid or settled on grandchildren or remoter issue did not have to be brought into account. However, grandchildren or remoter issue who took on intestacy per stirpes the share of a child of the intestate that had predeceased the intestate, had to account for benefits conferred inter vivos on that child. Advancements were defined in Taylor v Taylor [1875] 20 LR Ch 155 as ‘something given by the parent to establish the child in life’ or to make ‘provision’ for him or her.

The hotchpot rule applied subject to a contrary intention. In Hardy v Shaw [1975] 2 All ER 1052 it was held that the test was whether, looking at all the circumstances, it should be inferred that the intestate’s intention was that the benefit should not be brought into hotchpot.

† Bona vacantia: (Latin) = ‘vacant goods’, i.e. property not disposed of in a will, and, in the case of intestacy, to which no relative is entitled.

† Inter vivos (Latin) = (especially of a gift as opposed to a legacy) between living people.


Activities 2.5–2.62.5 Who is entitled to bona vacantia?

2.6 Read Taylor v Taylor and explain why certain benefits were considered to be advancements while others were not.


SummaryOn a total intestacy the residuary estate is distributed according to the order of entitlement specified in s.46 AEA 1925. The surviving spouse has the dominant position and is able to appropriate the matrimonial home. If there is no surviving spouse, the issue of the intestate take the whole estate equally on statutory trusts. Other next-of-kin can only take if there are no issue. If there are no surviving relatives, the estate passes to the Crown.

Self-assessment questions1. What is meant by the ‘residuary estate’ of the intestate?

2. How long must a spouse have survived the deceased in order to take on his/her intestacy?

3. If an intestate is survived by a spouse and issue, what are the issue entitled to take?

4. Define the term ‘statutory trusts’ as used in s.47 AEA 1925.

5. In which circumstances can the cousins of an intestate take on intestacy?


u state the rules on total intestacy.

2.3 Partial intestacy



Partial intestacy occurs when there is a valid will but it only disposes of part of the testator’s estate. The intestacy rules then apply to the property that has not been disposed of, subject to the provisions in the will: s.49(1) AEA 1925. However, the provisions of the will are irrelevant if they have become ineffective: see Re Thornber [1937] Ch 29 and Re Sullivan [1930] 1 Ch 84.

If the testator is survived by a spouse to whom a life interest was left in the will, but the remainder after the life interest is undisposed, the question arises whether the spouse can claim entitlement on intestacy in that undisposed remainder. In Re Bowen-Buscarlet’s WT [1971] 3 All ER 636 it was held that a widow’s interests under the will and under the intestacy merged so that she was entitled to immediate payment of the statutory legacy. The court declined to follow Re McKee [1931] 2 Ch 145 where it had been assumed that the statutory legacy could only be paid after the surviving spouse’s death.


Before 1996 hotchpot applied to partial intestacy. Thus issue taking on partial intestacy had to account for advancements made by testators to their children. Additionally, s.49(1)(a) provided that issue had to account for benefits acquired by any issue under the will. This badly drafted provision caused a great deal of confusion as to its interpretation and application: see in particular Re Morton [1956] Ch 644. That case followed Re Young [1951] Ch 185 in applying a stirpital† interpretation of s.49(1)(a), i.e. that issue had to account for everything acquired by all issue in that particular branch of the deceased’s family. These cases were reluctantly followed in Re Grover’s WT [1971] Ch 168.

Unlike the case with total intestacy, hotchpot applied to surviving spouses taking on partial intestacy: they had to account for any beneficial interests received under the will as against their entitlement to the statutory legacy.

Hotchpot was abolished by the Law Reform (Succession) Act 1995 but it is still possible, though increasingly unlikely, that cases will materialise in the future where the deceased died before 1 January 1996 and hotchpot therefore has to be applied.

Activities 2.7–2.82.7 Read Re Thornber and explain why the direction in the will that surplus income

should be accumulated was held to be inoperative.

2.8 How did the operation of the hotchpot rule differ on partial intestacy from total intestacy?


SummaryOn a partial intestacy the property undisposed of is distributed according to the rules applicable on total intestacy, subject to the provisions of the will. Before their abolition, the hotchpot rule applied to benefits received under the will by the surviving spouse and issue, as well as to advancements received by children.

Self-assessment questions1. What did Re Bowen-Buscarlet’s WT decide?

2. What was meant, in the context of s.49(1)(a) AEA 1925, by the term ‘stirpital’ interpretation?

Reminder of learning outcomesBy this stage, you should be able to :

u state the rules on partial intestacy.

2.4 Critique and reform



The Law Commission reviewed the law of intestacy in the late 1980s in Distribution on Intestacy (Law Com. No. 187, 1989). It recommended some fundamental changes in the law, most of which were enacted in the Law Reform (Succession) Act 1995:

u spouses must survive the intestate by 14 days (but Parliament decided on 28 days)

u hotchpot rule abolished

u cohabitants can claim reasonable financial provision.

† Stirpital: according to the res stirpes rule.


However, the Commission’s central recommendation, that if the intestate is survived by a spouse, the whole residuary estate should pass to that spouse, was not enacted.

The Law Commission was guided by two principal considerations:

1. that the intestacy rules should be certain, clear and simple

2. that the surviving spouse should receive ‘adequate provision’.

Also, the Commission emphasised that the intestacy rules should primarily reflect what the intestate would have intended, i.e. his presumed wishes, although other considerations – such as the needs or deserts of the survivors – were also relevant.

The central recommendation that the surviving spouse should take the whole estate had much to commend it. It would have greatly simplified the law and would have reflected what tends to happen in practice, which is that the surviving spouse takes the entire estate. But the proposal was fundamentally flawed because it excluded children from benefiting at all where the intestate was survived by a spouse. This could be seen as particularly unfortunate where the intestate was survived by a second or third wife, the last marriage being perhaps of short duration. Here the deceased’s children would be excluded in favour of their latest stepmother, a situation which had the clear potential for frustration and bitterness. With the high rate of divorce, often followed by second or third marriages, the probability of a great deal of hurt and sense of injustice on the part of children was obvious.

To meet these considerations in the future, it might be preferable to adopt a fractional or percentage division of the estate. For example, where the intestate was survived by a spouse and two children, the spouse would take, say, two-thirds of the estate, the rest being shared between the children. In any case, any sensible intestacy reform should take into account the position concerning the matrimonial home, usually the main asset of the married couple: should it not make a difference whether the home was owned solely by the deceased, or held on joint tenancy by the couple?

Activities 2.9–2.102.9 Summarise the Law Commission’s recommendations for intestacy reform in

Law Com. No. 187, 1989

2.10 What should the purpose of the intestacy rules be?


SummaryReforming the law of intestacy necessarily involves consideration of the purpose of the rules. The Law Commission’s view was that the law should reflect the presumed wishes of the deceased. A number of their recommendations were enacted, but their main proposal – that the whole estate should pass to the surviving spouse – was rejected, presumably on the ground that it was potentially unfair to children. A fractional division of the estate might produce a more satisfactory outcome. Any reform must take into account the issue of the ownership of the matrimonial home.

Useful further reading ¢ ‘Distribution on Intestacy’ (Law Com. No. 187, 1989).

¢ Cretney, S. (1995) ‘Reform of intestacy: the best we can do?’ 111 LQR 77.

¢ Kerridge, R. (1990) ‘Distribution on intestacy: the Law Commission Report (1989)’ 54 Conv 358.

Self-assessment questions1. In what circumstances would a rule that the surviving spouse takes the whole

estate be particularly unfair to the intestate’s children?

2. What is meant by a ‘fractional’ division of the deceased’s estate?



u assess the merits and failings of the current law of intestacy.

Sample examination questionsQuestion 1 To what extent do the intestacy rules make adequate provision for the children of the deceased?

Question 2 (a) What rights does a surviving spouse have on intestacy in the matrimonial home if it was solely owned by the deceased spouse?

(b) Frank has recently died intestate. His estate includes the following: his collection of early editions of the novels of Thomas Hardy, which Frank regarded as an investment to be sold one day (though he had not sold them at the time of his death); a luxury yacht which Sonia, his wife, had bought for him as a birthday present three years ago, and which in the year before his death he had hired out several times to his friends; and two racehorses which had been regularly winning prize money in recent months (they were kept in stables belonging to Martin, their trainer).

To which of these items of property, if any, is Sonia entitled?

Advice on answering the questionsQuestion 1 First, you need to state the rules, remembering to distinguish between total and partial intestacy. Where there is no surviving spouse, children obviously do well under the rules as they take the whole estate. But where there is a surviving spouse their entitlement is scarcely adequate, especially as in practice the spouse will often take the whole estate since it will not be large enough to leave anything for children. This will be particularly the case if the matrimonial home had been jointly owned, since the spouse will then take the home by survivorship in addition to her entitlement under the intestacy rules.

A good answer would also discuss what ‘adequate provision’ means in this context and raise the question of the age of the children as a potentially important factor in how fair the current rules are.

Question 2 (a) It would be best to start by briefly summarising the rights of the surviving spouse on intestacy and then to deal with the specific issue of appropriation. Re Phelps and Robinson v Collins need some mention on the question of equalisation payments and the time at which the home is to be valued. Also, reference is needed to the issue of residence.

(b) Since the problem is clearly concerned with the definition of personal chattels, it would not be appropriate to spend much time – if any – in stating what Sonia’s full entitlement is on intestacy. As to the chattels, the Hardy collection would seem to qualify as ‘books’ within s.55 AEA 1925. The yacht issue requires some discussion of Re MacCulloch’s Estate and Re Chaplin, while the matter of the racehorses demands consideration of Re Hutchinson (but were the facts of that case similar to that of this problem?).

Contents

Introduction 22

3 1 Nature and characteristics of wills 23

3 2 Capacity to make a will 24

3 3 Animus testandi: knowledge and approval 26

3 4 Formalities 29

3 5 Incorporation 33

3 Making a will


Introduction

In English law the will is the chief instrument by which people dispose of their property on their death (other methods of disposal are dealt with in Chapter 8). To make a valid will testators must have capacity and animus testandi – the intention to dispose of their property by will – and must satisfy the formalities required by statute. This topic is obviously of fundamental importance: other issues involving wills – such as construction or revocation – are also important but will not arise unless there is a valid will in the first place.

The law on making a will is a classic mix of statute and case law. The rules on capacity and animus testandi are largely judge-made but formalities are governed by s.9 of the Wills Act 1837. This section has been much interpreted in the cases: the courts have made some very narrow distinctions, which you will find interesting to study – if occasionally hard to justify. You will also need to focus on the issue of reform of the formalities and, indeed, what purpose they serve.


u explain the nature and characteristics of wills

u state the position regarding capacity to make a will

u explain the requirement that the testator must have animus testandi

u outline the formalities required for making a will

u indicate when the doctrine of incorporation operates.

Succession 3 Making a will page 23

3.1 Nature and characteristics of wills

Essential reading ¢ Borkowski, Chapter 2: ‘Wills: nature, characteristics and contents’,

pp. 38–45.

¢ Kerridge, Chapter 3: ‘The nature of wills’, pp. 31–35.


A will was defined by Jarman as ‘an instrument by which a person makes a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his life’.† Note, however, that a will normally does more than ‘just’ dispose of property: it will typically appoint executors or trustees, revoke prior wills and will often include directions about the testator’s funeral wishes. But if a will fails to dispose of property, it is inadmissible to probate: Re Berger [1989] All ER 591. Note also that it is a fundamental characteristic of a will that it is intended to operate only when the testator dies, unlike inter vivos dispositions by deed or so-called ‘living’ wills.

Wills are ambulatory

Since the will has no effect until the testator’s death, it is capable of encompassing property which he or she acquired after making the will. And until the testator’s death, a will does not confer actual benefits, only potential benefits in the estate, assuming there are any assets. Thus the potential application of a will is of a mobile, shifting character – which is what ‘ambulatory’ means.

Wills are revocable

A will may be revoked by the testator at any time prior to his death. Any declaration by him that the will is irrevocable is not binding: see Vynior’s Case [1609] 8 Co Rep 81b. Even if the testator contracts not to revoke his will, he cannot be stopped from revoking. However, if he does revoke, the breach of contract will leave him open to an action for damages for lost benefit. But it seems that no action will lie if the revocation occurs as a result of the testator’s marriage: Re Marsland [1939] Ch 820. Note also that if a testator contracts to leave a specific asset or a legacy of a fixed amount in a will, the promisor becomes a creditor of the estate: Synge v Synge [1894] 1 QB 466.

As regards jurisdiction over wills, the Supreme Court Act 1981 vests exclusive jurisdiction over non-contentious and common form probate† in the Family Division, while contentious or solemn form probate and construction are primarily dealt with by the Chancery Division. Before 1857 jurisdiction over wills was exercised mainly by the church courts. Note that prior to the Statute of Wills 1540 it was not possible to make a will of land since realty passed to the lawful heir according to the rules of inheritance. However, before the Norman Conquest (1066) it seems that wills of land could be made exceptionally if the consent of the monarch was obtained.

Activity 3.1Explain what is meant by saying that a will is ‘ambulatory’.


SummaryA will is an instrument by which a person disposes of his property to take effect on his death. Wills are ambulatory and revocable, although if the testator has contracted not to revoke his will, an action for damages may lie for breach of contract if the testator revokes. Jurisdiction over wills is shared by the Family and Chancery Divisions of the High Court.

† Jarman, T. A treatise on wills. (London: Sweet and Maxwell, 1951) eighth edition.

† The various types of probate are not part of the syllabus for Succession, but you can find out more about them in your textbooks if you wish.


Self-assessment questions1. What would you expect to find in a typical will apart from provisions disposing

of property?

2. What jurisdictional change concerning wills occurred in 1857?


u explain the nature and characteristics of wills.

3.2 Capacity to make a will

Essential reading ¢ Borkowski, Chapter 3: ‘Making a will: capacity and intention’, pp. 64–75.

¢ Kerridge, Chapter 5: ‘The making of wills’, pp. 61–65.

¢ Cases: Banks v Goodfellow [1870] LR 5 QB 549; Dew v Clark [1826] 3 Add 79; Re Bohrmann [1938] 1 All ER 271; Parker v Felgate [1883] 8 PD 171; Re Parsons [2002] WTLR 237; Chana v Chana [2001] WTLR 205.

To have capacity to make a will, i.e. to be legally competent to do so, a testator must be aged 18 or over: s.7 Wills Act 1837 (as amended). Also, the testator must have the mental competence to make a will, a requirement which raises several issues.

3.2.1 The test of mental competenceThe leading case is Banks v Goodfellow where it was said that the test of mental competence is whether the testator had ‘a sound and disposing mind and memory’ when he made the will. That required the testator to have:

‘an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.’

Note that the testator need only have a general recollection of his property, but that he must at least be aware of the persons who may have a ‘moral claim’ on his estate, even if he decides not to benefit them: see Harwood v Baker [1840] 3 Moo PC 282. Whether a testator does have the necessary capacity may depend on how complex the will is. The more complex it is, the greater the level of understanding that will be required: see In the Estate of Park [1953] 2 All ER 1411. However, as long as the testator is Banks competent, he has capacity even if his provisions are eccentric or capricious. In Boughton v Knight [1873] LR P&D 64 it was stated that:

‘the law does not say that a man is incapacitated from making a will if he proposes to make disposition of his property moved by capricious, frivolous, mean or even bad motives.’

3.2.2 DelusionsA delusion is an irrational belief which cannot be eradicated by rational argument. Not every delusion will prevent the testator from having capacity, only those that influence him in making the provisions in his will and result in his not having a sound and disposing mind and memory:

u Banks v Goodfellow: T (the Testator) was affected by various delusions, particularly that he was being pursued by ‘evil spirits’; held, capacity not affected.

u Dew v Clark: T gave daughter only a small gift out of a large estate because he thought that she was ‘Satan’s special property’; held, will invalid.

u Battan Singh v Amirchand [1948] 1 All ER 152: T excluded his nephews because he was under a delusion that they were not alive; held, will invalid.


u Smith v Tebbitt [1867] 1 P&D 398: T left only a small gift to her sister because she thought that the sister was ‘a child of the devil’ who had to be ‘cut off’; held, will invalid.

u Re Bohrmann: T excluded English charities because he thought he was being persecuted by the London County Council; held, will partially invalid. Note that the court may hold a part of the will invalid because of delusions – Re Bohrmann was the first case in which partial invalidity, rather than total, had been found.

3.2.3 Time when capacity requiredThe testator must be mentally competent when the will is executed. Thus his lack of competence before or after the will’s execution does not in itself invalidate the will: Ewing v Bennett [2001] WTLR 249. A will made in lucid interval was upheld in In the Estate of Walker [1912] 28 TLR 466 and in Chambers v Queen’s Proctor [1840] 2 Curt 415.

An important exception to the basic rule was established in Parker v Felgate: if a mentally competent testator gives instructions for his will, but is no longer competent when the will is executed, the will is valid providing the instructions were given to a solicitor, the will was prepared in accordance with those instructions, and the testator executed the will while understanding that he was executing a will for which he had given instructions. The rule was applied recently in Clancy v Clancy [2003] WTLR 1097. Note that in Battan Singh v Amirchand it was said that the rule in Parker v Felgate had to be applied with ‘the greatest caution’ where the instructions are not given to a solicitor but to a lay intermediary.

3.2.4 Old age, infirmity and drunkennessWhere there is any doubt as to the testator’s mental capacity, it is best practice that the testator should be examined by an experienced medical practitioner, who should make a record of his findings and witness the will if he is satisfied of the testator’s mental competence, especially in cases involving the old and infirm. In Kenwood v Adams (1975) The Times, 28 November, this procedure was described as a ‘golden if tactless rule’. The Law Reform Committee (Report No. 22, 1980) approved of the rule but did not recommend that it should be enacted. The ‘rule’ has been repeatedly emphasised as desirable: Re Simpson [1977] 121 SJ 224, Buckenham v Dickinson [1997] 4 CL 661 and more recently in Re Parsons where it was added that such cases should be handled by a solicitor with some experience of will-making in such circumstances.

There is no rule that a drunk person or one under the influence of drugs cannot make a will, but the propounders† of the will must show that there was the necessary mental competence at the relevant time. In Chana v Chana a will made by a very heavy drinker was upheld and it was said that for drunkenness to invalidate a will it must have prevented the testator from knowing the nature and quality of the act – making a will – on which he or she was engaged.

3.2.5 The burden of proofThe basic rule is that the propounder of a will must satisfy the court, on a balance of probabilities, that the testator was mentally competent when the will was made. However, if the will is rational on its face, a presumption arises that the testator was mentally competent to make the will. If the party opposing the will then rebuts the presumption by evidence to the contrary, the burden of proof shifts back to the propounder: Symes v Green [1859] 1 Sw&Tr 401. If, on the other hand, the will is irrational on its face, the testator will be presumed to have lacked mental competence, but the presumption is rebuttable.

Also, note that the burden of proof may be affected by the presumption of the continuance of a mental state. Where there is evidence that the testator was mentally competent prior to making his will, he will be presumed to have continued to be competent when executing it. Whereas, if he was known to have suffered mental illness prior to the will’s execution, it will be presumed that the illness continued at the time of execution. These presumptions are as usual rebuttable by appropriate evidence.

† Propounder: in a probate action, the person who claims that the will is valid.


Activities 3.2–3.43.2 Explain what is meant by the requirement that the testator should have ‘a

sound and disposing mind and memory’ when executing a will.

3.3 T makes a will in which he leaves all his property ‘to David Beckham because he was a good friend of mine when we played for Manchester United’. It transpires that T had been a lifelong supporter of Manchester United but that in the last year of his life he had started imaging that he had once played for the club and been a friend of Beckham, neither of which was true.

Advise Beckham.

3.4 Indicate what steps should be taken in making a will according to the ‘golden if tactless rule’.


SummaryIn order for a testator to have capacity to make a will, he or she must be aged at least 18 and have ‘a sound and disposing mind and memory’. Wills can be validly made by testators during a lucid interval, and if the testator was deluded when he made the will, the delusions will only invalidate the will – partially or wholly – if they influenced his dispositions. As a general rule, the testator must have capacity at the time of the will’s execution. Where there is doubt about the testator’s mental competence, it is best practice for a medical practitioner to be present when the will is made and to have satisfied himself that the testator is mentally capable of making a will. The burden of proof of demonstrating mental competence is on the propounder of the will but, if the will is rational on its face, a presumption arises that the testator was competent.

Self-assessment questions1. Why was the will upheld in Banks v Goodfellow?

2. What must be shown in order for the rule in Parker v Felgate to apply?

3. What is meant by the presumption of the continuance of a mental state?


u state the position regarding capacity to make a will.

3.3 Animus testandi: knowledge and approval

Essential reading ¢ Borkowski, Chapter 3: ‘Making a will: capacity and intention’, pp. 76–78, 81–97.

¢ Parry and Clark, Chapter 5: ‘The making of a will’, pp. 68–86.

¢ Cases: d’Eye v Avery [2001] WTLR 227; Re Knibbs [1962] 2 All ER 829; Barry v Butlin [1838] 2 Moo Pc 480; Wintle v Nye [1959] 1 All ER 552; Fuller v Strum [2002] WTLR 199; Re Bell [2002] WTLR 1105; Parfitt v Lawless (1872) 2 P&D 462; Re Good [2002] WTLR 801.

In order to make a valid will, the testator must have the intention to make it – animus testandi – when he or she executes the will. Thus both capacity and animus testandi are required: ability to make a will and the intention to do so. It was said in d’Eye v Avery that capacity was a general ability to do something, whereas knowledge and approval (which can be equated with animus testandi) required an awareness and appreciation of a specific instrument.


To demonstrate animus testandi it must be shown that the testator expressed his wishes as to what should happen to his property on his death. It was said in Re Knibbs that ‘there must be a statement of the deceased’s wishes for the disposition of his property which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request explicit or implicit to see that his wishes are acted on’. Compare Re Jones [1981] 1 All ER 1 and note that a testator can have animus testandi even though he did not intend to make a will admissible to probate under English law: Re Berger [1989] 1 All ER 591.

3.3.1 Knowledge and approvalThe testator must have known and approved of his will when he executed it, a general requirement resulting from the necessity for animus testandi. Note that lack of knowledge and approval is one of the grounds specified in the Civil Procedure Rules 1998 for alleging that a will is invalid. The other grounds are:

u that the will was not duly executed

u that the testator was not of sound mind, memory and understanding

u that the execution of the will was obtained by undue influence or fraud.

The burden of showing knowledge and approval is on the propounder of the will, but if the will was executed by a mentally competent testator, it will be presumed to have been made with the necessary knowledge and approval: Barry v Butlin. Proof that the will was read over to the testator is weighty but not conclusive evidence of knowledge and approval: Re Morris [1970] 1 All ER 1057.

3.3.2 Suspicious circumstancesIf there is evidence of suspicious circumstances surrounding the execution of a will, this rebuts the presumption of knowledge and approval and throws the burden on the propounders of the will to remove the suspicion and thereby prove knowledge and approval. The case law on suspicious circumstances is primarily concerned with the situation where a beneficiary under the will was actively involved in its preparation. It was emphasised in Barry v Butlin that whenever a party prepares a will and takes a benefit under it, that ought ‘to excite the suspicion of the court’ and make it be ‘vigilant and jealous’ in examining the evidence in support of the will: the court ought not to uphold the will ‘unless the suspicion is removed’. The leading illustration of the application of this principle is Wintle v Nye where a solicitor who prepared the testatrix’s† wills and codicils, under which he increasingly and substantially benefited, was unable to remove the suspicion. See also the more recent decisions in Re Dabbs [2001] WTLR 527, Ewing v Bennett [2001] WTLR 249 and Fuller v Strum where it was said that although the propounder of the will must dispel the court’s suspicions, that does not require demonstrating ‘the righteousness of the transaction’.

Note that in Tyrell v Painton [1894] P 151 it was said that the rule requiring the propounder to remove suspicion was not confined to cases where the will was prepared by a beneficiary, but applied to any ‘well-grounded suspicion’.

3.3.3 MistakeWhere a testator executes a will by mistake, he lacks animus testandi in relation to that will – there is no knowledge and approval: Re Meyer [1908] P 353. Similarly if parts of a will have been included by mistake without the testator’s knowledge and approval, they can be omitted from probate: Re Phelan [1971] 3 WTLR 888. But if the testator’s mistake was as to the legal effect of his provisions, he will be bound by those provisions: Collins v Elstone [1893] P 1.

Where the testator has made a mistake as to the contents of his will so that he lacks knowledge and approval of them, there are two possible remedies: omission or rectification.

† Testatrix: (from Latin) female form of ‘testator’.


Omission: the court can omit words from a will if they were not intended by the testator to be part of his will, provided that the sense of the remainder of the will is not altered as a result: Re Horrocks [1939] 1 All ER 579 and Re Morris (above).

Rectification: s.20(1) Administration of Justice Act 1982 allows the court to rectify a will if it is so expressed that it fails to carry out the testator’s intentions in consequence of (a) a clerical error, or (b) a failure to understand his instructions. For the meaning of ‘clerical error’ see Wordingham v Royal Exchange [1992] 3 All ER 204 and Re Segelman [1995] 3 All ER 676. Note that it was held in Re Williams [1985] 1 All ER 694 that ‘clerical error’ includes errors made by the testator. Any claim for rectification must be framed within s.20(1)(a) or (b). Thus speculation as to a testator’s true intentions is an insufficient basis for rectification: Re Bell [2002] WTLR 1105. Proof that the will fails to carry out the testator’s intentions must amount to ‘convincing evidence’ in order to justify rectification: Re Grattan [2001] WTLR 1305. For a recent example of clerical error, see Re Munday [2003] WTLR 1161.

3.3.4 Undue influence and fraudThe leading case Parfitt v Lawless established that no presumption of undue influence arises from proof of a close relationship between the testator and the party alleged to have exercised influence, unlike the case with inter vivos transactions. Also, it was held that in order to prove undue influence it is necessary to show that the testator was coerced – that his will was overborne. This important point was also emphasised in Hall v Hall [1868] 1 P&D 481 where it was said that ‘a testator may be led but not driven...his will must be the offspring of his own volition, and not the record of someone else’s’.

Coercion may take various forms but the test is always: ‘Was the testator’s volition overborne?’ The test is subjective, so everything will depend on the effect of the threats or pressure on that particular testator: see Wingrove v Wingrove [1886] 11 PD 81. Thus the weaker the testator, physically or mentally, the easier it will be to prove undue influence.

The burden of proof is on the person alleging undue influence. Strong evidence is required since the allegation is a serious one. If a person makes the allegation without sufficient evidence, the court may penalise them in costs: Re Cutcliffe’s Estate [1959] PC and Re Good [2002] WTLR 801. Given the current state of the authorities, it is clearly preferable in practice to allege lack of knowledge and approval arising from suspicious circumstances – as occurred in Wintle v Nye – than to allege undue influence: see In the Estate of Fuld [1968] P 675.

Fraud consists of intentionally misleading the testator, thereby affecting the making of his will or its provisions. As in the case of undue influence, the allegation of fraud is a serious one, so it should not be made without convincing evidence. It would seem that the testator must have been deliberately deceived for an allegation of fraud to succeed: compare Wilkinson v Joughin [1866] LR 2 Eq 319 and Re Posner [1953] 1 All ER 1123.

Activities 3.5–3.73.5 Read Wintle v Nye and explain why the execution of the testatatrix’s will and

codicil was considered to be suspicious.

3.6 Compare the court’s power to rectify a will with its power to omit words from a will.

3.7 Explain what is meant by saying that ‘a testator may be led but not driven’.



SummaryTo make a valid will, the testator must have not only capacity but also animus testandi. This requires knowledge and approval of the will and its contents by the testator. Knowledge and approval will be presumed if the will was executed by a mentally competent testator. However, where a beneficiary under a will was involved in its preparation, that raises a suspicion which the propounder of the will must remove. Mistakes by the testator may be rectified in certain circumstances by the court, which also has the power to omit words from a will in some cases. Where a will was made, or a gift in it, as the result of undue influence or fraud, this will invalidate the will or gift. Undue influence requires proof of coercion and cannot be presumed from the existence of any relationship between the testator and the party alleged to have exercised influence. Convincing evidence is required to make allegations of fraud and undue influence.

Self-assessment questions1. What must be proved, according to Re Knibbs, in order to show that the testator

had animus testandi?

2. What is the relevance of showing that a will was read over to a testator?

3. Which case decided that a mistake by the testatrix as to the legal effect of her provisions cannot be remedied?

Useful further reading ¢ Kerridge, R. [2000] ‘Wills made in suspicious circumstances’ CLJ 310.

¢ Kerridge, R. (2003) ‘A case of a “suspicious” will’ 119 LQR 39.


u explain the requirement that the testator must have animus testandi.

3.4 Formalities

Essential reading ¢ Borkowski, Chapter 4: ‘Making a will: formalities’, pp. 98–128.

¢ Kerridge, Chapter 4: ‘Formalities’, pp. 39–51.

¢ Cases: Re Chalcraft [1948] 1 All ER 700; Weatherhill v Pearce [1995] 2 All ER 492; Wood v Smith [1992] 3 All ER 556; Brown v Skirrow [1902] P 3; Re Groffman [1969] 2 All ER 108; Re Colling [1972] 3 All ER 729; Couser v Couser [1996] 3 All ER 256.

The formalities required to execute a valid will are contained in s.9 Wills Act 1837, as interpreted in the rich case law. Have a copy of s.9 by you all the time as you progress through this part of the subject guide since the text closely follows the way in which s.9 is structured.

3.4.1 A will must be ‘in writing’A valid will must be in writing, apart from a privileged will made by a soldier or seaman (see Chapter 8). There is no definition of ‘in writing’ in s.9 but the phrase has been construed widely to include various modes of presenting the words in visible form. Any materials may be used provided that a permanent form of visual representation results: see Hodson v Barnes (1926) 42 TLR 71 (egg-shell acceptable). Also, any language, code or symbols are acceptable provided that the writing is decipherable: Re Berger [1989] 1 All ER 591.


3.4.2 SignatureA will must be ‘signed by the testator, or by some other person in his presence and by his direction’.

The requirement in s.9(a) that a will be ‘signed’ has also been flexibly construed. In Hindmarsh v Charlton [1861] 8 HL Cas it was said that ‘there must either be the name or some mark which is intended to represent that name’. In Re Parsons [2002] WTLR 237 a thumb-print sufficed: see also In the Estate of Finn [1935] 52 TLR 153. In Re Chalcraft it was held enough for the testatrix to write half her name (before she became unconscious) because that was ‘the best she could do’: see also In the Estate of Cook [1960] 1 All ER 689.

The will is validly signed, even if the testator himself does not sign, provided that it was signed on his behalf by some other person in his ‘presence’ and by his ‘direction’. The need for ‘presence’ requires that the testator was mentally and physically present when the ‘other person’ signed. There is a lack of authority on the meaning of ‘direction’ and the capacity, if any, required of the ‘other person’ to sign.

Where the will consists of two or more sheets of paper, only one signature is required providing that at the moment of signing there was ‘a significant nexus’ between the sheets, i.e. some form of attachment or holding together: Re Little [1960] 1 All ER 387.

3.4.3 Signature must be intended ‘to give effect to the will’Section 9(b) requires that the testator must have intended ‘to give effect to the will’ by his signature. Thus the signature is valid, wherever it appears on the will, provided that it satisfies this requirement: Weatherhill v Pearce. A signature on an envelope containing a will may suffice, even though the will itself was not signed: In the Goods of Mann [1942] 2 All ER 193. But if the signature on the envelope was merely a means of identifying the contents, s.9 is not satisfied: Re Beadle [1974] 1 All ER 493.

If the testator signs his or her will before writing out the provisions, it seems that the signature falls within s.9(b) according to Wood v Smith, where it was said that ‘if the writing of the will and the appending of the signature are all one operation, it does not matter whereabouts on the document or when in the course of writing the signature is appended.’

3.4.4 Signature in presence of witnessThe signature must be ‘made or acknowledged by the testator in the presence of two or more witnesses present at the same time’: s.9(c).

‘Made in presence’

It is well established that the witnesses must be both mentally and physically present. Regarding mental presence, it was said in Brown v Skirrow that the witness should be able to say, ‘I know that this testator has signed this document’. However, it is not necessary for the witnesses to know that the testator is signing a will. Physical presence requires there to have been an unobstructed line of sight between the witnesses and the testator at the moment when the will was signed. It does not matter whether the witnesses actually saw the signing as long as they had the opportunity to see at that moment.

‘Acknowledged in presence’

Section 9 does not define ‘acknowledged’ but it is clear that no particular form of acknowledgement is required: Hudson v Parker (1844) 1 Rob Ecc 14. The testator must show by his words or conduct that he recognises the signature as his own: Weatherhill v Pearce. The witnesses need not know that the testator is acknowledging his signature to a will. They must however be mentally and physically present. Thus they must be conscious of the words or conduct that constitutes the acknowledgement, and there must be an unobstructed line of sight between them and the signature at the moment of acknowledgment: Re Groffman.


Present at the same time: s.9(c) requires that at least two witnesses must have been present at the same time when the testator signed or acknowledged. Such presence might be presumed when applying the presumption of due execution: Weatherhill v Pearce(see 3.4.5).

Capacity of witnesses: it follows from s.9(c) that witnesses must be mentally and physically capable of being ‘present’ at the execution of the will: Hudson v Parker. Thus a witness must be able to see: In the Estate of Gibson [1949] 2 All ER 90. Also, a witness must have the capacity to sign a will, as this is required by s.9(d). Surprisingly, the Act does not specify a minimum age for a witness. In Wilson v Beddard [1841] 12 Sim 28 a 14-year-old boy was held to be a valid witness, and there seems to be no reason why a significantly younger witness should not be regarded as having capacity.

3.4.5 Witness must attest and sign, or acknowledge his signatureSection 9(d) requires each witness to either attest and sign the will, or to acknowledge his or her signature in the presence of the testator.

Attest and sign: the requirement to ‘attest’ means that the witness must witness the operative signature of the testator, i.e. the one purported to execute the will. When the witness signs, he must make a mark intended to be his signature. The signature may be anywhere on the will provided that it was intended to attest the testator’s operative signature. Note that a witness must sign personally, unlike the case with testators. A witness must sign in the capacity of a witness, but will be presumed to have done so subject to contrary evidence: In the Estate of Bravda [1968] 2 All ER 217 and In the Goods of Sharman (1869) 1 P&D 662.

Acknowledgement by witness: a witness may acknowledge a previously made signature, i.e. he must demonstrate through words or conduct that he accepts the signature as his own. In Couser v Couser it was held that protesting about the validity of one’s own signature could amount to an acknowledgement of that signature.

Presence of the testator: the meaning of ‘presence’ is the same as in s.9(a) and (c): the testator must be mentally and physically present when the witnesses sign the will or acknowledge a signature. In Re Chalcraft the testatrix was held to be mentally present even though she was slipping into unconsciousness when the witnesses signed her will. As for physical presence, the same rule requiring an unobstructed line of sight between testator and witnesses applies. For a vivid illustration of this somewhat artificial rule see Casson v Dade (1781) 1 Bro 99. Note that although the witnesses must sign or acknowledge in the testator’s presence, they need not do so in each other’s presence.

Order of execution: section 9 prescribes the chronological order in which a will is to be executed. Thus the testator must complete what he needs to do – signing his will or acknowledging his signature in the simultaneous presence of the witnesses – before the witnesses do what they are required to do – ‘attest and sign’ etc. It thus follows that if a witness signs before the testator has completed his part, the execution is invalid, as occurred in Re Colling: see also Wyatt v Berry [1893] P 5. However, following the LRC Report No. 22, s.9 was amended so as to negate the unfortunate result in Re Colling. A witness is now entitled to acknowledge an earlier signature. Had this been the position when Re Colling was decided, the decision would probably have been different.


3.4.6 Presumption of due executionThe presumption that all formalities have been correctly carried out – omnia praesumuntur rite esse acta – applies when conclusive proof is lacking that the correct formalities were carried out, but it is probable that they were. In Harris v Knight [1890] 15 PD 170 the presumption was said to operate ‘where there is no proof one way or the other, but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid.’ The presumption was applied in Weatherhill v Pearce as to the question whether the testatrix acknowledged her signature in the simultaneous presence of the witnesses: see also Re Denning [1958] 2 All ER 1 and Re Chapman [1999] 5 CL 566. The strength of the presumption may depend on factors such as the character of the testator and his ability to manage his affairs. Also, the presence or otherwise of an attestation clause may be crucial. An attestation clause is not required by s.9 to make a will valid, but if it is not included, it is far less likely that the presumption of due execution will be applied.

3.4.7 ReformThe question of formalities is a controversial issue and one that you need to have a view about. What should be the purpose of formalities? Protecting the testator? Preventing fraud? Anything else? Some argue that the current law is too technical and rigid, leading to unfortunate cases such as Re Colling and Re Groffman. Thus, it is said, there ought to be a power in the courts to dispense with compliance with all the formalities, provided it is clear that the will was genuinely intended by the testator and that there was substantial compliance with the formalities required by s.9.

But it is quite possible to argue the contrary: that the cases predominantly show the courts being very lenient or flexible in their application of s.9 – Casson v Dade, Re Chalcraft, Couser v Couser especially. And the formalities required by s.9 may be criticised as not being strict enough. For example, should it not be a requirement that a will is dated? Should more witnesses be required? Is not the requirement of a line of sight between testator and witnesses too loose? Why not require that testators make their wills in the presence of a solicitor or notary? What do you think?

Activities 3.8–3.113.8 Explain what is meant by the requirement in s.9(a) that a will must be ‘signed

by the testator’.

3.9 T takes his will to his neighbours, Ken and Alma, and asks them to witness him signing ‘an important document’, but does not tell them that it is a will. He signs his will in their kitchen while Alma is peeling potatoes. Ken is also there but his sight has deteriorated significantly in recent months.

Has T satisfied the requirements of s.9(c)?

3.10 The Law Commission asks you to write a paper on the legal qualifications required to be a witness to a will. What would be your main points?

3.11 Explain the operation of the presumption of due execution.


SummaryFor a will to be validly executed, it must satisfy s.9 Wills Act 1837. Thus the will must be in writing and signed by the testator or by someone in his presence and by his direction. The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. And each witness must either attest and sign the will or acknowledge his signature in the presence of the testator. A will may be presumed to have been duly executed, where there is no conclusive evidence that it was so executed, if the evidence points to the probability of it being validly executed. Although an attestation clause is not necessary, its presence in a will greatly increases the likelihood of the presumption being applied.


Self-assessment questions1. In what language must a will be written to be valid under English law?

2. In what circumstances is a will considered validly signed even though the signature was made before any provisions were written out?

3. How many witnesses must be present when a witness signs the will?

4. Why was the execution of the will in Re Groffman invalid?

Useful further reading ¢ Langbein, J. H. (1975) ‘Substantial compliance with the Wills Act’ 88 Harvard Law

Review 489.

¢ Borkowski, A. [2000] ‘Reforming section 9 of the Wills Act’ 64 Conv 31.


u outline the formalities required for making a will.

3.5 Incorporation

Essential reading ¢ Borkowski, Chapter 4: ‘Making a will: formalities’, pp. 128–131.


¢ Case: University College of North Wales v Taylor [1908] P 140.

The doctrine of incorporation allows documents, which have not been executed in accordance with s.9 Wills Act 1837, to form part of a will providing they have been incorporated in the will. Three conditions must be satisfied in order for a document to be incorporated:

1. Document must be identified

The document must be sufficiently described in the will to be identifiable, and must satisfy the description. It was said in Croker v Marquis of Hertford [1844] 4 Moo Pc 339 that ‘certainty and identification is the very essence’ of incorporation.

2. Document must be in existence

The document must be in existence when the will is executed: Singleton v Tomlinson [1873] 3 App Cas 404. But note that a document which did not exist when the will was executed is nevertheless incorporated if the will was republished after the document came into existence: In the Goods of Lady Truro [1866] 1 P&D 201, and compare with In the Goods of Smart [1902] P 238 (for republication, see Chapter 4 section 4.6).

3. Document must be referred to as existing

The will must refer to the document as being in existence. The document will not be incorporated if the reference in the will can be construed as applying to that document coming into existence after the will was executed: University College of North Wales v Taylor.

Activity 3.12Read University College of North Wales v Taylor and explain why incorporation was not applied in that case.



SummaryAn unattested document may form part of a will if it is incorporated into the will. To be incorporated, the document must be identified in the will, must be in existence when the will was made, and must be referred to in the will as existing when the will was executed.

Self-assessment questionWhy was the document in In the Goods of Lady Truro held to be incorporated?


u indicate when the doctrine of incorporation operates.

Sample examination questionsQuestion 1 ‘Given the great importance of making a will, it is absurd that the rules on testamentary capacity are so vague, especially as regards the elderly and the infirm.’ Discuss.

Question 2 To what extent do the statutory requirements for making wills constitute a trap for testators of home-made wills?

Question 3 Ada has recently died leaving an estate worth £500,000. She made a correctly executed will in which she bequeathed a legacy of £15,000 to her best friend, Betty, and left the residue of her estate to her cousin, Charles. Her only other surviving relation is her sister, Doris, with whom Ada had never been close.

Although Ada was only aged 54 when she died, she had suffered a massive stroke in her late 40s which had left her in need of nursing home care for the last few years of her life. Her memory had been badly affected by the stroke and she found it difficult to communicate. Nevertheless, the nursing home staff found her to be generally lucid and able to comprehend routine things.

The will was made shortly before Ada’s death at Charles’s suggestion. Ada seemed reluctant but eventually agreed when Charles told her that, if she did not make a will, all her property would pass to the state. Ada insisted that a legacy of £50,000 should be left to Betty but Charles misheard what she said and thought the sum was £15,000. He then drafted the will himself and read it over slowly and clearly to Ada in the presence of two of the nursing staff. Ada nodded her assent and signed the will unaided.

Advise Betty and Doris.

Question 4 (a) Explain and comment on the statement in Hindmarsh v Charlton [1861] 8 HL Cas 160, 167 that for a will to be validly signed ‘there must either be the name or some mark which is intended to represent that name’.

(b) Ellen made a short will on one side of A4 paper in which she left all her property equally to ‘the various persons listed in the paper that will be found with my will’. The will was not dated. On her death a few months later, the will was found in a folder entitled ‘Testamentary Documents’. The only other document in the folder was a loose sheet of paper headed ‘Beneficiaries’. Below the heading were listed several names, all close friends and relations of Ellen. Her signature appears at the bottom of this sheet. It transpires that the will was witnessed by her niece, Fiona, one of the names on the list, and Fiona’s son, Gerald, aged 15.

Discuss.


Advice on answering the questionsQuestion 1 This question required some analysis and critical discussion from you of the rules of capacity. The bulk of your answer should be devoted to the Banks v Goodfellow test and related aspects such as the position regarding delusions, lucid intervals, and the application of the rule in Parker v Felgate. The position of the elderly and infirm requires reference to cases such as Kenward v Adams – ‘the golden but tactless rule’ – and Re Parsons. Did you consider the opening assertion that making a will was of ‘great importance’? A good answer would do so and not just assume the words to be true. After all, why is it that the great majority of people in England die intestate? Note that when answering a quotation question such as this one, you should comment on every word or phrase or clause that could be regarded as relevant.

Question 2 In this question you need to analyse each constituent element of s.9 and reach a conclusion on how strict or difficult is the formality required for testators to satisfy when making wills without legal advice. You need to point out that certain requirements have been mostly generously construed or applied, such as the definition of signature, presence, acknowledgement. On the other hand some requirements – such as the necessity for simultaneous presence of witnesses when the testator signs or acknowledges, and for the chronological order of execution to be followed – do seem to constitute a trap for the unwary.

Question 3 First, you need to consider whether Ada had testamentary capacity within the Banks v Goodfellow test. But there is clearly no need here to discuss formalities issues given that you were told that the will had been correctly executed. The question of knowledge and approval was obviously important, especially the issue whether Ada was the victim of fraud or undue influence. Also, does the suspicious circumstances doctrine apply? And can the mistake made by Charles – mishearing the amount of the legacy to Betty – be rectified under s.20 Administration of Justice Act 1982? You should also have stated what the position would have been if the will had been found invalid.

Question 4 Part (a) required you to analyse the rules as to what constitutes a valid signature with reference to cases such as Re Chalcraft and Re Parsons. Also, some mention and explanation was required of s.9(b). In part (b) the main issue was whether the sheet of paper headed ‘Testamentary Documents’ could be incorporated into the will. Also, you should have dealt with the issue whether the loose sheet could be part of the will – was there sufficient nexus with the other sheet? Gerald’s age obviously raised the question of the minimum age for witnesses, while the potential gift to Fiona required the application of s.15 Wills Act 1837.


Notes

Contents

Introduction 38

4 1 Revocation by marriage 39

4 2 Revocation by will, codicil or ‘some writing’ 40

4 3 Revocation by destruction 41

4 4 Conditional revocation 43

4 5 Alterations 44

4 6 Republication and revival 45

4 Revocation


Introduction

Revocation is the converse of making a will: it consists of the rules which determine how valid wills are made invalid, i.e. how they are unmade. The basic rules are statutory, namely sections 18 and 20 of the Wills Act 1837, but again it is the way in which the rules have been interpreted by the courts that provides the chief interest and challenge in this subject. In particular, the issue of revocation by destruction will involve you in the study of some factually vivid and bizarre decisions.

As part of this topic you will also study related issues: the rules concerning alterations made to a will, the question of republication – whereby a valid will is updated – and revival, whereby an invalid will is ‘resurrected’ and made operative again.


u state the rules on revocation by marriage

u explain how wills are revoked by another will, codicil or ‘some writing’

u outline the requirements for revocation by destruction

u explain the operation of the conditional revocation rule

u state the rules on alterations of wills

u compare the requirements and consequences of republication and revival.

Succession 4 Revocation page 39

4.1 Revocation by marriage

Essential reading ¢ Borkowski, Chapter 5: ‘Revocation’, pp. 37–143.

¢ Kerridge, Chapter 7: ‘Revocation, alteration, revival and confirmation of will’, pp. 123–128.


Section 18(1) of the Wills Act 1837 provides that as a general rule a will is revoked by the testator’s marriage. A void† marriage, however, does not revoke prior wills, but a voidable marriage does: Re Roberts [1978] 3 All ER 225.

There are two exceptions to the general rule:

Wills made in expectation of marriage

A will is not revoked by a subsequent marriage if it appears from the will that at the time it was made the testator was expecting to be married to a particular person and that he or she intended that the will should not be revoked by the marriage: s.18(3). It is not clear what ‘expecting’ means, but the use of the word ‘fiancé’ or ‘fiancée’† will probably suffice: Re Coleman [1975] 1 All ER 675. Describing the donee as ‘my wife’ may even suffice as in Pilot v Gainfort [1931] P 103, although not in Re Gray [1963] 107 SJ 156. It is necessary, for this exception to apply, that the will shows that the testator had a particular person in mind: Sallis v Jones [1936] P 43. Note that even if s.18(3) does not apply, a disposition in a will can take effect despite the subsequent marriage: s.18(4).

Dispositions in exercise of a power of appointment†

Section 18(2) provides that a disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testator’s subsequent marriage unless the property so appointed would pass in default of appointment to his personal representatives.

The above rules in s.18 apply to wills made after 1982. For wills made before 1983, note that under s.177 of the Law of Property Act 1925 a will expressed as being made in contemplation of marriage was not revoked by the subsequent marriage.

Activity 4.1Explain the purpose of s.18(2) of the Wills Act 1837.


Self-assessment questionWhat must be proved in order to show that a will made by a person expecting to marry was not revoked by that person’s subsequent marriage?

SummaryA will is revoked by the subsequent marriage of the testator subject to the exceptions in ss.18(2)–(4) of the Wills Act 1837.


u state the rules on revocation by marriage.

† A void marriage is one that will be regarded by every court in any case in which the existence of marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.’ (Lord Greene M.R. in De Reneville v De Renneville [1948] p. 11, III.)

† Fiancé (male) / fiancée (female) (French): a person to whom one is formally engaged to be married.

† Power of appointment: a right given to the donee by a person to confer property on persons in accordance with the terms of the power.


4.2 Revocation by will, codicil or ‘some writing’


¢ Kerridge, Chapter 7: ‘Revocation’, pp. 133–136.

¢ Cases: Collins v Elstone [1893] P 1; Re Phelan [1971] 3 WLR 888.

A testator may revoke a will or codicil wholly or partially by express words in a later will or codicil or by ‘some writing’ executed like a will: s.20 Wills Act 1837.

4.2.1 Revocation by another will or codicilIt is standard practice in professionally drafted wills for a revocation clause to be included, often near the beginning of the will. A typical clause might run as follows: ‘I hereby revoke all my previous wills’. No set form of words is required but it is insufficient simply to state that the will is the testator’s ‘last’ or ‘only’ will. A revocation clause will revoke all prior testamentary dispositions – if worded to do so – but will not be operative if a contrary intention is evident: In the Estate of Wayland [1951] 2 All ER 1041. Where the clause is included without the testator’s knowledge and approval, it will not take effect, as was held in Re Phelan [1971] 3 WLR 888, but note that the clause does operate where the testator was simply mistaken as to its legal effect: Collins v Elstone [1893] P 1.

Even if a will does not expressly revoke prior dispositions, it will do so impliedly to the extent of any inconsistency, i.e. the later will prevails in matters of conflict. For useful illustrations of implied revocation see Re Hawksley’s Settlement [1934] Ch 384 and Thorn v Dickens [1906] WN 54.

Note that revocation, whether express or implied, occurs when the later will is validly executed. There must, however, be evidence that the later will was executed and that it contained words which expressly or impliedly revoked prior dispositions: Re Howard [1944] P 39. If the revoking will is itself later revoked, as occurred In the Goods of Hodgkinson [1893] P 339, the originally revoked will remains revoked, i.e. if will X is revoked by will Y which itself is later revoked by will Z, then will X remains revoked – it cannot be revived by the revocation of the will which revoked it.

4.2.2 Revocation by ‘some writing’A will can be revoked wholly or partially by some writing declaring an intention to revoke, if that writing was executed in the manner required of a will: s.20. Typically, the ‘writing’ will consist of a letter written by the testator, as In the Goods of Durance [1872] 2 P&D 406. The revocation occurs when the letter is signed by the testator and witnesses as required for a will.

Activity 4.2Is it possible to reconcile Collins v Elstone with Re Phelan?


Self-assessment questionWhen a will is revoked by a subsequent will, at what moment does the revocation occur?

SummaryUnder s.20 of the Wills Act 1837, wills can be revoked by another will or codicil or by some writing, declaring an intention to revoke, executed like a will.


u explain how wills are revoked by another will, codicil or ‘some writing’.


4.3 Revocation by destruction



¢ Cases: Cheese v Lovejoy [1877] 2 PD 251; Gill v Gill [1909] P 157; Sugden v St. Leonards [1876] 1 PD 154.

4.3.1 Revocation by destructionA will can be revoked ‘by burning, tearing or otherwise destroying’ the will by the testator or by some person in his presence and by his direction, with the intention of revoking the will: s.20 Wills Act 1837. In the leading case Cheese v Lovejoy [1877] 2 PD 251, it was said that ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two’.

4.3.2 Act of destructionThere must be an act of ‘burning, tearing, or otherwise destroying of the will, but the whole will need not be destroyed’ – it suffices if ‘the essence of the instrument’ is destroyed: Hobbs v Knight [1838] 1 Curt 768. Cutting off the testator’s or witnesses’ signatures will suffice, or erasing them as in Re Adams [1990] 2 All ER 97. The phrase ‘otherwise destroying’ must be construed eiusdem generis (see Chapter 5, section 5.3.5) with burning and tearing. Thus putting a line through a will, writing ‘all these are revoked’ and throwing away the will is insufficient, as was held in Cheese v Lovejoy. There is some authority for the view that if the testator fails to complete what he intended to do by way of destruction, the will is not revoked: Perkes v Perkes [1820] 3 B&A 489 and Elms v Elms [1858] 1 Sw&Tr 155. If a non-essential part of the will is destroyed, partial revocation may result providing the court can make sense of the remaining provisions: see In the Estate of Nunn [1936] 1 All ER 555 and Re Everest [1975] 1 All ER 672.

4.3.3 The person destroyingThe destruction of the will must be by the testator or some person in his presence and by his direction: s.20.

u In the Goods of Dadds [1857] Deane 290 held that ‘presence’ requires there to be a line of sight between the testator and the act of destruction.

u In the Estate of Kremer [1965] 110 SJ 18 illustrates the need for presence in the case of a solicitor burning a client’s will in their absence.

u Gill v Gill [1909] P 157 held that failure by the testator to stop his wife from destroying his will did not amount to ‘direction’ that it should be destroyed, nor could subsequent ratification of the wife’s act amount to direction.

4.3.4 Animus revocandi – intention to revokeThe testator must have the intention to revoke the will, the same degree of mental capacity being required as for making a will: Re Sabatini [1969] 114 SJ 35. The intention to revoke must coincide with the destruction of the will: Gill v Gill (above). For an illustration of failure to revoke because the destruction was effected by a ‘very drunk’ testator, see Brunt v Brunt [1873] 3 P&D 37.


4.3.5 PresumptionsThere are two presumptions of considerable importance in practice concerning revocation by destruction.

Mutilated will

If a will is found on the testator’s death in a mutilated condition, and was known to have been in his possession prior to his death, it is presumed that it was mutilated by the testator with the intention of revoking it (wholly or partially). The presumption may be rebutted: Bell v Fothergill [1870] 2 PD 148.

Lost will

If a will cannot be found on the testator’s death, but was last known to have been in his possession, it will be presumed to have been destroyed by the testator with the intention to revoke: Sugden v St. Leonards [1876] 1 PD 154. It was held in d’Eye v Avery [2001] WTLR 227 that the presumption cannot apply if the testator’s will had never been in his possession, nor can it apply if the will had been given by the testator to someone for safe-keeping: Chana v Chana [2001] WTLR 205. The presumption may be rebutted by evidence to the contrary in which case proof will be needed of the contents of the lost will, e.g. a copy of the will. In Sugden v St. Leonards the evidence of the alleged chief beneficiary was accepted because she was an exceptionally competent and unimpeachable witness.

Activities 4.3–4.54.3 Explain why throwing a will into a rubbish bin does not revoke it.

4.4 What is problematic about the rule that a will is not revoked if the testator did not complete what he intended to do by way of destruction?

4.5 A asks his solicitor, B, to destroy A’s will. B says the he can only do that in A’s presence. A calls at B’s office whereupon B gives the will to his secretary to put through the shredding machine. She does so.

What other facts do you need to know to decide whether the will has been revoked by destruction?


Self-assessment questions1. What degree of mental capacity is required to revoke a will by destruction?

2. What did Sugden v St. Leonards decide?

SummaryA will is revoked by destruction under s.20 of the Wills Act 1837 if it was burned, torn or otherwise destroyed by the testator, or someone acting in his presence and under his direction, with the intention to revoke the will.


u outline the requirements for revocation by destruction.


4.4 Conditional revocation



¢ Cases: Re Jones [1976] Ch 200; Re Finnemore [1992] 1 All ER 800; In the Estate of Southerden [1925] P 177.

The basic rule is that if a testator only wishes to revoke his will conditionally, it will not be revoked unless the condition is satisfied. In some nineteenth- century cases the courts applied this rule without due consideration whether the testator had really intended a conditional revocation. The correct approach, however, was emphasised in Re Jones [1976] Ch 200: revocation will not be held to be conditional unless there is clear evidence that that is what the testator intended. Note that it is possible for a testator to have both a conditional and an absolute intention to revoke in the same instrument: Re Finnemore [1992] 1 All ER 800.

The conditional revocation rule has been applied primarily in the following scenarios:

u Failure to execute another will: the testator revoked his will conditionally on executing another will, but failed to do so, as occurred in Dixon v Treasury Solicitor [1905] P 42.

u Failure to execute a valid will: the testator revoked his will conditionally on executing another will, but executed it invalidly: In the Estate of Botting [1951] 2 All ER 997.

u Failure to execute an effective will: the revocation was conditional on the execution of another will, but the testator executes a will which, although valid, lacks effect: In the Goods of Hope Brown [1942] P 136.

u Failure to revive a will: if a testator revokes a will with the intention of reviving an earlier will, the revocation will be ineffective since a revoked will cannot be revived in this way: Powell v Powell (1866) 1 P&D 209.

u Mistaken belief: where the testator revokes his will in a belief which turns out to be mistaken: In the Estate of Southerden [1925] P 177. It is arguable, however, that mistaken belief cases are not strictly examples of conditional revocation but rather of an absolute intention to revoke.

Activities 4.6–4.74.6 Read Re Finnemore and explain how the court reached its decision.

4.7 Summarise the potential situations in which the conditional revocation rule may be applied.

Feedback: see end of guide. No feedback provided to Activity 4.7.

Self-assessment questionWhat type of conditional revocation scenario is illustrated by In the Estate of Southerden?

SummaryA will is not revoked if the testator revokes it conditionally and the condition is not satisfied. Clear evidence is required that the testator’s intention was to revoke conditionally.


u explain the operation of the conditional revocation rule.


4.5 Alterations



¢ Case: Re Itter [1950] P 130.

Altering a will is not the same as revoking it, wholly or partially. However, the effect of an alteration will often have a similar consequence as that of partial revocation, i.e. the affected part fails to take effect.

The rules on alterations depend on when the alteration was made.

4.5.1 Alterations before execution of the willAn alteration made before the will is executed is valid without the need for any additional formality. However, it is advisable for the alteration to be signed and attested because there is a presumption that an unattested alteration was made after the execution of the will (with the consequences outlined below). The presumption is rebuttable, the onus of proof lying on the person propounding the alteration as part of the will to prove that it was made before the execution of the will: Keigwin v Keigwin [1843] 3 Curt 607.

4.5.2 Alteration after execution of the willAccording to s.21 of the Wills Act 1837 an alteration made after the execution of the will shall not be valid or have any effect, except so far as the words before such alteration are ‘not apparent’ (see below), unless the alteration was executed in the same manner as a will. It follows that the alteration must be signed by the testator and attested by the witnesses. Further, s.21 requires that the signature be made ‘opposite or near’ to the alteration. In Re White [1990] 3 All ER 1 the alterations were invalid because the testator failed to sign them.

‘Not apparent’: the effect of s.21 is that invalid alterations can have effect to the extent of obliterating the original words if those words are ‘not apparent’. This phrase has been construed as meaning not apparent on the face of the will to the eye: Re Itter [1950] P 130. See also Ffinch v Combe [1894] P 191. Note, however, that any means may be used to decipher words if the court is able to apply the conditional revocation rules, as occurred in Re Itter and In the Goods of Horsford [1874] 3 P&D 211.

Activity 4.8Consider to what extent the validity of an alteration depends on when it was made.


Self-assessment questions1. Where must an alteration, made after the execution of a will, be signed?

2. What did Re Itter decide as to the meaning of ‘not apparent’ in s.21?

SummaryAn alteration made before the will is executed is valid without any formality necessary. If an alteration was made after the will was executed, the alteration must be signed and attested according to s.21. However, even if it is not duly executed, an alteration may have the effect of making the obliterated words not apparent.


u state the rules on alteration of wills.


4.6 Republication and revival



¢ Case: Re Hardyman [1925] Ch 287.

Republication is the confirmation of a valid will, giving it a new starting date. Revival is the resurrection of a revoked will.

4.6.1 RepublicationA will may be republished either by re-execution of the will or by reference to the will in a subsequent codicil. In the latter case, it is necessary that the testator intended to republish. For this purpose it seems that a mere reference to the will suffices: Re Harvey [1947] Ch 285.

The effect of republication is that the will is deemed to have been made at the time of the republication: s.34 Wills Act 1837. Thus descriptions of persons refer to those who satisfy the description as at the time of republication: Re Hardyman [1925] Ch 287. If a gift has been adeemed (see Chapter 7) and replaced by a similar asset, subsequent republication of the will is unlikely to carry the new asset: Re Galway’s WT [1950] Ch 1. Where it is clear that the testator did not intend that republication should give the will a new starting point, his intention prevails: s.34 is subject to a contrary intention, as illustrated in Re Moore [1907] 1 IR 315.

4.6.2 RevivalAccording to s.22 Wills Act 1837, a revoked will can be revived either by re-execution of the will or by a codicil executed like a will and showing an intention to revive. This intention must be clearly demonstrated: In the Goods of Steele [1868] 1 P&D 575. However, the required intention need not be expressly stated; it can be implied from the testator’s words, as occurred In the Goods of Davis [1952] P 279.

In order for a will to be revived, it must be in existence – a destroyed will cannot be revived: Rogers v Goodenough [1862] 2 Sw&Tr 342. Where a will is revived, it is deemed to have been made at the time when it was revived: see s.34.

Activity 4.9T makes a will in 2000 containing a clause revoking all prior wills (although T had not previously made a will). In 2001 he makes another will revoking his first will. The following year he makes a codicil reviving the first will. Which documents represent his will?


Self-assessment questions1. What is the effect of republication on a will in which a gift was adeemed before

the republication?

2. What did Rogers v Goodenough decide?

SummaryRepublication confirms an existing will and gives it a new starting date. Revival resurrects a revoked will as from the date of revival. Both republication and revival can be affected by re-execution of the will or by a later codicil. In the case of revival, the codicil must show an intention to revive.



u compare the requirements and consequences of republication and revival.

Sample examination questions Question 1 To what extent is the operation of the rules of revocation determined by proof of the testator’s intention?

Question 2 Dan is desperate. He is in his mid 40s and has no stable relationship. He thinks it is time that he married. He meets Anne through a dating agency. He is so smitten by her after the initial meeting that he starts to fantasise about marrying her. He executes a will in which he leaves £1,000 to the RSPCA, his favourite charity, and the residue of his estate to ‘Anne, my future wife’. But Anne does not like Dan at all and refuses to meet him again. However, Dan is so persistent that she changes her mind. They start seeing each other regularly and eventually get married. A week after the marriage Dan decides to increase the gift to the charity. He pastes a strip of paper over the amount ‘£1,000’ in his will and writes ‘£5,000’ on the strip, but does not sign the alteration. It is not possible to discover what the initial amount was except through X-ray photography.

Anne had made a will before she met Dan in which she left all her property to her sister, Janet. After her marriage Anne executed a document, described as a codicil to her will, in which she left her property equally to Dan and Janet. Later, while under heavy sedation following a serious road accident, she decided that she wanted the codicil destroyed. She asked Janet, who was visiting her in hospital, to tear up the codicil. Janet started to do so but was interrupted by the ward sister, who insisted that Janet stopped littering the ward. Janet removed the codicil from the ward and completed tearing the codicil in an annexe which could be seen from the ward.

Discuss.

Would it have made a difference if Anne had sent the codicil to Janet, asking her to destroy it, and Janet had done so?

Advice on answering the questionsQuestion 1 A ‘to what extent’ question obviously requires an answer which contains a balanced analysis, considering arguments for and against the proposition or point at issue. Clearly the intention of the testator is relevant to the s.18 exception concerning expectation of marriage, but how far is intention relevant to the validity of marriage, i.e. the event which brings into operation the general rule in s.18? As regards revocation clauses, you need to discuss cases such as Re Phelan and Collins v Elstone, particularly as to whether a valid distinction can be drawn between them. Revocation by destruction obviously requires some treatment, especially cases such as Cheese v Lovejoy, Re Sabatini and Gill v Gill. And how relevant is the testator’s intention in the operation of the presumptions of revocation? It is very important also to consider the rules on conditional revocation.

Question 2 Clearly the first issue is whether Dan’s will is revoked by his marriage to Anne. Does it fall within the exception in s.18(3)? Consider here whether Dan can be said to have been expecting to marry Anne. His alteration of the will is invalid but what effect does it have? Consider whether conditional revocation might apply here. As for Anne, does the codicil revive her will? If so, what is the effect of the revival? The destruction issues raise several points, including the matter of Anne’s intention and the question whether the codicil was destroyed in her presence in either of the alternative scenarios. Among the cases that require discussion here are Re Itter, Re Sabatini, Perkes v Perkes, in the Goods of Dadds and in the Estate of Kremer.

Contents

Introduction 48

5 1 The problem of construction 49

5 2 General rules of construction 50

5 3 Specific rules of construction 52

5 4 The admissibility of extrinsic evidence 55

5 Construction


Introduction

People do not always make clear what their wishes are when disposing of their property in a will. This is hardly surprising given the huge vocabulary and wide range of meaning that can be given to words in the English language (or whatever language in which the will is written). So the courts have to construe what the testator meant by the words he used, and this process is known as ‘construction’. The judges have to apply the rules of construction – both general and specific – which Parliament and the courts have laid down. In doing so, their approaches will inevitably not be identical. Some judges will feel bound to apply the strict, literal meaning of the words used, while others will feel justified in adopting a more flexible, purposive approach. Such conflicts in attitudes can lead to a certain amount of uncertainty and controversy, although statute has at least clarified the position regarding the use of extrinsic evidence. (Extrinisic evidence is evidence from outside the will itself.)

In your study of the rules of construction, and how the judges apply them, you can expect to come across decisions which will intrigue you and occasionally may exasperate you. But remember that the courts have no power to substitute their own view of what the testator intended. Their function is to ascertain what the testator intended through the words he used in the will.

Learning outcomesBy the end of this chapter and the relevant readings you should be able to:

u explain the problem of construction

u state the general rules of construction

u state the specific rules of construction

u demonstrate the extent to which extrinsic evidence is admissible in the construction of wills.

Succession 5 Construction page 49

5.1 The problem of construction

Essential reading ¢ Borkowski, Chapter 6: ‘The construction of wills’, pp. 172–178.

¢ Kerridge, Chapter 10: ‘The construction of wills’, pp. 229–233.

¢ Cases: Perrin v Morgan [1943] AC 399; Re Rowland [1963] Ch 1.


The complexity of the English language creates a minefield of potential problems for those who draft wills. To a great extent only a lawyer can appreciate the full significance of certain terms or phrases, such as ‘personal estate’. Thus the testator of a home-made will, made without professional assistance, takes a great risk of his expressed intentions not being understood as he understood them. In trying to understand those intentions the court will obviously lack the chief witness – the testator himself.

The Law Reform Committee (Report No. 19, 1973) stated that in construction disputes the law must hold the balance between giving effect to the testator’s ‘true’ intentions on the one hand, and enabling those concerned to rely on the words actually used in the will, on the other. Thus the balance to be achieved is between the need for certainty and the need for flexibility, reflected in what could generally be described as the broad and the narrow approaches to construction.

5.1.1 The narrow approachWhen adopting the narrow approach, the judge construes the testator’s words in a predominantly literal manner and is cautious in accepting other evidence of the testator’s ‘true’ intentions. This approach is traditionally associated with Chancery judges, influenced particularly by Wigram’s treatise ‘Examination of the rules of construction’ (1831). The essence of Wigram’s propositions was that words should be construed in their ‘strict and primary sense’ subject to the context of the will. Illustrations of this approach can be found in Re Sykes [1940] 4 All ER 10, Re Lewis’s WT [1985] 1 WLR 102 and in Re Rowland. In Re Rowland, the phrase ‘coinciding with’ was given a strict, literal interpretation with the result that the testator’s estate was distributed in a manner clearly inconsistent with his wishes.

5.1.2 The broad approachThe broad approach to construction entails a greater readiness to ascertain the intentions of the testator and thus to achieve the most sensible results on the merits of each case. There is, accordingly, less adherence to the strict, literal meaning of the testator’s words. In Perrin v Morgan, Lord Atkin referred to the need for the court to adopt ‘what appears the most probable meaning’ and emphasised that the object was ‘to ascertain from the will the testator’s intentions’.

Lord Denning consistently favoured the broad approach, most notably in his dissenting judgment in Re Rowland where he stated:

‘the whole object of construing a will is to find out the testator’s intentions, so as to see that his property is disposed of in the way he wished. True it is that you must discover his intention from the words he used: but you must put upon his words the meaning which they bore to him... What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at the time, and then say what he meant by his words.’

Activities 5.1–5.25.1 Consider whether the courts should follow a narrow or a broad approach in

construing wills.

5.2 Read Re Rowland and explain the reasons for the majority decision.



SummaryAmbiguities in the meaning of words inevitably create difficulties for the courts when construing wills. The cases show that both the narrow and broad approaches to construction have been applied. In the narrow approach, the strict, literal meaning of words is followed, resulting in a measure of certainty, whereas when the broad approach is taken, the court is more concerned with discovering what the words used meant to the testator – that is a more flexible approach and more likely to lead to justifiable decisions in individual cases.

Useful further reading ¢ Kerridge, R. and Rivers, J. (2000) ‘The construction of wills’ 116 LQR 287.

¢ Lord Denning The Discipline of Law. (London: Butterworths, 1979) [ISBN 0406176051] Chapter 3: ‘The interpretation of wills and other unilateral documents’.


u explain the problem of construction.

5.2 General rules of construction

Essential reading ¢ Borkowski, Chapter 6: ‘Construction of wills’, pp. 178–186.


¢ Cases: Jones v Midland Bank [1998] 1 FLR 246; Abbott v Middleton [1858] 7 HLC 68; Re Smalley [1929] 2 Ch 112; Re Cook [1948] Ch 212.

5.2.1 The court construes expressed intentionsA will must be in writing (s.9 Wills Act 1837) so it follows that the court’s function is to construe the words in the will and not to rewrite the will or speculate what the testator might have intended to put in it. As was said in Perrin v Morgan, the basic rule in construction is ‘to put on the words used the meaning which, having regard to the terms of the will, the testator intended’. Note that in two relatively recent cases – Jones v Midland Bank and Anthony v Donges [1998] 2 FLR 775 it was stressed that the court had no power to rewrite wills on the basis of speculation as to what the testator intended. However, the court does have a very limited power to omit, substitute or insert words providing it is clear from the will what omission, substitution or insertion is necessary to carry out the testator’s intentions: Re Whitrick [1957] 2 All ER 467. Remember also that in some circumstances a will may be altered by way of rectification under s.20 Administration of Justice Act 1982.

5.2.2 Words to be construed in their ordinary stateThe words should be read in their ‘ordinary and grammatical sense’ unless ‘some repugnance or inconsistency’ with the declared intentions of the testator would result, in which case a secondary sense of the words may be taken: see Abbott v Middleton. Some words, however, will have more than one ‘ordinary’ meaning, in which case the court will try to ascertain which meaning was intended in the light of the surrounding circumstances. The word ‘money’, for example, has been held to have no particular settled meaning and thus could be interpreted as including all of the testator’s personalty: Perrin v Morgan. See also Re Trundle [1961] 1 All ER 103 and Re Barnes’s WT [1972] 2 All ER 639 where it was said that a judge should apply his own knowledge of the contemporary use of the English language in the light of such context and circumstances as may assist him.


A secondary meaning may prevail if:

u the ordinary meaning does not make sense in the light of the surrounding circumstances: Re Smalley

u the testator supplies his own ‘dictionary’, i.e. some evidence in the will of what the testator means by the words he has used: Re Lynch [1943] 1 All ER 168.

Where, however, there is no justification for construing words in a secondary sense, the ordinary meaning prevails even if the distribution of the estate appears eccentric – a testator is entitled to be eccentric or capricious: Gilmour v MacPhillamy [1930] AC 712.

5.2.3 Technical words must be given their technical meaningTechnical words are those which have a recognised specific meaning in English law or are terms of art commonly used by lawyers, e.g. ‘personal estate’. Also included are scientific terms and words with a specialised meaning within the testator’s profession or trade.

It seems that the rule that technical words must be construed in their technical sense applies even if the testator did not appreciate the significance of the words used: for a notable example see Re Cook which illustrates the problems that may result when laymen make home-made wills without legal advice. However, the operation of the rule is subject to a contrary intention, so that the secondary sense may prevail over the technical sense if the surrounding circumstances justify that: Re Bailey [1945] Ch 191.

5.2.4 A will must be construed as a wholeThe court must read the will as a whole and not just rely on one passage or part of the will. The fundamental duty of the court is ‘to ascertain the intention of the testator as expressed in his will as read as a whole’: Re Macandrew’s WT [1964] Ch 704. See also Higgins v Dawson [1902] AC 1 where it was said that in construing a will ‘you must look at the whole instrument’.

Activities 5.3–5.45.3 Read Re Cook and explain why the court held that the phrase ‘personal estate’

did not include the testator’s realty.

5.4 T made a home-made will in which he left ‘all my money’ to his sister, S, his only surviving relative. He made no other substantive disposition. On his death, T owned a house and had £1,000 in a bank account. How is the phrase ‘all my money’ likely to be interpreted?


Self-assessment questions1. When construing a will – as opposed to rectifying it – what power does the court

have to make omissions or alterations?

2. What is meant by the term ‘technical words’?

SummarySince a will has to be in writing, it is the meaning of the words in the will that has to be construed. The words must be construed in their ordinary grammatical sense, but a secondary meaning may prevail if the ordinary meaning is not appropriate in the light of the surrounding circumstances or where the testator supplies his own ‘dictionary’. Technical words must be given their technical meaning subject to a contrary intention. When construing a will, the court must consider the whole will, and not just a part of it.


u state the general rules of construction.


5.3 Specific rules of construction


¢ Kerridge, Chapter 11: ‘The construction of wills: specific rules of construction: the construction of powers’; Chapter 12: ‘The date from which a will speaks’, pp. 257–288.

¢ Cases: Re Harrison [1885] 30 Ch D 390; NSPCC v Scottish NSPCC [1915] AC 207; Re Edmondson’s WT [1972] 1 All ER 444; Re Willis [1911] 2 Ch 563.

Whereas the general rules of construction may be regarded essentially as general guidelines to the courts, the specific rules operate in much narrower and more limited circumstances

5.3.1 A will speaks from deathSection 24 Wills Act 1837 provides that references to property in a will shall be construed ‘to speak and take effect as if it [the will] had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will’. Words which indicate a specific time, e.g. ‘the house where I now reside’, suffice to show a contrary intention if the reference is an essential part of the description of the subject-matter of the gift: Re Edwards [1890] 63 LT 481. But if the reference to time is considered superfluous or a non-essential part of the description, s.24 will apply: Re Willis. Where the testator’s interest in the property alters after the execution of the will, s.24 does not apply if it is clear that the testator intended to pass only the interest he held when he made the will: Re Fleming’s WT [1974] 3 All ER 323. Note also, on the issue of contrary intention, the decisions in Re Sikes [1927] 1 Ch 364 and Re Evans [1909] 1 Ch 784.

Section 24 does not apply to descriptions of persons: references in a will to beneficiaries are generally construed as applicable to persons alive at the will’s execution, subject to any contrary intention appearing in the will: Re Whorwood [1887] 34 Ch D 446.

5.3.2 Words denoting relationships

Children

If the will was made after 3 April 1988, references to ‘children’ in a will include illegitimate children unless a contrary intention appears: s.1 Family Law Reform Act 1987. Similarly, legitimated children are included: s.5 Legitimacy Act 1976 (as regards testators dying after 1975). Note that both these Acts apply to all relationships, not just parent-child.

As for adopted children, s.39 Adoption Act 1976 provides that an adopted child is regarded as the lawful child of its adoptive parents but not of any other person.

Issue

There is some old authority to suggest that ‘issue’ prima facie means children, but this is thought dubious. Remoter descendants (e.g. grandchildren and beyond) would probably now be prima facie included.

Next-of-kin

This commonly used phrase means prima facie those persons who are in the nearest degree of blood relationship to the testator at his death. Thus a spouse is prima facie not next-of-kin: Garrick v Lord Cauden [1807] 14 Ves 372.


Relations

The prima facie meaning is the next-of-kin entitled on intestacy: Re Bridgen [1938] Ch 205.

Survivors

Re James’s WT [1962] Ch 226 held that the prima facie meaning was those persons who were alive when the testator died. However, the circumstances may justify the court in construing ‘survivors’ to include persons born after the testator’s death: Re Allsop [1968] Ch 39. In Blech v Blech [2002] WTLR 483 the wider meaning was applied to the phrase ‘as shall survive me’.

5.3.3 The ‘golden’ ruleIn Re Harrison it was stated to be a ‘golden’ rule that ‘when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy.’ Note that the rule applies when the disputed words are capable of alternative meanings: thus it does not apply if a particular meaning must prevail according to the general rules of construction.

5.3.4 The falsa demonstratio ruleThe rule applies to erroneous descriptions (falsa demonstratio) by the testator of property and beneficiaries: a wrong description does not prevent a gift passing, provided that there is sufficient evidence in the will, with the help of any admissible extrinsic evidence, of the testator’s true intentions: Re Gifford [1944] Ch 186. It seems that even where the description is not partially but wholly erroneous, the rule may apply to save the gifts: Re Price [1932] 2 Ch 54. Where, however, the description is erroneous as regards the intended beneficiary but exactly fits another claimant, the rule might not apply: NSPCC v Scottish NSPCC where it was said that ‘the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will’.

5.3.5 The eiusdem generis ruleThe rule states that if general words, e.g. ‘goods’, ‘effects’, are preceded by an enumeration of specific things, the general words will be construed restrictively as passing only property of the same type (eiusdem generis) as the things specifically mentioned. However, the rule operates only if the specific things constitute a single class or type of thing: Gibbs v Lawrence [1862] 30 LJ Ch 171. Where there is no gift of residue in the will, the rule is less likely to apply since there will be less justification to restrict the meaning of the general words.

5.3.6 Inconsistent provisionsWhere two parts of a will are found to be inconsistent, a ‘rule of last resort’ may be applied whereby the later provisions are regarded as prevailing over the earlier. The justification is that the later provision can be regarded as the latest expression of the testator’s wishes: Re Hammond [1938] 3 All ER 308. Of course, the court will try to reconcile the inconsistent provisions. Also, it may hold that the earlier provisions prevail if the context of the will justifies that. Nor does the rule apply where there are two inconsistent residuary gifts: the earlier gift prevails since there is no property left to which the later gift can apply: Re Gare [1952] Ch 80.

Note that if trusts are imposed on an absolute gift in the same will, and the trusts fail, the absolute gift takes effect free of those trusts: Hancock v Watson [1902] AC 14. This rule is sometimes referred to as the rule in Lassence v Tierney [1849] 1 Mac & G 551.


5.3.7 The class-closing rulesA class gift† is a gift intended to be shared between persons answering a general description constituting a class: see Kingsbury v Walter [1901] AC 187 where it was said that a class gift was ‘a gift to a class, consisting of persons who are included and comprehended under some general description and bear a certain relation to the testator’. Note that a gift may be a class gift even though the testator names individuals within the class, as in Kingsbury v Walter.

Where a class gift has been made, the class-closing rules determine when a class is to close and that the size of the class is capable of increasing after the testator’s death. They enable early vesting of the gift, but this can result in unfairness to the persons excluded from taking by the closure of the class. Hence the rules are regarded as controversial: compare the judgments in Re Chartres [1927] 1 Ch 466 and Re Henderson’s Trusts [1969] 3 All ER 769.

The rules are commonly described as ‘the rule in Andrews v Partington’. They apply as follows in four distinct scenarios:

u immediate gift without qualification: for example, ‘To my grandchildren’. If any member of the class is alive at the testator’s death, the class closes at that time: Viner v Francis [1789] 2 Cox 190. If no members were alive at the testator’s death, the class stays open indefinitely.

u postponed gift without qualification: for example, ‘To A for life, remainder to B’s children’. If any member of the class is alive when the postponement ends, the class closes at that time. If there is no such member, the class remains open indefinitely.

u immediate gift without qualification: for example, ‘To my grandchildren who attain the age of 18’. If a member of the class has satisfied the qualification when the testator dies, the class closes at that time, but otherwise closes as soon as a member satisfies the qualification after the testator’s death: Andrews v Partington [1791] 3 Bro CC 401.

u postponed gift with qualification: for example, ‘To A for life, remainder to my grandchildren who attain the age of 18’. The class closes when the postponement ends if a member of the class has satisfied the qualification, but otherwise closes as soon as a member satisfies the qualification after the postponement has ended.

The class-closing rules do not apply if there is evidence of a contrary intention on the part of the testator. For example, in Re Edmondson’s WT it was held that the phrase ‘whenever born’ demonstrated a contrary intention but in Re Chapman’s Settlement Trusts [1978] 1 All ER 1122 the words ‘now born or who shall be born hereafter’ were not sufficient to exclude the rules.

Note that if, in the case of a postponed gift, the preceding interest lapses, the class gift is accelerated, i.e. it becomes an immediate gift. If the preceding interest does not lapse but is disclaimed, the class would appear to close when the postponement ends and not at the date of the disclaimer: Re Harker’s WT [1969] 3 All ER 1.

Activities 5.5–5.85.5 Read Re Willis and explain why the court decided that s.24 Wills Act 1837

applied on the facts.

5.6 Consider whether the ‘golden’ rule serves a useful purpose.

5.7 T makes a will in which he leaves his ‘stamp collection, paintings, garden furniture and other goods’ to X. Can X claim T’s valuable collection of Dresden porcelain under the gift of ‘other goods’?

5.8 The Law Commission asks you to draft a report on the desirability of retaining the class-closing rules. What would be your main points?


† Class gifts: a gift ‘to X’s grandchildren’ would be a class gift, but a gift to ‘each of X’s grandchildren’ would not be.


Self-assessment questions1. What effect does a change in the testator’s interest in property have on the

operation of s.24 Wills Act 1837?

2. How is the word ‘survivors’ likely to be interpreted in a will?

3. What, according to NSPCC v Scottish NSPCC, is the consequence of the accurate use of the name of a beneficiary in a will?

4. Why were the class-closing rules not applied in Re Edmondson’s WT?

SummaryA number of specific rules are applied by the courts in construing wills. Thus a will is construed as speaking from the testator’s death as regards descriptions of property (but not persons). Words denoting relationships have specific meaning, e.g. ‘children’ now includes illegitimate, legitimated and adopted children. The ‘golden’ rule encourages the court to avoid an intestacy where appropriate. Erroneous descriptions of property and beneficiaries may not be fatal where the falsa demonstratio rule applies, while the eiusdem generis rule will restrict the meaning of general words if they are preceded by specific things forming a class. As a last resort in trying to construe inconsistent provisions, the court may follow the later provision in a will. The class-closing rules operate to prevent a class staying open indefinitely as regards the vesting of class gifts.


u state the specific rules of construction.

5.4 The admissibility of extrinsic evidence



¢ Cases: Charter v Charter (1874) LR 7 HL 364; Re Chambers [2001] WTLR 1375; Re Williams [1985] 1 All ER 964.

Extrinsic evidence, i.e. evidence outside the will itself, must obviously be cautiously used as an aid in the interpretation of wills. It can assist in showing which of two or more possible meanings the testator was attaching to a particular word or phrase, but it cannot be used to rewrite a will: see Re Williams.

5.4.1 Types of extrinsic evidenceThere are two types of extrinsic evidence:

u direct evidence: expressions by the testator, such as statements made by him, of his intentions as to the disposition of his property

u circumstantial evidence: this consists of evidence of such surrounding circumstances as may assist the court in interpreting the will. The court will take such circumstances into account under the ‘armchair’ principle: the court places itself in the testator’s armchair to try and ascertain what he meant by the words used. As was stated in Allgood v Blake [1873] LR 8 Ex 160, ‘the court is entitled to put itself in the position of the testator, and to consider all the material facts and circumstances known by the testator with reference to which he is to be taken to have used the words in the will’. Such evidence will typically relate to the testator’s relationship with the person claiming under his will: Charter v Charter. Or it may consist of evidence as to the testator’s use of language, as in Thorn v Dickens [1906] WN 54 where it was shown that the testator commonly referred to his wife as ‘mother’.


5.4.2 Admissibility of extrinsic evidenceBefore 1983 circumstantial evidence was freely admissible under the ‘armchair’ principle but direct evidence could only be admitted in order to resolve a latent ambiguity (i.e. an ambiguity not obvious on the face of the will – see below) or to rebut certain equitable presumptions about the effect of legacies.

The current position, applicable to testators dying after 1982, is contained in s.21 Administration of Justice Act 1982. The main effect of s.21 is to widen the use of direct evidence.

Section 21(1) provides that extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in interpreting a will in so far as:

a. any part of the will is meaningless

b. the language used in any part of it is ambiguous on the face of it

c. evidence, other than the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

The meaning of ‘meaningless’ is not given in s.21 but essentially connotes the situation where the court is unable to give effective meaning to the word, as in Kell v Charmer [1856] 23 Beav 195. Ambiguity on the face of the will – sometimes described as patent ambiguity – may occur for example where the words have more than one ordinary meaning or where they can apply to two or more beneficiaries, as in Gord v Needs [1836] 2 M&W 129, or two or more items of property. Ambiguity in the light of the surrounding circumstances – sometimes described as latent ambiguity – occurred in Re Jackson [1933] Ch 237 and more recently in Re Chambers where direct evidence – written instructions from the testator to his solicitor – was admissible to resolve the ambiguity (gift to charity to care for the testator’s pets, but no pets survived him). It is likely that if s.21 had been enacted when NSPCC v Scottish NSPCC was decided, the decision would have been different.

Note that if the court does not think that there is any ambiguity or that the words are meaningless, extrinsic evidence cannot be admitted: Re Owen [2002] WTLR 619.

If the extrinsic evidence fails to resolve the ambiguity, the gift may fail on the grounds of uncertainty but the court will strive to avoid that consequence: Re Williams and Solem v Guyster [2002] WTLR 1517.

Activities 5.9–5.105.9 Explain the operation of the ‘armchair’ principle.

5.10 Read Re Chambers and explain how the decision was reached.


Self-assessment questions1. What is the distinction between direct and circumstantial extrinsic evidence?

2. What type of surrounding circumstances were relevant to the decision in Charter v Charter?

Useful further reading ¢ Law Reform Committee Report No. 19 (1973) ‘Interpretation of wills’.

¢ Kerridge, R. and Rivers, J. (2000) ‘The construction of wills’, 116 LQR 287, especially p. 306 ff.


SummaryExtrinsic evidence may be used as an aid to construing wills but not in order to re-write them. Such evidence is categorised either as direct or circumstantial. When circumstantial evidence is admitted, the court is placing itself in the testator’s armchair at the time of the making of the will. Before 1983 direct evidence was generally not admissible but s.21 Administration of Justice Act made both direct and circumstantial evidence freely admissible where words are meaningless, or patently ambiguous, or ambiguous in the light of surrounding circumstances. If the evidence fails to assist interpretation of the will, the gift might fail for uncertainty.


u demonstrate the extent to which extrinsic evidence is admissible in the construction of wills.

Sample examination questionsQuestion 1 ‘The operation of the rules of construction is paradoxical. The rules should be designed to clarify the intention of a testator, but often are applied so as to frustrate those intentions.’

Discuss.

Question 2 Tom has recently died leaving a valid home-made will executed in 1998 which included the following gifts:

a. ‘All my camels to my wife Rita’

b. ‘All my money in my bank to my cousin Rachel Anne Jones’

c. ‘My piano, violin, clarinet and other instruments to my brother, Richard’

d. ‘The residue of my personal estate to my children’.

There are no other gifts in the will. The evidence before the court shows that Tom bought five camels in 1997. Two years later he registered Rita with the Camel Club of Great Britain as a part-owner of the camels so that they became tenants in common of the camels.

Tom’s bank account at his death was with Lloyds TSB where he had both a current and a deposit account. He also kept share certificates in his bank relating to his investments in several major companies, and three valuable gold rings which he had inherited as a family heirloom. He has never had a cousin called Rachel Anne Jones but does have two cousins who each claim that they are entitled to the gift of money at the bank: Raquel Mary Jones and Roberta Anne Jones. Tom was very close to Raquel but always called her Rachel as he preferred that name. He only kept in touch with Roberta very infrequently.

Richard, Tom’s brother, is a dentist. He claims the valuable dental instruments that Tom owned (Tom practised as a dentist for many years). Richard has never played a musical instrument. He does not like music of any sort.

Tom’s estate includes some land. It is claimed by David and James, Rita’s children by her former marriage. Tom never had any children of his own.

How would a court be likely to construe the gifts made in the will?


Advice on answering the questionsQuestion 1 This question requires a critical evaluation of the operation of the rules of construction. A good approach would have been to consider whether the rules should indeed be designed to clarify the intention of the testator, or whether rules of construction should have some other purpose. However, the bulk of the answer should be devoted to discussing whether the rules can lead to frustrating the intentions of testators or not. Particular attention should have been given to the expressed intentions rule, the golden rule, the class-closing rules, as well as the effect of s.21 Administration of Justice Act 1982. Cases such as Re Rowland, Re Cook, Perrin v Morgan, Charter v Charter, Re Chambers and the NSPCC case need some discussion. Note that you are not asked to agree that a testator’s intentions are usually or mostly frustrated, but only that they are ‘often’ frustrated.

Question 2 A good way to begin the answer would be to write a short introductory paragraph explaining the general nature of the problem the courts face in construing wills. As regards the camels, if the court adopted a literal construction of the gift, would anything pass to Rita? Does Tom own any camels at the time of his death? Consider also whether the exception to s.24 Wills Act 1837 applies. Regarding the gift of money to the cousin, the phrase ‘money in my bank’ requires discussion in the light of cases such as Perrin v Morgan and Re Trundle. You need to focus also on the falsa demonstratio rule, s.21 Administration of Justice Act 1982 and cases such as Charter v Charter in dealing with the erroneous name issue. As for Richard, the application of the eiusdem generis rule was the main issue – must ‘other instruments’ be confined to musical instruments? The gift to the children requires you to discuss the technical words rule with reference to Re Cook and Re Bailey, and the construction of ‘my children’ in the light of s.21.

Contents

Introduction 60

6 1 Testamentary freedom or restriction? 61

6 2 Applying under the 1975 Act 62

6 3 The ground of the application 66

6 4 The powers of the court 69

6 5 Matters to be considered 71

6 6 Anti-avoidance provisions 74

6 Family provision


Introduction

This topic is by far the most important in this module but can only be sensibly studied towards the end of the module, when you have gained a better understanding of the whole area of Succession. For some years there has been a compulsory question on this topic in the examination paper and this will continue to be the case until further notice. Family provision’s overwhelming importance is partly due to its significance in practice: issues as to family provision arise more frequently than any other in this field, as is evident from the volume of reported cases on the 1975 Act. The topic is also of great theoretical importance as it is concerned with the fundamental issue in Succession – to what extent should a person be able to leave property to whom he wishes in his will?

The Inheritance (Provision for Family and Dependants) Act 1975 provides for a discretionary jurisdiction – as opposed to fixed rights –under which certain persons can apply to the court for provision to be made for them out of the deceased’s estate, on the grounds that the will does not make reasonable provision for them. Application can also be made on the same grounds where the deceased died intestate or where there is a partial intestacy. The court has wide powers to make orders in favour of applicants out of the deceased’s net estate, but must have regard to a number of factors – both general and specific – in determining whether reasonable provision has been made for the applicant and, if not, what that provision should be. The 1975 Act contains important measures aimed at preventing avoidance by the testator of the jurisdiction to make orders under the Act.


u outline the arguments for and against restricting testamentary freedom, and evaluate their respective merits

u compare the different methods of restricting testamentary freedom

u identify the categories of applicants under the 1975 Act, and explain the time limits for making applications

u describe the grounds on which applications can be made

u evaluate the prospects of success of potential applicants

u outline the powers of the court when making orders

u identify and illustrate the matters that the court must consider

u outline the anti-avoidance measures under the Act.

Succession 6 Family provision page 61

6.1 Testamentary freedom or restriction?

Essential reading ¢ Borkowski, Chapter 8: ‘Family provision and testamentary freedom’, pp. 253–258.

¢ Kerridge, Chapter 8: ‘Provision for the deceased’s family and dependants’, pp. 153–155.


6.1.1 Arguments for testamentary freedom The gut reaction of many people on first considering the issue of testamentary freedom is something along the lines of, ‘Well, of course a testator should be able to leave his or her property to whom he or she likes.’ This is an understandable response in some ways, but a more reasoned approach is required by those who argue for testamentary freedom. The principal arguments may be summarised thus:

u it is an essential attribute of ownership of property that the owner should be able to dispose of his or her property on his or her death as he or she wishes

u no system of restricting testamentary freedom is likely to be just

u a restriction is only justifiable if it prevents harm to others: wills confer benefits, therefore restriction cannot be justified

u people will be less inclined to accumulate wealth if their wishes as to its disposal on death can be disregarded.

6.1.2 Arguments for restricting testamentary freedomThe principal arguments are:

u a person’s obligations to maintain family members during his/her lifetime should not be ended by that person’s death

u estates are invariably the product of the efforts of the deceased’s family as well as the deceased

u persons cease to own property when they die, so why should their wishes as to its disposal be regarded as conclusive?

u the enforcement of dispositions on death is not a fundamental right but merely a concession from the state

u restricting testamentary freedom reduces the degree of bitterness and disappointment which family members may feel as the result of the will’s provisions

u legal systems, ancient and modern, have restricted testamentary freedom, thus demonstrating that restriction is generally thought to be desirable.

Activity 6.1Consider the merits of the argument that a person’s duty to maintain family members should continue after that person’s death.


6.1.3 Methods of restrictionThere are two principal methods of restricting testamentary freedom, as adopted in legal systems past and present:

u to give certain persons, usually close family members, fixed rights of inheritance, i.e. a right to a share of the estate

u to give those persons a right to apply to the court for provision out of the estate, the court’s jurisdiction being exercised on a discretionary basis.


Both these methods can be subject to a number of variations. For example, fixed share systems can be automatic or elective. In the automatic system, claimants are automatically entitled to a fixed share of the estate, as is the position in Scotland and France, for example. In an elective system, on the other hand, claimants have to elect to take their share, i.e. take steps to secure their entitlement.

Fixed share systems are typically to be found in European legal systems under the influence of the concept of legitima portio (‘rightful share’) from Roman Law. Common law systems generally favour discretionary systems, as is the case in English law. Fixed rights systems enable interested parties to know more clearly to what they are entitled. Discretionary systems, on the other hand, are conducive to less certainty, but arguably to a fairer result in some cases.

Activity 6.2In your legal system, would you prefer a fixed rights system or a discretionary system of restricting testamentary freedom?


Self-assessment questions1. What is meant by testamentary freedom?

2. Outline two arguments for not restricting testamentary freedom.

3. What are the two principal types of fixed rights systems in the restriction of testamentary freedom?

SummaryWhether it is right to restrict testamentary freedom is a controversial issue in which a number of arguments can be put for each side of the debate. However, almost all legal systems do restrict testamentary freedom to some extent, whether by a fixed share or a discretionary mode of restriction.

Useful further reading ¢ Tyler, E.L.G. and R G. Oughten Tyler’s Family Provision. (London: Butterworths Law,

1997) [ISBN 0406021279] pp. 35–50


u outline the arguments for and against restricting testamentary freedom, and evaluate their respective merits

u compare the different methods of restricting testamentary freedom.

6.2 Applying under the 1975 Act


¢ Kerridge, Chapter 8: ‘Provision for the deceased’s family and dependants’, pp. 155–158, 170–190.

¢ Cases: Re Watson [1999] 1 FLR 878; Re Callaghan [1984] 3 All ER 790; Bishop v Plumley [1991] 1 All ER 236; Jelley v Iliffe [1981] 2 All ER 29; Re Salmon [1980] All ER 532.


6.2.1 The categories of applicantThe Inheritance (Provision for Family and Dependants) Act 1975 provides that applications may be made for provision out of the deceased’s estate if the deceased died domiciled in England and Wales: s.1(1). The persons entitled to make such applications are the following:

u the wife or husband of the deceased: s.1(1)(a)

u a former wife or former husband of the deceased who has not remarried: s.1(1)(b)

u any person other than a spouse or former spouse, who was living in the same household as the deceased, and as the husband or wife of the deceased, during the whole of the period of two years ending immediately before the date when the deceased died: s.1(1)(ba)

u a child of the deceased: s.1(1)(c)

u any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage: s.1(1)(d)

u any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained either wholly or partly, by the deceased: s.1(1)(e).

The above categories of applicant need more detailed explanation:

Spouse

Note that s.25(4) enables a party to a void marriage to apply in certain circumstances, provided the marriage can be classified as a void marriage under s.25(4): Gandhi v Patel [2002] 1 FLR 603. Also, a party to a polygamous marriage may apply: Re Sehota [1978] 3 All ER 385. In the case of divorce proceedings, a spouse remains married until the decree absolute is pronounced: Bheekhun v Williams [1999] 2 FLR 229.

Former spouse

Check on the definition of former spouse in s.25(1) and remember that a former spouse who remarries cannot apply. For this purpose remarriage includes a marriage which is void or voidable: s.25(5).

Under s 15(1) the court may order that a former spouse should be disentitled from seeking provision under the 1975 Act following the death of their former spouse. The order can be made where the court considers it ‘just to do so’. This phrase was given a restrictive interpretation in Whiting v Whiting [1988] 2 All ER 275, thus undermining the potential usefulness of s.15(1).

Cohabitant

This category was added to the 1975 Act categories by the Law Reform (Succession) Act 1995 following the recommendations of the Law Commission’s Report, No. 187, 1989.

In Re Watson [1999] 1 FLR 878 it was held that the mere absence of sexual relations between a couple did not prevent the court from finding that they had lived together as husband and wife: the court should not ignore ‘the multifarious nature of marital relationships’.

It is now likely that same-sex cohabitants will be able to apply: to bar them would be incompatible with the Human Rights Act 1998. See Mendoza v Ghaidan [2003] 1 FLR 468.

Child

There is no age restriction: all children of the deceased, whatever their age, are entitled to apply, including illegitimate and adopted children, of course. Stepchildren do not qualify under this category, although they may do so under s.1(1)(d) or s.1(1)(e).


Child of the family

Applicants in this category must show that they were treated by the deceased as a child of the family in relation to any marriage to which the deceased was at any time a party.

In Re Callaghan [1984] 3 All ER 790 it was held that there must be evidence of some behaviour of a parental nature by the deceased towards the applicant (typically a stepchild).

In Re Leach [1985] 2 All ER 754 it was held that evidence of such behaviour after the termination of the relevant marriage (see s.1(1)(d) above) could be taken into account.

Dependant

Applicants in this category must show that (1) they were maintained by the deceased, and (2) that this was being done immediately before the death of the deceased.

‘Maintained’ by the deceased

Section 1(3) provides that a person shall be treated as being maintained if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than for full valuable consideration.

The contribution must have been ‘substantial’, which will depend on what the ‘reasonable needs’ of the applicant were. In Grundy v Ottey [2003] WTLR 1253 it was held that the provision of a car for the applicant by the deceased was an insufficient contribution for this purpose. Also, the applicant must show dependency on the deceased, i.e. that the applicant did not give full valuable consideration for what he/she received from the deceased.

In Bishop v Plumley [1991] 1 All ER 236 it was held that the exceptionally devoted care given to the deceased by the applicant did not amount to full valuable consideration, thus enabling the applicant to prove the required dependency under s.1(3). The case decides that things done by the applicant arising from ‘the mutuality of the relationship’ (per Butler-Sloss LJ) do not amount to valuable consideration. This interpretation of s.1(3) effectively widens the range of potential dependants, and was broadly consistent with the earlier decisions in Re Wilkinson [1978] 1 All ER 221 and Jelley v Iliffe [1981] 2 All ER 29.

For further important illustrations of ‘being maintained’ see Rees v Newbery [1998] 1 FLR 1041 where it was held that an applicant, to whom a flat was rented by the deceased at well below the market rate, satisfied s.1(3); and Re B [2000] 1 All ER 665 where a mother was held to be maintained by her brain-damaged daughter – they lived in property purchased for their joint use out of damages awarded to the daughter as the result of medical negligence.

‘Immediately before’ the deceased’s death

A wide view was taken of this phrase in Re Beaumont [1980] 1 All ER 266 where the test was held to be whether there was ‘some settled basis or arrangement’ between the parties regarding maintenance when the deceased died. This approach has been since followed consistently.

Activity 6.3A, a wealthy elderly widow who died recently, employed B as a gardener for the last two years of her life. She paid B the standard rate for gardeners but also allowed him to live rent-free in an outhouse on her large estate. Three months before she died, A’s health deteriorated suddenly. B helped to nurse her until she was taken to hospital just before her death. B is considering whether to apply for financial provision out of A’s estate.

Was B being maintained under s.1(3)?



6.2.2 When must the application be made?According to s.4 of the 1975 Act, an application shall not be made, except with the permission of the court, after the end of the period of six months from the date on which representation with respect to the estate was first taken out.

Representation first taken out

Representation means, in the case of a will, the obtaining of probate, i.e. the official process whereby a will is validated and implemented. In the case of intestacy, the equivalent process is called letters of administration. The six-month period runs from the ‘first’ taking out of representation. This has been interpreted to mean the first valid taking out of representation: Re Freeman [1984] 3 All ER 906.

Permission of the court

The court is given a discretion by s.4 to allow late applications. The main factors which determine how this discretion is exercised were set out in Re Salmon [1980] 3 All ER 532. They include the length of the delay, whether negotiations had started within the six months period, whether the estate has been distributed, and whether the applicant would be left without redress against anyone (solicitors mostly) if permission were refused.

In addition, several later cases emphasised that the more meritorious the claim, the more likely it was that the court would allow a late application: Re Dennis [1981] 2 All ER 140, Stock v Brown [1994] 1 FLR 840 and Re C [1995] 2 FLR 24.

In Re McNulty [2002] WTLR 737 an application that was well over three years late was allowed because the estate had not yet been distributed and no identifiable prejudice would result to the beneficiaries under the will.

Activity 6.4Read the judgment in Re Salmon (above) and summarise the main legal issues in the case and the main points in the decision.


Self-assessment questions1. What condition must a former spouse satisfy in order to be able to apply for

provision?

2. What do applicants have to show in satisfying the court that they were treated as a child of the family?

3. How was the phrase ‘immediately before’ in s.1(3) interpreted in Re Beaumont?

4. What is the time limit for applying under the 1975 Act?

SummarySection 1(1) of the 1975 Act allows six categories of persons to apply under the Act for reasonable provision out of the deceased’s estate. The application must be made within six months of representation to the estate being first taken out, but the court has a discretion to allow out-of-time applications.


u identify the categories of applicants under the 1975 Act, and explain the time limits for making applications.


6.3 The ground of the application

Essential reading: ¢ Borkowski, Chapter 8: ‘Family provision and testamentary freedom’, pp. 274–286.


¢ Cases: Re Besterman [1984] 2 All ER 656; Singer v Isaac [2001] WTLR 1045; Re Coventry [1979] 3 All ER 815; Re Hancock [1998] 2 FLR 346; Re Fullard [1981] 2 All ER 796; Re Adams [2001] WTLR 493.

6.3.1 Reasonable financial provisionSection 1(1) provides that persons may apply under the 1975 Act on the grounds that the disposition of the deceased’s estate effected by their will or intestacy – or a combination of the two – does not make reasonable financial provision for the applicant. The test whether reasonable financial provision has been made is objective. It is not ‘whether the estate stands convicted of reasonableness, but whether the provision in fact made is reasonable’: Re Goodwin [1968] 3 All ER 12.

In Re Robinson [2001] WTLR 267 it was held that sums paid to the applicants by way of damages following a car accident in which the deceased died could not be taken into account in deciding whether reasonable provision had been made for them: it is only the provision under the will or intestacy that is relevant.

The test of whether reasonable provision has been made differs according to the category of applicant. There are two standards of provision – the surviving spouse standard and, for all other applicants, the maintenance standard.

6.3.2 The surviving spouse standardSection 1(2) (a) provides that, as regards a surviving spouse, ‘reasonable financial provision’ means such financial provision as it would be reasonable in all the circumstances for a husband or wife to receive, whether or not that provision is required for his or her maintenance.

A surviving spouse can thus expect to share in the deceased’s estate. The standard of provision is comparable to that of a spouse on divorce. Indeed, s.3(2) provides that the court shall have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage had been ended by a divorce decree. This is the so-called ‘divorce analogy’. It thus follows that decisions in ancillary relief cases on divorce are suggestive – if not decisive – of what may be decided in a 1975 Act application. The leading matrimonial case, White v White [2000] 2 FLR 781, appears to favour equality of division of assets, at least in ‘big money’ cases. It was applied in a 1975 Act application in Re Adams [2001] WTLR 493.

Application of the divorce analogy may be criticised on the ground that death and divorce are dissimilar modes of termination of marriage. For example, on death there will only be one surviving spouse to claim the assets, unlike the case on divorce. Another problem is that there may be cases where the court cannot estimate what the applicant would have received on divorce, as occurred in Re Grattan [2001] WTLR 1305.

There has also been some inconsistency in the cases as to how much emphasis should be given to the divorce analogy:

u Re Besterman [1984] 2 All ER 656 held that the divorce analogy was ‘a useful cross-check’ but that it was only one of the several factors which the court had to consider.

u Moody v Stephenson [1992] 2 All ER 524 held that the divorce analogy was a starting point as to a spouse’s entitlement under the 1975 Act and that the acceptable minimum provision should correspond ‘as closely as possible’ to the entitlement on divorce.


u Re Krubert [1996] 3 WLR 959, considered the difference in emphasis between the above cases and approved the approach taken in Re Besterman. Re Bunning [1984] 3 All ER 1 is similarly consistent with that approach.

u Singer v Isaac [2001] WTLR 1045 again followed the Besterman/Krubert approach and highlighted the key difference between divorce and death: on divorce, the competition is between the spouses – their assets will have to be split between them, whereas on death the competition is between a surviving spouse and the beneficiaries under the will or intestacy.

Activity 6.5How you would have decided Re Besterman?


6.3.3 The maintenance standardFor all applicants, other than the surviving spouse, reasonable financial provision means ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’: s.1(2)(b).

There is no statutory definition of ‘maintenance’, but the following cases are helpful:

u Re Coventry [1979] 3 All ER 815: ‘It does not mean just enough to enable a person to get by, on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare’ (Goff LJ).

u Re Dennis [1981] 2 All ER 140: ‘...the word “maintenance” connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature’ (Browne-Wilkinson J).

Note that in interpreting ‘maintenance’ the courts have sometimes emphasised the level of provision appropriate to the applicant’s standard of living or ‘station in life’: Re Duranceau [1952] 3 DLR 714. However, this does not necessarily mean that successful applicants under s.1(1)(e) will be awarded the level of maintenance to which they have been accustomed prior to the deceased’s death: Malone v Harrison [1979] 1 WLR 1353; Graham v Murphy [1997] 1 FLR 860.

Although in Re Dennis (above) it was held that ‘maintenance’ could not extend to paying off the applicant’s tax debts, but it could include the payment of certain types of debt, e.g. to enable the applicant to carry on a business. In Re Goodchild [1996] 1 All ER 670 and Espinosa v Bourke [1999] 1 FLR 747 applicants with business debts were successful in obtaining provision. Compare also Re Jennings [1994] 3 All ER 27 and Re Callaghan [1984] 3 All ER 790 on the issue whether ‘maintenance’ includes the payment of a mortgage.

In applying the maintenance standard, the position of children and former spouses needs further consideration.

Children

For some time it was thought that adult children would not succeed unless they could prove a moral obligation on the part of the parent to provide for them, or some special circumstances justifying provision under the Act. In Re Coventry [1979] 2 All ER 408, Oliver J stated that there ‘must’ be established some sort of moral claim by the applicant beyond the mere fact of a blood relationship. The Court of Appeal did not depart from this formulation although, rather unconvincingly, it stressed that Oliver J’s remarks were not to be taken as a general rule. Nevertheless, these remarks were treated as a general rule in subsequent decisions such as Williams v Johns [1988] 2 FLR 475 and Re Jennings [1994] 3 All ER 27.


Re Hancock [1998] 2 FLR CA clarified the position. Adult children do not have to prove a moral obligation or other special circumstance, but ‘if the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as moral obligation’ (Butler-Sloss LJ). This approach was later approved in Espinosa v Bourke [1999] 1 FLR 747 and Robinson v Bird [2003] WTLR 529.

It is clear that although proof of moral obligation or special circumstances is not a prerequisite of a successful application, the chances of success are significantly increased where such proof is forthcoming. For example, illness and inability to earn a living were crucial factors in the successful claims made in Millward v Shenton [1972] 2 All ER 1025 and Re Debenham [1986] 1 FLR 404. Working for a number of years for the parents’ business for minimal or no reward proved sufficient in Re Abram [1996] 2 FLR 379 and Re Pearce [1998] 2 FLR 705. In the latter case, it was also significant that the deceased had repeatedly told the applicant that he would inherit the deceased’s farm. The promise need not be made to the child; thus in Espinosa v Bourke (above) a promise made to the child’s mother was regarded as a decisive factor in the child’s case for financial provision.

Note that in addition to applying under the 1975 Act, a claimant may have a case under the rules of proprietary estoppel as laid down in Re Basham [1987] 1 All ER 405 and other cases.

Former spouses

By definition a former spouse is one whose marriage to the deceased was ended by a decree of divorce or nullity. On termination of the marriage, the court would most likely have made or approved of a division of the spouses’ assets, often on a ‘clean-break’ basis. The court has power under s.15 to bar the survivor from applying under the 1975 Act on the death of the other spouse. Where no such order has been made, the survivor may apply but their chances of success will usually be negligible: Re Fullard [1981] 2 All ER 796. However, the case indicated possible exceptional scenarios where an application might succeed – for example, where there has been a long period of continuing support for the applicant by the deceased, or where death unlocks a substantial capital sum from which it is appropriate for provision to be made. However, the mere accumulation of wealth by the deceased since the dissolution of the marriage is not sufficient, nor is the mere fact that the former spouse is in needy circumstances or in poor health: Barrass v Harding [2001] 1 FLR 138 and Cameron v Treasury Solicitor [1996] 2 FLR 716.

For examples of successful applications by former spouses, see Re Crawford (1983) 4 FLR 273 and Re Farrow [1987] 1 FLR 205.

Activities 6.6–6.86.6 Explain the interpretation given by the courts of ‘maintenance’ in s.1(2) (b)

6.7 Summarise the position of adult children when applying under the 1975 Act.

6.8 Should the maintenance standard apply to children?


Self-assessment questions1. Why is Moody v Stephenson now regarded as a dubious authority?

2. What is the maximum age for applications by children for provision?

3. Give two examples of the type of moral obligation or special circumstances that may strengthen an application by an adult child.

4. In what circumstances might an application by a former spouse succeed?


SummaryThe ground for applying under the 1975 Act is that the will or intestacy (or combination of the two) of the deceased does not make reasonable provision for the applicant. In determining whether such provision was made, two differing standards apply: the surviving spouse standard for applications by spouses, and the maintenance standard for all other applicants including children.

Useful further reading: ¢ Borkowski, A. ‘[1999] Moral obligation and family provision’ 11 CFLQ 305.

¢ Ross, S. [2001] ‘The implications of White v White for Inheritance Act claims’, Fam Law 547.


u describe the grounds on which applications can be made.

u evaluate the prospects of success of potential applicants.

6.4 The powers of the court

Essential reading ¢ Borkowski, Chapter 8: ‘Family provision and testamentary freedom’, pp.

286–294.


6.4.1 Section 2 ordersUnder s.2 of the 1975 Act the court can make a wide range of orders, similar to those available in matrimonial cases. This constitutes the second stage of proceedings under the 1975 Act. In the first stage the court will have considered whether reasonable provision had been made for the applicant by the deceased’s will or intestacy. Obviously the application only proceeds to the second stage if no such provision had been made.

Under s.2 the court can make the following orders:

u s.2(1)(a): periodical payments The court has a discretion as to the length of the order except that an order in favour of a former spouse or a separated spouse automatically ends on their remarriage.

u s.2(1)(b): lump sum orders The court has a discretion as to the amount of the lump sum order. It can order the sum to be paid in instalments.

u s.2(1)(c): transfer of property The court may order the transfer to the applicant of such property comprised in the estate as may be specified.

u s.2(1)(d): settlement of property The court can order a settlement of the deceased’s property for the benefit of the applicant. This is particularly useful where the applicant is a minor.

u s.2(1)(e): acquisition of property The court can order the acquisition of property out of the estate for the applicant’s benefit.

u s.2(1)(f): variation of settlements The court can vary ante-nuptial or post-nuptial settlements made on the parties to a marriage to which the deceased was one of the parties. ‘Settlement’ includes any financial arrangement of a continuing nature providing for spouses in their capacity as spouses.


Note that under s.6 periodical payments orders can be varied – usually because of some material change in circumstances – but that no other orders can be varied. This is an important difference between periodical payments orders and lump sum orders, the two orders most commonly made.

If the court makes a section 2 order, it is obvious that at least one beneficiary under the deceased’s will or intestacy will lose some or all of their benefit. Under s.2(4) the court has a discretion as to how that loss should be apportioned. For an illustration, see Re Preston [1969] 2 All ER 961.

6.4.2 Interim ordersUnder s.5 a court can give immediate financial assistance out of the deceased’s estate to an applicant for a section 2 order, before hearing that application. The order can be made if the applicant is in immediate need of financial assistance and property from the estate is available for this purpose. An interim order was made by the first instance judge in Re Besterman [1984] 2 All ER 656.

6.4.3 Net estateThe court can only make orders under s.2 or s.5 out of the deceased’s ‘net estate’. This phrase is defined by s.25 as consisting of the following categories of property:

u s.25(1)(a): property disposable by will This category includes all property which the deceased has power to dispose of by his will, including property situated abroad.

u s.25(1)(b): general powers of appointment This refers to property over which the deceased held a general power of appointment exercisable other than by will.

u s.25(1)(c): statutory nominations and deathbed gifts Section 25(1)(c) refers to property treated as net estate by s.8 of the 1975 Act, namely property given by statutory nomination – such as assets in certain types of bank – or comprised in a deathbed gift (donatio mortis causa). But it seems that property subject to non-statutory nominations – typically assets in certain types of pension funds – will not be regarded as net estate: Jessop v Jessop [1992] 1 FLR 591.

u s.25(1)(d): joint tenancies This refers to property treated as net estate by s.9. The deceased’s severable share in property held on a joint tenancy may be treated as net estate. This is a potentially radical power allowing the court to act in disregard of the basic principles of joint tenancies under which the surviving joint tenant takes the deceased tenant’s interest by survivorship. To protect the surviving tenant against undue delay in his being possibly divested of his interest, the application for a section 2 order must have been made within six months from the date on which representation to the estate was first taken out. Note that s.9 applies to joint tenancies of ‘any property’: personalty is included, e.g. bank accounts: Re Crawford (1983) 4 FLR 273.

u s.25(1)(e): dispositions or contracts If the deceased made dispositions or contracts with the intention of defeating applications under the 1975 Act, any property passing under such dispositions or contracts is treated as net estate.

Self-assessment questions1. What power does the court have in determining the length of a periodical

payment order?

2. What type of settlement can be varied by the courts when making section 2 orders?

3. Which orders cannot be varied once made?

4. When may the court make an interim order?

5. What does s.9 allow the court to do?


SummaryWhen considering what type of financial provision should be made for the applicant, the court has a wide range of powers, although it most frequently makes periodical payments or lump sum orders. If the applicant is in immediate need of financial assistance, the court can make an interim order. Whatever the order, it can only be made out of the deceased’s net estate.


u outline the powers of the court when making orders.

6.5 Matters to be considered

Essential reading ¢ Borkowski, Chapter 8: ‘Family provision and testamentary freedom’, pp.

294–303.


¢ Cases: Harrington v Gill [1983] 4 FLR 265; Re Jennings [1994] 3 All ER 27; Espinosa v Bourke [1999] 1 FLR 747; Re Clarke [1968] 1 All ER 451.

The court must take into account the matters specified in s.3 in both stages of applications under the 1975 Act. In doing so, the court must take into account the facts known to the court at the date of the hearing: s.3(5). For example, in Re Hancock [1998] 2 FLR 346 the court took into account that the value of the deceased’s land increased dramatically in the lengthy period between his death and the hearing. Note, however, that the court’s duty is to take account of the relevant facts, but once it has done that, the court need not necessarily be influenced by those facts: Rajabally v Rajabally [1987] 2 FLR 390.

The matters to be taken into account are both general and specific.

6.5.1 General mattersSection 3(1) directs the court to have regard to the following matters:

s.3(1)(a): financial resources and needs of the applicant

The court must have regard to the financial resources and needs which the applicant has or is likely to have, in the foreseeable future. Under s.3(6) ‘financial resources’ includes earning capacity, while ‘financial needs’ includes the applicant’s financial obligations and responsibilities. In having regard to ‘needs’ the court will obviously consider the applicant’s accommodation needs as a crucial factor. In Harrington v Gill [1983] 4 FLR 265 it was held that the court would normally be reluctant to make an order which results in an elderly person having to vacate settled accommodation.

There is uncertainty as to the relevance of state aid to the applicant in the form of welfare benefits. In Re Collins [1990] 2 All ER 47 it was held that the mere fact that the applicant received State aid did not preclude consideration of whether reasonable provision had been made for the applicant. However, where the estate is small, the cases show that applicants who receive state aid are very unlikely to succeed. There is also some uncertainty as to whether the expectation of a future inheritance constitutes financial resources in the foreseeable future. Matrimonial cases indicate that this should only be taken into account if the inheritance is likely to materialise in the foreseeable future.


s.3(1)(b): financial resources and needs of any other applicant, and s.3(1)(c): financial resources and needs of any beneficiary

These subsections emphasise that the court cannot determine the applicant’s claim in isolation but must balance the claim against those of other interested parties.

s.3(1)(d): deceased’s obligations and responsibilities

The court must have regard to any obligations and responsibilities which the deceased had towards any applicant or beneficiary. In Re Jennings [1994] 3 All ER 27 it was held that it was only obligations that existed immediately before the deceased’s death that had to be considered.

s.3(1)(e): size and nature of the estate

The courts have long discouraged applications in small estates, mainly because the estate could easily be swallowed up in legal costs: Re Fullard [1981] 2 All ER 766. However, it has never been clear what the dividing line between small estates and other estates is. As for ‘nature’ of the estate, the court must consider the effect that any order would have on the assets of that particular estate. The source of the deceased’s estate may prove especially relevant, as occurred in Re Sivyer [1967] 3 All ER 429 where the bulk of the estate was originally derived from the applicant’s mother.

s.3(1)(f): disability of applicant or beneficiary

The court must consider any physical or mental disability of any applicant or beneficiary. Remember that in cases such as Millward v Shenton [1972] 2 All ER 1025 and Re Debenham [1986] 1 FLR 404 the presence of such a disability was crucial to the success of the application by an adult child.

s.3(1)(g): any other matter

The court must have regard to ‘any other matter’ considered relevant, including the conduct of the applicant or any other person. Conduct includes good conduct as well as bad conduct: Espinosa v Bourke [1999] 1 FLR 747 and Stephanides v Cohen [2002] WTLR 1373.

Testator’s reasons and views

Where the testator expresses reasons for his or her provisions, the court must consider them, but need not be influenced by them, especially where they are spurious: Re Clarke [1968] 1 All ER 451. However, the deceased’s views as to the reasonableness of the will’s provisions were held to be irrelevant in Singer v Isaac [2001] WTLR 1045. As regards the deceased’s wishes expressed outside the will, the position is less clear. Prima facie, such wishes should be regarded as irrelevant since they cannot be more compelling than the wishes expressed in the will (which the court can override in exercise of its powers under the 1975 Act). That appears to have been the view taken in Stephanides v Cohen (above) but in Rees v Newbery [1998] 1 FLR 1041 the deceased’s wishes were taken into account and proved to be a significant factor in the success of the application. The issue was raised later in Robinson v Bird [2002] WTLR 529 but was not clearly settled (there were doubts about the deceased’s capacity to express wishes).

Activity 6.9Read Harrington v Gill [1983] 4 FLR 265 and consider which factors particularly helped the applicant to succeed in that case.



6.5.2 Specific mattersThe court must have regard to a number of specific matters affecting different categories of applicant.

Spouses and former spouses

Section 3(2) provides that the court must take into account:

a. the age of the applicant and the duration of the marriage

b. the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

These factors are identical to those applicable in matrimonial proceedings.

Section 3(2) also provides that in applications by spouses the court shall have regard to what the spouse could have expected to receive on divorce, i.e. the divorce analogy (see 6.3.2).

Cohabitants

Section 3(2a) provides that the court must have regard to:

a. the age of the applicant and the length of the period during which the applicant lived as the husband or wife of the deceased and in the same household as the deceased

b. the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

Children and children of the family

Under s.3(3) ‘the manner in which the applicant was being or in which he might expect to be educated or trained’ must be considered. Further, as regards children of the family, the court must have regard:

a. to whether the deceased has assumed responsibility for the applicant’s maintenance and, if so, the extent, basis and length of time for which that had to be done

b. to whether the deceased knew that the applicant was not his own child

c. to the liability of any other person to maintain the applicant.

Dependants

Under s.3(4) in applications by dependants under s.1(1)(e), the court must consider the extent to which and the basis upon which the deceased assumed responsibility for the applicant’s maintenance, and for what length of time that was done. In Jelley v Iliffe [1981] 2 All ER 29 it was held that the assumption of responsibility could generally be presumed from the fact of maintenance: the applicant did not have to prove any overt acts by the deceased demonstrating the assumption of responsibility.

Activity 6.10A is in needy circumstances. He asks B, his wealthy brother, for a £5,000 loan to which B agrees without specifying a repayment date. Later B hears that A is still struggling financially, so he tells A not to bother repaying the loan. Soon afterwards, B starts sending A £500 a month to help him with his living expenses. A, who had not asked for this, is nevertheless very grateful. After two years of these payments, B suddenly dies.

Consider whether B had assumed responsibility for A’s maintenance.



Self-assessment questions1. Which facts must be taken into account according to s.3(5)?

2. Why are applications for provision from small estates discouraged?

3. What type of conduct can amount to ‘any other matter’ under s.3(1)(g)?

4. What does ‘contribution to the welfare of the family’ include under s.3(2) and s.3(2a)?

SummaryIn both stages of an application under the 1975 Act the court must have regard to a number of general matters as specified in s.3(1). In addition, regard must be had to various specific matters affecting particular categories of applicant as specified in s.3(2)–(4).

Reminder of learning outcomesBy this stage you should be able to:

u identify and illustrate the matters that the court must consider.

6.6 Anti-avoidance provisions



The anti-avoidance provisions prevent the deceased from reducing his/her estate. Thus they make it difficult for persons to avoid the Act. The measures affect dispositions and contracts made by the deceased which were intended to defeat an application under the Act.

6.6.1 DispositionsUnder s.10(2) a donee of a disposition by the deceased may be ordered to provide such money or other property as the court may specify for making provision under the 1975 Act. To make such an order the court must be satisfied:

a. that the disposition was made less than six years before the deceased’s death and with the intention of defeating an application under the Act

b. that full valuable consideration for the disposition was not given

c. that making an order under s.10 would facilitate the making of provision for the applicant.

The courts have interpreted the required intention in a broad manner: there is no need to prove that the deceased knew about the 1975 Act, only that there was an intention to defeat possible claims against the estate: Re Dawkins [1986] 2 FLR 360 and Hanbury v Hanbury [1999] 2 FLR 255. Note that the donee cannot be ordered to provide more than the value of the property received under the disposition.

6.6.2 ContractsWe are concerned here with contracts made by the deceased to leave money or property by will to any person or contracts in which the deceased agreed that money or property would be paid or transferred to any person out of the estate.

The court is given the power by s.11 to direct the donee under the contract to provide such money or property as may be specified if it was transferred to the donee under the contract. Or, if it has not been transferred in accordance with the contract, the court may order payment not to be made. The court, in exercising this power, must


be satisfied of the same criteria as under s.10 (above), i.e. intention, consideration, facilitation. However, there is an important difference from the position regarding dispositions: if valuable consideration was not given as promised, the deceased is presumed to have made the contract with the intention of defeating an application: s.12(2). Note also another important difference: the six year limit does not apply to contracts – there is no time limit for these.

Activity 6.11Consider the possible interpretations of ‘the intention of defeating an application for financial provision under the Act’ and justify the approach taken in the cases on this issue.


Self-assessment questions 1. What are the criteria of which the court must be satisfied in order to exercise its

powers under s.10?

2. When can the court presume that the deceased had an intention to defeat an application under the Act?

SummaryThe 1975 Act inhibits avoidance of its jurisdiction by preventing the deceased from reducing his/her net estate through dispositions or contracts if they were made with the intention of defeating applications under the Act.


u outline the anti-avoidance measures under the Act.

Sample examination questionsQuestion 1 To what extent does the Inheritance (Provision for Family and Dependants) Act 1975 provide a satisfactory means for challenging wills on the ground of failure to make reasonable provision for family members?

Question 2 Jack died eight months ago, having made a valid will shortly before he died in which he left all his considerable estate to his sister, Jill, who had nursed him during his last illness. Jill, aged 60, is a retired schoolteacher who has been living in reasonably comfortable financial circumstances with her husband, Ron. Three months ago Ron won £40,000 on the National Lottery.

Jack’s only other next-of-kin is his son, Dennis, aged 30. Dennis worked for 10 years in Jack’s hardware store at a very low wage thinking that one day he would inherit the business. Jack, who had never encouraged such a belief, sold the business early last year when he fell ill. Dennis has not been able to find any regular employment since. In his will Jack stated that he did not wish to leave Dennis anything because ‘Dennis is quite capable of making his own way in the world and doesn’t need any help from me’.

Jack was formerly married to Linda but they got divorced 10 years ago having been married for some 25 years. Jack had been paying Linda maintenance ever since the divorce. Linda, who is now aged 58, recently met a millionaire, Hank, on a worldwide cruise. They have started to live together in his home after he persuaded her to give up her apartment. A few days ago Linda was involved in a serious skiing accident, the likely consequence of which is that she will be paralysed for the rest of her life.

Advise Dennis and Linda as to their chances of making a successful application under the Inheritance (Provision for Family and Dependants) Act 1975.


Advice on answering the questionsQuestion 1 This question requires a critical evaluation of the operation of the 1975 Act from the perspective of provision for family members. At the outset it is best to consider what is meant by ‘satisfactory means’ and ‘family members’. For example, should parents or collaterals or grandchildren have the right to apply where they do not qualify under other categories (such as dependants)? Obviously you need to discuss the differing standards of provision, i.e. the surviving spouse standard and the maintenance standard. Is it right that the latter should apply to claims by children? Consider also the operation of the time limits and the range of powers available to the court from a critical perspective. And do the anti-avoidance provisions achieve their aims – should, for example, the time limit on dispositions under s.10 be lengthened?

Question 2 This question, typically of problem questions on this topic, requires analysis and discussion of the chances of success of potential applicants under the 1975 Act. It is best to begin by considering the issue of the time limit and the relevance of the size of the estate. Note also that Jill’s circumstances will be relevant under s.3(1)(c) if any application is made. What about her husband’s lottery winnings?

Dennis’s position needs to be discussed in the light of cases such as Re Abram, Re Pearce and Re Hancock which suggest that he is likely to succeed. His age and employment prospects need some comment. And what is the relevance of Jack’s statement in the will?

As for Linda, does she fall within one of the exceptional situations mentioned in Re Fullard? What of her relationship with Hank and her relinquishing her apartment? The consequences of her accident will be a factor in her favour but does it matter that this occurred after Jack’s death?

Contents

Introduction 78

7 1 Types and nature of testamentary gifts 79

7 2 Witnesses: s 15 80

7 3 Divorce and annulment 81

7 4 Lapse 82

7 5 Ademption 83

7 6 Forfeiture 85

7 7 Disclaimer 86

7 8 Uncertainty 87

7 Entitlement


Introduction

This topic deals with the different types of testamentary gifts and, in particular, the various grounds on which such gifts may fail, thus depriving the potential beneficiary of his or her entitlement. Some of the grounds for failure are entirely judge-made, as for example in the case of disclaimer and ademption,† while others – such as forfeiture or witnessing a will – have some statutory basis.

A gift may fail for various reasons. It fails through lapse if the beneficiary predeceases the testator, or through ademption where the property given has been destroyed, disposed of or substantially altered prior to the testator’s death. It fails under s.15 of the Wills Act 1837 if the beneficiary witnessed the will. A gift will be forfeited if the beneficiary has killed the testator (or intestate) unlawfully, although the courts have the discretion to modify the application of the rule in certain circumstances.

A gift may also fail through disclaimer: the law does not force beneficiaries to take gifts against their wishes. A will may fail because its provisions lack certainty as to who is to benefit, or what property is comprised in the gift. The case law on this topic is very interesting, especially in the case of forfeiture.


u list the different types of testamentary gifts and explain their nature

u apply s.15 Wills Act 1837 to gifts made to witnesses

u explain the effect of divorce or annulment on testamentary gifts made to former spouses

u state the rules of the doctrine of lapse

u explain and apply the rules of ademption

u indicate when forfeiture applies and discuss its consequences

u explain how gifts can be disclaimed

u indicate the circumstances in which gifts may fail for uncertainty.

† Ademption: The removal of a legacy from a will, because the item concerned no longer exists.

Succession 7 Entitlement page 79

7.1 Types and nature of testamentary gifts

Essential reading ¢ Borkowski, Chapter 7: ‘Entitlement’, pp. 212–217.

¢ Kerridge, Chapter 9: ‘The contents of a will’, pp. 217–224.


7.1.1 Specific giftsThe classic definition, in Robertson v Broadbent [1883] 8 App. Cas 812, is that a specific legacy is something which a testator – identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state and condition indicated by that description – separates from the general mass of his personal estate in favour of a particular legatee. Thus a gift of ‘all my stock in the Midland Railway Company’ is a specific gift: Bothamley v Sherson [1875] LR 20 Eq 304. Typically, the use of the word ‘my’ normally indicates a specific gift.

Specific gifts are subject to ademption (see section 7.5) but abate after general gifts (abatement is the process whereby the assets of the estate are used in the payment of the testator’s debts).

7.1.2 General giftsIn Bothamley v Sherson it was said that ‘a general bequest may or may not be part of the testator’s property...it being only supposed that the testator has sufficient property which on being realised will procure for the legatee that which is given to him...’ Thus a gift of ‘£1,000 worth of stock in the Midland Railway Company’ would be a general gift. If the testator did not have such stock when he or she died, it would be purchased from funds in the estate.

General gifts abate before specific gifts but are not subject to ademption. If there is doubt as to the proper classification of the gift, the court leans in favour of it being a general gift: Re Rose [1949] Ch 78.

7.1.3 Demonstrative giftsA demonstrative gift is one which is ‘in its nature a general legacy, but where a particular fund is pointed out to satisfy it’: Ashburner v Macguire [1786] 2 Bro CC 108. Thus a gift of £3,000 payable ‘out of the share of my capital and loans’ in the testator’s share of his family’s business is a demonstrative legacy. Such legacies are not subject to ademption: they are to be satisfied primarily from the specified fund, but if that fund is insufficient or ceases to exist, the deficit is to be made up from the general estate.

7.1.4 Other giftsPecuniary gifts are bequests of money which may be specific, general or demonstrative. Residuary gifts are gifts of the testator’s property remaining after payment of debts and legacies. In practice they are often the most sizeable gift, typically left to the testator’s spouse or children. Note that devises† may be specific, general, residuary and (possibly) demonstrative.

7.1.5 Failure of giftsThe general rule is that a failed gift falls into residue. If the gift is itself a residuary gift, or if there is no residuary gift, the property passes on intestacy. These rules are subject to any contrary intention expressed by the testator: Re Fraser [1904] 1 Ch 726.

† Devises: gifts of freehold land in a will.


Activity 7.1Consider whether it is better for a beneficiary to be entitled to a general gift or a specific gift.


Self-assessment questions1. What is meant by abatement?

2. How would you describe a demonstrative legacy (make up your own example)?

SummaryThe main classification of gifts is: specific, general and demonstrative. A specific gift relates to a separate part of the testator’s estate whereas a general gift does not. A demonstrative gift is a hybrid between the two. Specific gifts adeem, unlike general gifts, but abate after general gifts. If a gift fails, it normally passes into residue, but will pass on intestacy if there was no residuary gift or if the failed gift is itself a residuary gift.


u list the different types of testamentary gifts and explain their nature.

7.2 Witnesses: s.15


¢ Kerridge, Chapter 14: ‘Failure of gift by will or of interest on intestacy’, pp. 298–301.

If a person witnesses a will to whom or to whose spouse any beneficial interest is given by will, that gift is ‘utterly null and void’ but the witness is regarded as a valid witness: s.15 Wills Act 1837. The rule is aimed at protecting the testator by reducing the potential for fraud and undue influence. A gift caught by s.15 falls into residue.

Application of the rule has the drastic consequence that the witness cannot take any benefit, even if that witness was unaware that he or his spouse was a beneficiary under the will (and was thus not acting improperly). Not surprisingly, the courts have qualified the operation of the rule in various ways:

u s.15 does not apply to gifts made to fiancés or fiancées of the witness: Thorpe v Bestwick [1881] 6 QBD 311

u s.15 does not apply to gifts to witnesses in the capacity of a trustee: Re Ray’s WT [1936] 2 All ER 93

u s.15 does not apply to gifts to witnesses taking under a secret trust rather than under the will itself: Re Young [1951] Ch 344

u s.15 does not apply to gifts made to superfluous witnesses: s.1 Wills Act 1968

u s.15 does not apply to charging clauses in wills: thus executors who witness a will may nevertheless benefit under a charging clause: s.28 Trustee Act 2000

u s.15 does not apply, where a will is followed by a subsequent will or codicil, if the beneficiary can take under an instrument that he did not witness even though he witnessed the other(s): Re Trotter [1899] 1 Ch 764

u s.15 does not apply if the beneficiary signed the will in some capacity other than a witness: Kitcat v King [1930] P 266.


Activity 7.2T executes a will in 2002 witnessed by A and B to whom he leaves legacies in the will. In 2003 he revokes that will. In 2004 he makes a will which revives the will of 2002. The 2004 will is witnessed by C and D. Can A and B take under the 2002 will?


SummaryThe general rule is that a witness to a will to whom a beneficial gift is made in the will cannot take the gift but is regarded as a valid witness. Note that the rule is not that ‘a beneficiary cannot witness a will’, an erroneous statement that frequently appears in exam scripts.


u apply s.15 Wills Act 1837 to gifts made to witnesses.

Useful further reading: ¢ Yale, D. (1984) ‘Witnessing wills and losing legacies’, 100 LQR 453.

7.3 Divorce and annulment

Essential reading: ¢ Borkowski, Chapter 7: ‘Entitlement’, pp. 223–226.

¢ Kerridge, Chapter: 14: ‘Failure of gift’, pp. 311–314.

Section 18A(1) Wills Act 1837 (as amended) provides that where a testator’s marriage ends in divorce or annulment, any property given to the former spouse in the testator’s will shall pass as if the former spouse had died on the day of the divorce or annulment (in effect, as if the former spouse had predeceased the testator). Also, any provisions appointing the former spouse as executor or trustee or conferring on them a power of appointment shall take effect as if the former spouse had died on that date.

The aim of this provision was to recognise that the termination of the testator’s marriage will almost certainly alter his priorities as expressed in his will. It was enacted by the Law Reform (Succession) Act 1995 and applies to testators dying after 1995. Under the previous legislation – s.18(2) Administration of Justice Act 1982 – the effect of divorce or annulment was that the gift to the former spouse was deemed to ‘lapse’. In Re Sinclair [1985] 1 All ER 1066 it was held that ‘lapse’ meant ‘fail’ rather than ‘predecease’. This interpretation resulted in an unfortunate decision on the facts and led the Law Commission to recommend legislative amendment (The Effect of Divorce on Wills, Law Com. No. 217, 1993). The new s.18A(1) enacts the recommendations by treating the former spouse as having predeceased the testator. This accords broadly with the decision in Re Cherrington [1984] 2 All ER 285, which had been overruled by Re Sinclair. Note, however, that s.18A(1) deems the former spouse to have predeceased the testator on the day on which the marriage was dissolved or annulled, i.e. when the decree is made absolute.

Self-assessment questions1. In what way did Re Sinclair overrule Re Cherrington?

2. What is the effect of a divorce decree on a provision in the will of the testator conferring a power of appointment on his former spouse?

SummaryIf a marriage terminates in divorce or annulment, gifts to the former spouse made in wills executed before the termination of the marriage shall pass as if the former spouse had died on the date of the decree absolute.



u explain the effect of divorce and annulment on testamentary gifts made to former spouses.

Useful further reading ¢ Kerridge, R. [1995] Conv 12.

7.4 Lapse


¢ Kerridge, Chapter 14: ‘Failure of gift’, pp. 301–310.

¢ Case: Hickman v Peacey [1945] AC 304.

7.4.1 The basic rulesA gift to a beneficiary in a will lapses if the beneficiary predeceases the testator. The usual consequences follow: the property falls into residue or passes on intestacy. However, in practice a will frequently contains a substitutional gift in the event of failure through lapse, for example appointing a substitute beneficiary.

As a general rule, lapse does not apply to charitable gifts, class gifts or gifts to joint tenants. Each of these types of gift has its own particular regime of rules. Thus if a member of a class predeceases the testator, his or her share simply accrues to the surviving members of the class.

Where a gift was made to a beneficiary in pursuance of a moral obligation, recognised by the testator, and the beneficiary predeceases the testator, the property passes to the beneficiary’s estate: Stevens v King [1904] 2 Ch 30. This is an exception to the general rule, but applies only if the obligation still existed at the testator’s death and the testator intended to discharge it: Re Leach’s WT [1948] 1 All ER 383.

7.4.2 Section 33 Wills Act 1837Section 33 is the major exception to the basic rules on lapse. It provides that if a will makes a gift to a child or remoter descendant of the testator, and the intended beneficiary predeceases the testator, leaving issue living at the testator’s death, the gift passes to the issue living at the testator’s death. Thus it does not fall into residue or pass on intestacy. However, s.33 is subject to any contrary intention appearing in the will. Note also that if the predeceasing beneficiary was a member of a class to whom a class gift had been made, the gift takes effect as if the class included the issue of its deceased member, subject to a contrary intention in the will: s.33(2). In Ling v Ling [2002] WTLR 553 it was held that whether the will had been professionally drafted was irrelevant in demonstrating a contrary intention, as was the question of the degree of contact that the testator had maintained with his grandson (who stood to take via s.33).

7.4.3 Section 184 Law of Property Act 1925Section 184 deals inter alia with the problem caused by uncertainty as to whether a beneficiary survived the testator. It provides that where two or more persons have died in circumstances rendering it ‘uncertain’ which of them survived the other or others, their deaths will be presumed to have occurred in order of seniority, i.e. the younger will be deemed to have survived the elder.


Hickman v Peacey [1945] AC 304 is the leading case on the interpretation of ‘uncertain’ in s.184. It was held that even if it could be inferred that deaths occurred simultaneously, that would not remove uncertainty as to survivorship. However, it is not clear from the case what degree of proof of survivorship is required for the presumption not to operate. The view of Lord Macmillan, who gave the leading majority judgment, is that proof beyond reasonable doubt is required, but that is considered dubious: se Re Bate [1947] 2 All ER 418.

Note that in the case of intestacy, surviving spouses cannot take unless they survive the deceased for 28 days: s.46(2A) AEA 1925.

Activities 7.3–7.47.3 List the exceptions to the doctrine of lapse.

7.4 Read Hickman v Peacey and consider what the consequences would have been, as regards the operation of s.184, if the decision had gone the other way.


Self-assessment questions1. What is the effect of s.33 on class gifts?

2. What must be proved to save a gift from lapse on the ground that the predeceasing beneficiary was owed a moral obligation by the testator?

SummaryA gift to a beneficiary lapses if the beneficiary predeceases the testator. The major exception is where s.33 Wills Act 1837 applies. In situations where it is uncertain whether a beneficiary predeceased the testator, the younger will be deemed to have survived the elder: s.184 LPA 1925.


u state the rules of the doctrine of lapse.

7.5 Ademption



¢ Cases: Re Slater [1907] 1 Ch 665; Re Carrington [1932] 1 Ch 1.

7.5.1 The basic rulesA gift fails through ademption if the subject matter of the gift ceases to be part of the testator’s estate by the date of his death: for example, where it has been disposed of or sold by the testator. Only specific gifts are subject to ademption (see 7.1.1 and 7.1.2). Where it is unclear whether the property was adeemed before the testator died, it seems that the gift will adeem if the property cannot be shown to have survived the testator: Durrant v Friend [1852] 5 DeG and s.343. There is some authority that a gift will not usually be adeemed if the property was disposed of without the testator’s knowledge or consent: Jenkins v Jones [1866] LR 2 Eq 323. See also Re Viertel [2003] WTLR 1075


7.5.2 Change in propertyWhere the subject-matter of the gift undergoes change before the testator’s death, it may not be clear whether the gift has been adeemed or, if it has, when this occurred. In Oakes v Oakes [1852] 9 Hare 666 it was said: ‘The question is whether a testator has at the time of his death the same thing existing – it may be in a different shape – yet substantially the same thing’. The leading illustration of the application of this test was Re Slater [1907] 1 Ch 665 where it was phrased as follows: ‘Where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing.’

This test is particularly appropriate in cases of company takeovers or mergers but is also of general application: see, for example, Re Dorman [1994] 1 All ER 804 where it was applied in a case of change of bank accounts.

7.5.3 Contracts and optionsWhere a testator contracts to sell property of which he had previously made a gift in his will, the gift is adeemed. If the testator dies before completion, the beneficiary of the gift is entitled to enjoy the property, and any profits accruing, from the time of the testator’s death until completion: Watts v Watts [1873] LR 17 Eq 217. But if the will was made after the contract, the beneficiary is entitled to the proceeds of the contract: Re Calow [1928] Ch 710.

In Lawes v Bennett [1785] 1 Cox 167 it was held that if an option is granted by a testator in his lifetime to buy property comprised in a specified gift in a will, the exercise of the option after the testator’s death adeems the gift. The rule has been much criticised but has been followed by the Court of Appeal: Re Carrington [1932] 1 Ch 1. Note that even though the gift is adeemed, the beneficiary is entitled in the interim to enjoy the property and take any profits, i.e. from the testator’s death to the exercise of the option. If the will is made after the grant of the option, there is no ademption. Thus the beneficiary takes the purchase price when the option is exercised. See also Re Sweeting [1988] 1 All ER 1016 where it was held that the rule in Lawes v Bennett applies to conditional contracts.

Activities 7.5–7.67.5 T leaves ‘all my shares in X Co’, a small family company manufacturing teddy

bears, to his son, Alan. Later, X Co is bought by Big Fish Ltd, a huge international company which deals in many diverse products. T is issued with shares in Big Fish Ltd to the equivalent value. Who is entitled to the shares in Big Fish Ltd when T dies?

7.6 Why might the rule in Lawes v Bennett be considered to be dubious?


Self-assessment questions1. Name at least one case in which the rule in Lawes v Bennett has been followed.

2. To what type of gifts does ademption apply?

SummarySpecific gifts are adeemed if the subject matter of the gift ceases to be part of the testator’s estate by the date of his death. If the property subject to the gift undergoes change, it will adeem if it ceases to be ‘substantially the same thing’ as that given by the testator.


u explain and apply the rules of ademption.


7.6 Forfeiture



¢ Cases: Jones v Roberts [1995] 2 FLR 422; Re K [1985] Ch 85; Dunbar v Plant [1998] Ch 442.

7.6.1 The basic rulesJones v Roberts [1995] 2 FLR 422 contains a clear statement of the forfeiture rule: ‘there is a long-standing and well-established rule of public policy....which precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing’.

The forfeiture rule applies to murder, manslaughter and aiding suicide, but it is not clear whether it applies to other forms of unlawful killing. There is also some doubt whether all forms of manslaughter are subject to the rule (possibly ‘motor manslaughter’ is not). However, the courts have emphasised that the application of the rule does not depend on the moral blameworthiness of the offender: see in particular Re Giles [1971] 3 All ER 1141, Re Royse [1984] 3 All ER 339, Re K [1985] Ch 85 and Jones v Roberts. There are cases to the contrary – notably Gray v Barr [1971] 2 QB 554 and Re H [1990] 1 FLR 441 – but they are against the weight of authority. It is clear, however, that the forfeiture rule does not apply to a person found not guilty by reason of insanity: Re Houghton [1915] 2 Ch 173.

It appears that for the rule to apply it is not necessary that the offender should have been convicted. It will suffice if the issue of whether the deceased was unlawfully killed is decided in the civil court on a balance of probabilities, although cogent evidence will be required: Re Dellow’s WT [1964] 1 All ER 771.

7.6.2 The effect of forfeitureThe forfeiture rule prevents the offender or his estate from benefiting under the victim’s will or intestacy. The forfeited gift falls into residue or passes on intestacy, as per the normal rule, but the offender is of course disqualified from taking under any resulting intestacy: see Re Sigsworth [1935] Ch 89 and Re Callaway [1956] Ch 559. Note also that a person cannot benefit from the victim’s estate if his title is dependent on that of the offender: In the Estate of Crippen [1911] P 108. And in Re DWS (see Chapter 2) it was held that where a son murdered his intestate parents, he could not be regarded as having ‘predeceased’ the intestate, by reason of the forfeiture, for the purposes of s.47(1) AEA 1925. Therefore the offender’s son was unable to take the interest that his father would otherwise have taken.

7.6.3 Forfeiture Act 1982This Act gives the court a discretion to ‘modify’ the application of the forfeiture rule except where the offender stands convicted of murder. Under s.2(2) the test is whether, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to be material, the ‘justice of the case’ requires the effect of the rule to be modified.

It is now clear that the discretion to modify the effect of the forfeiture rule includes granting total relief from its application:

u Re K: battered wife, convicted of manslaughter for killing her husband; held that it would be unjust to deprive her of any of the benefits accruing from the husband’s will or through joint tenancy of the matrimonial home.

u Dunbar v Plant: suicide pact between young engaged couple; woman survived but was found to have killed the man unlawfully by aiding and abetting his suicide; nevertheless full relief was given to her.


In Re Murphy [2003] WTLR 687 an application to modify was rejected in a case of diminished responsibility manslaughter, because of the claimant’s moral culpability in killing his homosexual partner.

Note that the power to modify applies not only to any beneficial interest under the victim’s will or intestacy, but also to interests arising from joint tenancy, nomination, deathbed gift, or trust: s.2(4) and see Re S [1996] 1 FLR 910. However, where the offender has been convicted of unlawful killing, proceedings to modify must be brought within three months of the conviction: s.2(3).

Activities 7.7–7.87.7 Why was the effect of the forfeiture rule modified in Re K but not in Jones v

Roberts?

7.8 Explain the meaning of ‘modify’ in the Forfeiture Act 1982.


Self assessment questions1. Does the forfeiture rule apply to all types of manslaughter?

2. When must proceedings for modification be brought?

SummaryA person who unlawfully kills the deceased forfeits any interest under the deceased’s will or intestacy. However, the court can modify the application of the forfeiture rule where ‘the justice of the case’ requires it, except in the case of murder.


u indicate when forfeiture applies and discuss its consequences.

Useful further reading ¢ Youdan, T. (1973) ‘Acquisition of property by killing’ 89 LWR 235.

¢ Cretney, S. (1990) ‘The Forfeiture Act 1982’ Oxford J Legal Studies 298.

7.7 Disclaimer



The general rule is that a beneficiary under a will or intestacy may disclaim his interest: Townson v Tickell [1819] 3 B&A 31 where it was said that ‘The law certainly is not so absurd as to force a man to take an estate against his will’. The disclaimed interest will then fall into residue or pass on intestacy in accordance with the normal rules. If entitlement under intestacy is disclaimed, the interest passes to other next-of-kin in the same class or, if none, to the next class entitled: Re Scott [1975] 2 All ER 1033.

Disclaimer of a gift may result from the beneficiary’s reluctance to take property of a wasting or hazardous nature. Most often it occurs as part of an agreed variation of the distribution of the estate, usually in order to avoid inheritance tax.

Disclaimer is usually made by deed or in writing, but an oral disclaimer suffices. Disclaimer may also be implied from conduct. A disclaimer can be retracted only if no one has altered his position in reliance on it: Re Cranstoun [1949] Ch 253. Disclaimer is not possible if the beneficiary had unequivocally accepted the gift: Re Hodge [1940] Ch 260. For a disclaimer to be effective, the beneficiary must have an interest to disclaim


at the time of the disclaimer: Smith v Smith [2001] 3 All ER 552. If property is given as one mass or aggregate thing, but consists of more than one asset, the beneficiary must take the whole gift or nothing: Guthrie v Walrond [1883] 22 Ch 3 573.

SummaryA beneficiary may disclaim a gift under a will or an interest under intestacy. A disclaimer cannot be made if the beneficiary has unequivocally accepted the gift. A disclaimer cannot be retracted once anyone has altered their position in reliance on it.


u explain how gifts can be disclaimed.

7.8 Uncertainty



A testamentary gift fails, with the usual consequences, if it is impossible to ascertain the subject matter of the gift or who are the intended beneficiaries. A recent example of uncertainty as to subject matter is Anthony v Donges [1998] 2 FLR 775 where a provision that the testator’s wife should receive ‘such minimal part’ of his estate ‘as she might be entitled to receive under English law for maintenance purposes’ was held to be void for uncertainty. The courts will strive to find to find sufficient certainty in the provisions of the will: for example, in Re Knapton [1941] Ch 423 the gift was saved by the court’s decision that the beneficiaries should draw lots if they could not agree who took what. Where the testator includes the word ‘reasonable’ in describing the subject matter, this may enable the court to find sufficient certainty, as in Re Golay [1965] 2 All ER 660 (‘reasonable income’).

For a classic illustration of uncertainty of objects see Re Stephenson [1897] Ch 75. In Re Barlow’s WT [1979] 1 All ER 296, the terms ‘family’ and ‘friends’ were held to be sufficiently certain. If a testator delegates to others the choice of beneficiaries under his will, it seems that the gift is not void for uncertainty: Re Beatty’s WT [1993] 3 All ER 844.

If a gift has been made subject to a condition, and the condition is uncertain, the gift may fail. Everything depends on the type of condition. If it is a condition precedent – one which has to be satisfied for the beneficiary to take the gift – then if the condition is uncertain, the gift fails (since the beneficiary is unable to satisfy it). But if a condition subsequent is uncertain, the condition fails and the beneficiary retains the gift. A condition subsequent is one which defines the circumstances in which the beneficiary will be divested of a gift which he has already taken. Conditions subsequent have potentially more drastic consequences – the divesting of the beneficiary – they must be expressed with greater certainty than conditions precedent. The difference is clearly illustrated in Re Abrahams WT [1969] 1 Ch 463 where the will provided that the beneficiary would be divested of gift if he married ‘a person who shall not profess the Jewish faith’ but that he could take an additional gift if he married ‘a person professing the Jewish faith’. It was held that the condition precedent was sufficiently certain but the condition subsequent was not. See also Re Allen [1953] Ch 810 and Re Mills WT [1967] 2 All ER 193, both of which were concerned with conditions specifying being ‘a member of the Church of England’.

Note also Nathan v Leonard [2003] 4 All ER 198 for an illustration of uncertainty as to a condition concerning the application of the Inheritance Act 1975.


Activities 7.9–7.11 7.9 What must a person do in order to disclaim a gift under a will or intestacy?

7.10 What is the distinction between ‘condition precedent’ and ‘condition subsequent’?

7.11 T makes a will leaving a gift to X providing that X marries ‘a Roman Catholic’. X marries Jane who was brought up as a Catholic, but no longer attends services regularly because she disagrees with the Church’s teaching on abortion. Can X take the gift?


Self-assessment questions 1. Who is entitled to take if an interest under intestacy is disclaimed?

2. What was unusual about the decision in Re Knapton?

SummaryA gift fails if the testator’s description of the subject matter or objects of the gift is too uncertain. As regards conditions, a beneficiary under a condition precedent must show that the condition is sufficiently certain, and that it has been satisfied in order for him to take. Conditions subsequent require a greater degree of certainty to be valid. If they fail through uncertainty, the beneficiary retains the gift.

Reminder of learning outcomesBy this stage you should be able to:

u indicate the circumstances in which gifts may fail for uncertainty.

Sample examination questionsQuestion 1 To what extent are the following statements accurate?

a. If a beneficiary disclaims a gift under a will, the disclaimer cannot be retracted if it has been acted upon by the executors.

b. Section 2 of the Forfeiture Act 1982 enables a person who has killed the testator to inherit part of his estate.

c. The effect of a divorce decree is that any gift to a spouse in a will made before the decree is deemed to lapse.

d. Hickman v Peacey [1945] AC 304 decided that s.184 of the Law of Property Act 1925 would apply unless order of survivorship was proved on a balance of probabilities.

Question 2 Three months ago Ron went on a coach holiday abroad with four close friends, Jack, Alan, Bill and Derek. The coach overturned on a steep bend in the Alps. Ron survived but all his friends were killed. It transpires that all made a gift to Ron in their respective wills:

a. Jack left his London home to Molly for life, and thereafter to Ron. Molly was Jack’s wife when he made the will but they were divorced a few months before the fatal coach accident. Molly has since remarried.

b. Alan left his vintage sports car, ‘Red Streaker’, to Ron. When Alan’s executors informed him of this, Ron told them that he really did not want the car as he could not drive. The executors then allowed Alan’s son, Nigel, to use the car and enter it for a vintage car rally. Ron has now changed his mind: he has started driving lessons and would like to have ‘Red Streaker’ after all.


c. Bill left a legacy of £5,000 to Ron. Bill’s will was witnessed by Ron’s wife, Ethel, and by Bill’s neighbours, Arthur and Mavis. In his will Bill left £500 to Arthur ‘for the purposes of the Clifton Chess Club’. Bill was a keen member of the club and Arthur is its president. When the will was executed, neither Ron nor Ethel had any idea that Ron was a beneficiary under it.

d. Derek left Ron ‘my deposit account in Barclay’s Bank, Notting Hill, London.’ Several months after Derek executed his will he moved to Manchester. He closed the deposit account in Barclay’s Bank, Notting Hill and used the proceeds to open a current account in a branch of the Natwest bank in Manchester.

Advise Ron.

Advice on answering the questionsQuestion 1 This type of question is sometimes set to test your knowledge and understanding of certain specific points or issues. The emphasis is on precision and accuracy.

a. The retraction rule was stated too narrowly. In what respect?

b. The statement is accurate but requires qualification as to the circumstances of the deceased’s death and the power of the court to modify the forfeiture rule.

c. The statement is inaccurate since it is not what s.18A(1) Wills Act 1837 states but uses terminology from the previous legislation.

d. Consider whether this statement can be justified in the light of the respective judgments in the case. It reflects what Lord Macmillan said but...

Question 2 This is a typical problem on entitlement involving consideration of various grounds on which gifts may fail.

a. Apply s.18A Wills Act 1837: what is the effect of the divorce? Is Molly’s marriage relevant?

b. This concerns the retraction of a disclaimer: can it be retracted given that Nigel has entered the car for a rally? Apply Re Cranstoun.

c. Consider how s.15 Wills Act 1837 applies to these facts. Is Ron’s wife a superfluous witness? Is the gift to Arthur a beneficial gift?

d. Was the gift adeemed by the closure of the deposit account? Apply Re Slater: is the new account ‘substantially the same thing’ as the previous one? Consider also Re Dorman.


Notes

Contents

Introduction 92

8 1 Privileged wills 93

8 2 Statutory wills 94

8 3 Mutual wills 95

8 4 Conditional wills 97

8 5 Nominations 98

8 6 Donatio mortis causa 99

8 Alternative succession


Introduction

Although a will made in accordance with s.9 of the Wills Act 1837 is the usual method of disposing of property on death, there are other or alternative forms of succession which may apply in some circumstances. Soldiers on active military service and seamen at sea are entitled to make wills which do not need to satisfy the s.9 formalities – hence they are described as privileged wills. For persons who are patients under the Mental Health Act 1983, the court can make a statutory will containing the sort of provisions which that person might have been expected to make.

Then there are wills which are made according to the standard formalities but which have unusual consequences. In the case of mutual wills – a type of joint will usually made by spouses – the testators agree not to revoke their wills in the future. Conditional wills, on the other hand, are simply wills which only come into effect when the condition specified by the testator has been satisfied.

In this chapter you will also study methods of disposition of property on death not involving a will of any sort, namely nomination and donatio mortis causa (gift made in contemplation of death). The latter is a particularly interesting area of the law with a rich and vivid case law. Note that the subject matter of this chapter is described in the Regulations as ‘Special wills’.

Learning outcomes By the end of this chapter and the relevant reading, you should be able to:

u explain the operation of privileged wills

u indicate when and how statutory wills may be made

u explain the mutual wills doctrine

u indicate the circumstances where conditional wills operate

u outline the basic rules applying to nominations

u state the rules of donatio mortis causa.

Succession 8 Alternative succession page 93

8.1 Privileged wills

Essential reading ¢ Borkowski, Chapter 9: ‘Alternative succession’, pp. 307–314.


¢ Cases: Re Wingham [1949] P 187; Re Jones [1981] 1 All ER 1; Re Rapley’s Estate [1983] 3 All ER 248.

Read these materials now.

Some persons are allowed by reason of their occupation to make wills that need not satisfy the formalities required by s.9 Wills Act 1837. This may be justified on the grounds that these occupations may seriously reduce the opportunity for making a properly executed will.

Such privileged wills can be made without any formalities. There is no need for writing, signatures or even witnesses, although the court needs to be satisfied that the will was made, i.e. that the testator communicated his wishes as to the disposition of his property on his death. Since witnesses are not required (in theory), it follows that a witness to a privileged will can take a benefit under it: Re Limond [1915] 2 Ch 240. Once made, a privileged will has the consequences of a ‘normal’ will. Thus it revokes all prior wills and can itself be revoked by the methods specified in ss.18 and 20 Wills Act 1837. Also, a privileged testator can revoke any prior will by an informal writing declaring an intention to revoke: see In the Estate of Gossage [1921] P 194.

The privilege applies to soldiers in actual military service and seamen at sea (even if they are under 18).

8.1.1 Soldiers in actual military service Section 11 Wills Act 1837 provides that a privileged will may be made by ‘any soldier being in actual military service’. The courts have interpreted ‘soldier’ widely to include non-combatants in a variety of supporting roles, such as nurses, doctors, chaplains: In the Estate of Rowson [1944] 2 All ER 36.

The soldier must have been in actual military service when the privileged will was made. The leading case is Re Wingham where it was stated by Buckerill LJ that the test was whether the testator was on military service which was ‘directly concerned with operations in a war which is or has been in progress or is imminent’. Whether the testator was in danger from enemy action was held not to be the test. Denning LJ thought that in cases of doubt the soldier should be given the benefit of the doubt. Despite the references to ‘war’ in Re Wingham, it is clear that the privilege extends to soldiers on counter-terrorist or similar activities. In Re Jones it was held that whether a soldier was in actual military service depended on the nature of the activities of the deceased and the unit to which he or she was attached: the fact that a state of war did not exist or that the enemy was not a uniformed force engaged in regular warfare was irrelevant.

8.1.2 Seamen at sea Section 11 Wills Act 1837 allows ‘any mariner or seaman being at sea’ to make a privileged will. This phrase includes civilians serving in the merchant navy, such as a barman on a liner: Re Knibbs [1962] 2 All ER 829.

The term ‘at sea’ has been widely construed to include service on lakes, rivers and canals. It is also possible to satisfy the requirement even though the seaman actually made the will on land: Re Newland’s Estate [1952] 1 All ER 841. Compare that case to Re Rapley’s Estate where it was emphasised that a will made by a seaman on land would be privileged only if the seaman was under orders to go to sea.


Activities 8.1–8.2 8.1 Consider whether the privilege to make an informal will should be retained.

8.2 T volunteers to join a rebel force fighting to overthrow the government of a South American republic. While flying there, he writes out an informal will. The plane crashes, however, and all on board are killed. Was T entitled to make a privileged will?


Self-assessment questions 1. Does s.15 Wills Act 1837 apply to beneficiaries under privileged wills?

2. Which case decided that a barman on a liner was a ‘seaman’?

Summary A privileged will can be made by a soldier on actual military service and by a seaman at sea. The courts have applied the privilege generously by giving a wide interpretation to phrases such as ‘actual military service’ and ‘at sea’. A privileged will may be made informally without satisfying the requirements of s.9 Wills Act 1837.

Reminder of learning outcomes By this stage, you should be able to:

u explain the operation of privileged wills.

Useful further reading ¢ P. Critchley (1999) ‘Privileged wills and testamentary formalities: a time to die?’

58 CLJ 49.

¢ G. Cole (1982) ‘How active is active military service?’ Conv 184.

8.2 Statutory wills


¢ Kerridge, Chapter 5: ‘The making of wills’, pp. 66–68.

¢ Cases: Re D (J) [1982] 2 All ER 37; Re C (a patient) [1991] 3 All ER 866.

A statutory will is one that is executed on behalf of a mental patient under s.96 Mental Health Act 1983. Such a will can be authorised by the Court of Protection if it has reason to believe that the patient is incapable of making a valid will. The Court need not inform the next of kin: Re Davey [1980] 3 All ER 342. The will is executed by the ‘authorised person’, usually the receiver in charge of the patient’s affairs appointed by the Court.

Section 96 allows the making of any provision which could be made by a will executed by the patient if he were not mentally disordered. In Re D (J) several principles were laid down as governing the exercise of this jurisdiction:

u the patient is to be assumed as having a brief lucid interval

u during the lucid interval the patient is assumed to have a full knowledge of the past

u it is the actual patient who has to be considered, not a hypothetical patient

u during the lucid interval the patient is assumed to be advised by competent solicitors

u the patient will be envisaged as taking a ‘broad brush’† to claims on his estate rather than ‘an accountant’s pen’.†

† Wide interpretation.

† Narrow interpretation


In Re C (a patient) the Court emphasised that in addition to the above it was assumed that the patient was ‘a normal decent person, acting in accordance with contemporary standards of morality’.

Activity 8.3 What principles should the Court of Protection apply when making a statutory will?


Self-assessment question By whom is a statutory will executed on behalf of a mental patient?

Summary The Court of Protection may make a will on behalf of a mental patient considered incapable of making a valid will. Any provision can be made which could have been made by the patient were he not mentally disordered, but the Court will be guided by the principles enunciated in Re D (J) and Re C (a patient).


u indicate when and how statutory wills may be made.

8.3 Mutual wills

Essential reading ¢ Borkowski, Chapter 2: ‘Wills: nature, characteristics and contents’,

pp. 45–53.

¢ Kerridge, Chapter 6: ‘Promises to leave property by will’, pp. 103–108.

¢ Cases: Birmingham v Renfrew [1937] 57 CLR 666 ; Birch v Curtis [2002] WTLR 965; Re Cleaver [1981] 2 All ER 1018.

Mutual wills arise when two or more persons agree to make wills, usually in similar terms, with the proviso that the survivor will be bound to dispose of the estate in the agreed manner. Typically mutual wills are made by married couples, each benefiting the other, with a gift over in favour of their children. It is not necessary, however, that the testators should benefit each other: Re Dale [1993] 4 All ER 129. Mutual wills are often made jointly, i.e. executed as a joint will, but they can also be executed as separate wills.

The essence of mutual wills is that the testators agree not to revoke their wills. If the survivor revokes the will – thus breaking the agreement – equity imposes a constructive trust on the survivor for the benefit of the person disadvantaged by the revocation. Thus the mutual wills doctrine provides a remedy against the unconscionable revocation of a will.

8.3.1 The agreement The agreement not to revoke is the basis of the doctrine. Thus it must be proved that the wills were made in pursuance of an agreement by the testators as to the disposal of their property and that the survivor would be bound not to revoke his will. The agreement must be clear and unequivocal, amounting to a legally binding contract between the testators: Birch v Curtis. Evidence that the wills were made in similar terms and on the same occasion is not in itself conclusive proof that they were intended as mutual wills: Re Cleaver, where it was stated that there had to be clear and satisfactory evidence of the necessary agreement (see also Re Oldham [1925] Ch 75).


8.3.2 The constructive trust The trust arises when the first of the mutual testators dies without having revoked his will: his death is the determining event because it shows that the deceased carried out his part of the agreement. Thus it would be a fraud on the part of the survivor to depart from the agreement. However, the survivor cannot be prevented from revoking his will since the basic rule is that wills are always revocable. The imposition of the constructive trust, however, will effectively frustrate the survivor’s intention to alter his will. The trust covers all of the survivor’s property at his or her death subject to any contrary intention in the initial agreement: Re Green [1951] Ch 148.

However, the survivor can dispose of his property inter vivos since his only obligation under the initial agreement is not to revoke his will. Thus the mutual wills doctrine does not guarantee that the beneficiaries under the wills take anything. If the survivor revokes his will, the trust operates only against the assets held at the survivor’s death: Birmingham v Renfrew, where it was said that the effect of the doctrine was to create ‘a floating obligation, suspended...during the lifetime of the survivor’ which ‘can descend upon the assets at his death and crystallise into a trust’. This case also emphasised that the survivor should avoid inter vivos dispositions ‘calculated to defeat’ the intention of the initial agreement: see further Re Cleaver. Note also that Re Goodchild [1997] 3 All ER 63 held that where the survivor remarries – thereby revoking his will – the constructive trust operates. This seems a dubious decision given that the doctrine of mutual wills is intended to protect against unconscionable conduct.

If a mutual will is revoked during joint lives, the mutual wills doctrine does not apply: Stone v Hoskins [1905] P 194. The consequences of the revocation will be that the disadvantaged parties have a remedy for breach of contract, depending partly on whether the revocation was unilateral or not.

8.3.3 Contracts (Rights of Third Parties) Act 1999 This Act appears to alter the position of the mutual beneficiary in the case of mutual wills. Under s.1(1) a third party has the right to enforce a contractual term if (a) the contract expressly provides that he may do so, or (b) the term purports to confer a benefit on him. The typical mutual will would satisfy (b).

If the revocation occurs after the death of the first testator, the remedy under the 1999 Act will not be especially significant since the beneficiary can rely on the constructive trust under the mutual wills doctrine. However, where the revocation occurs during joint lives, the Act offers the beneficiary significant protection. Note that if the revocation was joint and without his consent, the beneficiary must satisfy the conditions in s.2.†

Activities 8.4–8.5 8.4 What protection does the mutual wills doctrine offer?

8.5 The Law Commission asks you to write a brief critique of the operation of mutual wills. What would be the main points of your response?


Self-assessment questions 1. What is the essence of the mutual wills doctrine?

2. What is the relevance of showing that wills were made simultaneously in similar terms by a married couple?

3. Explain what is meant by ‘a floating obligation’ which can ‘crystallise into a trust’.

† You should look at section 2 of the Act itself to check the details.


Summary In mutual wills the respective testators agree that the survivor is bound not to revoke the will. If the survivor does revoke the will in breach of the agreement, a constructive trust operates in favour of the beneficiary under the revoked will. However, the survivor can make inter vivos dispositions unless they are intended to defeat the agreement. If a mutual will is revoked during joint lives, the mutual wills doctrine does not operate. The Contracts (Rights of Third Parties) Act 1999 provides contractual remedies of potential use to beneficiaries under revoked mutual wills, especially where the revocation was during joint lives.


u explain the mutual wills doctrine.

Useful further reading ¢ Burgess, R. [1970] ‘A fresh look at mutual wills’ Conv 231.

¢ Youdan, T. [1979] ‘The mutual wills doctrine’ 29 U Toronto LJ 390.

¢ Rickett, C. (1991) ‘Extending Equity’s reach through the mutual wills doctrine’ 34 MLR 581.

8.4 Conditional wills

Essential reading ¢ Borkowski, Chapter 3: ‘Making a will: capacity and intention’, pp. 78–80.

¢ Kerridge, Chapter 3: ‘The nature of wills’, pp. 35–37.

¢ Cases: In the Goods of Spratt [1897] P 28; Corbett v Newey [1996] 2 All ER 914.

If a testator makes a will which is to operate only on the occurrence of some specified event, the will takes effect if the condition is satisfied; otherwise, it has no effect. However, where the testator expresses a motive or reason for making a will, rather than a condition, the will is regarded as unconditional. It may be difficult in any given case to decide whether the testator was expressing a motive or condition. It was said in In the Goods of Spratt that a will was conditional if it was ‘clearly expressed to take effect only on the happening, or not happening, of any event’. Further, the court referred to two particular criteria as useful in deciding whether the testator was expressing a condition or a motive:

a. whether the nature of the disposition made appears to have relation to the time or circumstances of the contingency; and

b. if the contingency is connected with a period of danger to the testator, whether it is coincident with that period.

Proof that the testator intended a conditional will must appear on the face of the will, although extrinsic evidence is admissible to resolve any ambiguity in the expression of the condition in the will. However, it was held in Corbett v Newey that extrinsic evidence is not admissible to prove that a will appearing on its face to be unconditional is, in fact, conditional.

Activity 8.6 Read In the Goods of Spratt and explain why it was decided that the will was not conditional.



Summary A conditional will is one where the testator expresses his intention that the will should operate only on satisfaction of a condition. The testator’s intention must be expressed in the will, but extrinsic evidence is admissible to resolve any ambiguity whether that intention is expressed in the will.


¢ indicate the circumstances where conditional wills operate.

8.5 Nominations


¢ Kerridge, Chapter 1: ‘Introduction’, pp. 2–5.

A nomination is a written direction, by a person with an interest in certain funds or investments, to the body holding the funds to transfer that interest to the nominee. Nominations can be classified as statutory or non-statutory.

Statutory nominations

These are binding directions as to funds held by statutory bodies such as the National Savings Bank, trade unions and industrial societies. The current limit for a nomination is £5,000 (Administration of Estates Order 1984). The formal requirements for making a nomination vary according to the rules of the particular fund-holder, but writing is invariably required. Nominations may be revoked according to the rules of the relevant body or statute, but a nomination cannot be revoked by a subsequent will. The marriage of the nominator does, however, revoke a prior nomination. If the nominee predeceases the nominator, the nomination lapses.

Non-statutory nominations

These are directions as to the transfer of assets in funds such as pension schemes and the proceeds of life insurance policies (the most usual cases). Such funds are normally held by trustees of the fund-holder for the nominator (often an employee). Directions by the nominator are in this case not binding although in practice they will normally be followed by the trustees. The nomination must be made in the form prescribed by the fund-holder but need not be executed like a will: Re Danish Bacon Co Ltd [1971] 1 All ER 86 and Baird v Baird [1990] 2 All ER 300. Marriage does not revoke a non-statutory nomination (unlike the case with statutory nominations). In Gold v Hill [1999] 1 FLR 54 it was emphasised that a nomination under a life insurance policy did not transfer any interest until the death of the insured.

Activity 8.7 Explain the distinction between statutory and non-statutory nominations.


Self-assessment question What is the effect of marriage on a prior nomination?


Summary Assets held in certain institutions and funds may be transferred on death by nomination. Statutory nominations are those made with regard to funds held by certain statutory bodies, whereas non-statutory nominations relate mostly to pensions and life insurance. The formalities required to make or revoke a nomination depend on the regulations and procedures of the relevant body.


u outline the basic rules applying to nominations.

8.6 Donatio mortis causa


¢ Kerridge, Chapter 6: ‘Promises to leave property by will’, pp. 108–118.

¢ Cases: Sen v Headley [1991] 2 All ER 636; Re Craven’s Estate [1937] Ch 423; Birch v Treasury Solicitor [1951] Ch 298.

A donatio mortis causa is a gift made in contemplation of death† (it can be conveniently described as a deathbed gift). Such gifts are of hybrid character, possessing some of the characteristics both of inter vivos gifts and testamentary gifts. Deathbed gifts resemble inter vivos gifts primarily because they must be made in the donor’s lifetime; on the other hand, they resemble testamentary gifts primarily because they are conditional on death. It is only on death that the donee’s title is complete.

According to Sen v Headley, there are three requirements for a valid deathbed gift:

u the gift must be made in contemplation of death

u the gift must be intended to be conditional on death

u there must be a delivery of the subject matter.

8.6.1 Contemplation of death The donor must be contemplating the probability of death in the near future, but need not be contemplating death immediately. It is not necessary that the donor should have died from the same cause that he was contemplating, provided that he was still contemplating death when he died: Wilkes v Allington [1931] 2 Ch 104. If the gift is made in contemplation of suicide, the position is unclear. Some old authority suggests that a valid deathbed gift could not be made in such circumstances, but there seems no longer to be any objection in principle to this, now that suicide is no longer a crime.

8.6.2 Conditional on death The donor must intend the gift to be conditional on the fact of his death. Until death the gift is fully revocable. If the condition is not satisfied, the property reverts to the donor. The condition will often be expressed by the donor but may be implied from the circumstances, as in Gardner v Parker [1818] 3 Madd 184. It seems that if the donor believed that his imminent death was certain, that does not preclude a valid deathbed gift, although some Scottish cases suggest otherwise.

† ‘In contemplation of death’ = ‘expecting to die’.


8.6.3 Delivery of the subject matter The donor must deliver the subject matter of the gift to the donee. This requires both an intention and an act of delivery.

Intention

The donor must intend to part with dominion – the right to possess – over the property comprised in the gift. Parting with dominion enables the donee to control the property. However, taking control of the property merely in order to act as its custodian is insufficient: Trimmer v Danby [1856] 25 LJ Ch 424.

Act of delivery

There must be actual delivery of the property itself or of the means of controlling it (constructive delivery). A symbolic delivery, e.g. receipts from the purchase of shares, will not suffice: Ward v Turner [1752] 2 Ves Sen 431. The delivery of keys will normally amount to constructive delivery of the property to which the keys give control: Re Lillingston [1952] 2 All ER 184. If, however, the donor retains keys to the property, having parted with other keys to the same property, everything will turn on whether the donor can be said to have surrendered effective control in the circumstances: Re Craven’s Estate and Woodard v Woodard [1995] 3 All ER 980.

The position regarding delivery of choses in action† depends on the type of chose in action involved. If the chose is transferable by delivery, e.g. banknotes or bonds, the normal rules apply: there must be an actual or constructive delivery of the subject matter. But if the chose in action is not transferable by delivery, there must either be a legal transfer of the property, or the delivery of some document which constitutes the essential indicia of title: Birch v Treasury Solicitor. As regards land, it was held in Sen v Headley that unregistered land could be transferred by a deathbed gift by delivery of the title deeds or the means of controlling them. It is probable that the delivery of a land certificate would suffice for a gift of registered land. Before Sen v Headley, it was thought that a deathbed gift of land was probably not possible but the case decided otherwise. It was held that s.53(1) Law of Property Act 1925 – which requires writing for the transfer of equitable interests in land – did not apply to deathbed gifts since they created a constructive trust. As regards assets for which passbooks are issued – typically certain types of building society accounts – it seems that the passbook will normally be regarded as essential indicia of title. This is the case even if the passbook does not contain all the essential terms for the use of the account: Birch v Treasury Solicitor.

8.6.4 The consequences of a deathbed gift Until the donor dies, a deathbed gift is fully revocable, but cannot be revoked by a subsequent will: Jones v Selby [1710] Prec Ch 300. If the donor recovers from illness, the gift is automatically revoked. If the donee predeceases the donor, the gift lapses: Tate v Hilbert [1793] 2 Ves Jun 111.

When the donor dies, his death converts the conditional title to the property to unconditional. However, in the case of certain choses in action, the deceased’s personal representatives will hold the legal title on trust for the donee but can be compelled to perfect the gift: Re Wasserberg [1915] Ch 195.

Activities 8.8–8.10 8.8 Explain what is meant by the requirement that there must be a delivery of the

subject matter of a deathbed gift to the donee.

8.9 Read Sen v Headley and consider which were the crucial facts that led to the decision reached in the case.

8.10 Suppose that the Law Commission is considering whether to recommend the abolition of deathbed gifts. It asks you to write a critique offering reasons for and against abolition. What would be the main points that you would make?


† A chose in action is a right that can be enforced by legal action.


Self-assessment questions 1. In what ways do deathbed gifts chiefly resemble the characteristics of:

a. inter vivos gifts

b. testamentary gifts?

2. Does it matter whether the deceased died of the illness that he or she was contemplating dying from?

3. What is the effect of the gift in a will of property which was the subject matter of a prior deathbed gift?

Summary A deathbed gift – donatio mortis causa – is a gift of property made in contemplation of death. For such a gift to be valid, it must be shown that the gift was made in contemplation of death in the near future, that it was made conditional on the death of the donor, and that the donor delivered the subject matter of the gift to the donee.

In the case of certain choses in action, the donor must deliver the essential indicia of title. Most property, including land, can be the subject of a deathbed gift. On the death of the donor, absolute title to the property normally vests in the donee.


u state the rules of donatio mortis causa.

Useful further reading ¢ Borkowski, A. Deathbed Gifts. (London: Blackstone Press, 1999) [ISBN 1854319388].

Sample examination questions Question 1 ‘It certainly is inadvisable, especially for younger people, to make mutual wills. There are so many uncertainties, particularly with regard to the effects of mutual wills, that making them can best be described as a form of mutual madness.’

Discuss.

Question 2 Discuss the following cases:

a. Hilda is an experienced solo yachtswoman who regularly competes in long-distance races. Just before boarding her yacht to begin her latest race, a 5,000-mile round trip, she says to Ian, one of her support team, ‘If anything happens to me this time, make sure that Jenny gets all my stuff.’ Jenny has been Hilda’s lover for some years. During the race Hilda’s yacht capsizes but she manages to cling on to it until she is rescued by helicopter. Tragically the helicopter later crashes when landing and all on board are killed. Ian tells Jenny what Hilda said to him before starting the race.

Advise Jenny.

b. Ken and Larry are enjoying their weekly round of golf on a beautiful summer day. They are both widowers and have been close friends for many years. Ken, who is about to go into hospital for a potentially serious heart operation, says to Larry, ‘Look, if I don’t get through this operation, I would like you to have my Porsche’. When they finish playing two hours later, Ken gives Larry a set of keys for the car, retaining the other set.

Ken’s operation goes well and he is discharged from hospital. However, the ambulance which is taking him home is involved in a serious accident in which Ken is killed.

Advise Larry.


Advice on answering the questions Question 1 This question requires a critical analysis of the rules relating to mutual wills. The quotation could hardly be disagreed with but can you think of any reasons why mutual wills might be a good idea in some circumstances? In focusing on the difficulties caused by mutual wills – the core of the answer – you need to consider in some detail the operation of the constructive trust: when does it arise, which property is subject to it, the position of the surviving testator, and other related issues. Full discussion of the cases is required especially Birch v Curtis, Birmingham v Renfrew, Re Cleaver, Re Goodchild.

Question 2 Part (a) is concerned mainly with privileged wills made by seamen at sea. Can Hilda qualify as a ‘seaman’? Did she make her will ‘at sea’? Did she have animus testandi? Consider also whether she made a conditional will. If so, has the condition been satisfied? Note that whether she was entitled to make a privileged will depends on the circumstances when she made the will (if she did so) and not the circumstances pertaining to her death.

Part (b) involves the application of the rules on deathbed gifts. The main issues are whether sufficient control of the car was given to Larry to amount to a valid delivery of the subject matter, and whether it is relevant that Ken died of a cause different from that contemplated by him.

Feedback to activities

Contents

Chapter 2 105

Chapter 3 106

Chapter 4 107

Chapter 5 108

Chapter 6 110

Chapter 7 111

Chapter 8 112

Succession Feedback to activities page 105

Chapter 2

Activity 2.1 You need to state the pre-1925 position, carefully distinguishing between realty and personalty, and then to demonstrate how the 1925 Act put the surviving spouse in a dominant position. It is clear that as a result of the 1925 changes widows especially were in a far better position, at the expense of eldest sons.

Activity 2.2 Consider to what extent the definition in s.55 encourages litigation about its interpretation. Focus also on the significance of the phrase ‘articles of household or personal use or ornament’. And what of the excluded items, especially chattels used for business purposes when the intestate died?

Activity 2.3 Apply the per stirpes rule to this scenario involving the entitlement of brothers, sisters and their issue. Would the position be different if B and C had children? If not, why not?

Activity 2.4 Consider when the issue of appropriation is likely to be relevant, if at all. Check in your textbook which exceptions apply to the right to require appropriation. Refer to case law which explains how appropriation operates in practice.

Activity 2.5 First, you need to explain what is meant by bona vacantia. Then consider the question of entitlement – arguably only the Crown is entitled but you need to discuss the circumstances when a discretionary payment may be made by the Crown.

Activity 2.6 You need to focus on which benefits were held by the court to establish the sons in life or to make continuing provision for them. For example, why was it that paying the housekeeping costs of the clergyman son and cost of the other son’s passage to India were held not to be advancements, and thus did not have to be brought into account?

Activity 2.7 The direction to accumulate for 21 years after the testator’s death was intended to benefit his children. As he died without leaving children, the direction became meaningless and ineffectual.

Activity 2.8 On partial intestacy the need to account applied to benefits received under the will as well as to advancements. Moreover, the surviving spouse had to account for benefits under the will on a partial intestacy, whereas on a total intestacy hotchpot applied only to issue.

Activity 2.9 No feedback provided.

Activity 2.10 Focus here on the idea of the intestacy rules as a form of statutory will, i.e. a safety net for those who die without having left a valid will. Parliament makes a will for them and presumes that their wish would have been predominantly to benefit their next-of-kin.


Chapter 3

Activity 3.1 Focus on the concept that a will is an instrument which only comes into effect when the testator dies. Before that time, the legal effects of a will are thus in suspense and the final distribution of the estate will obviously be affected by changes to the testator’s assets and what happens to the potential beneficiaries in the period between the execution of the will and the death of the testator. Note also that the word ‘ambulatory’ is derived from the Latin ambulare (‘to walk about’) and ambulatorius (‘mobile’, ‘shifting’, ‘mutable’).

Activity 3.2 You need to emphasise that this phrase constitutes the test of mental capacity for making a will. Banks v Goodfellow obviously requires discussion, especially the four criteria or factors specified by Cockburn CJ: understanding of the nature of the ‘business’ on which the testator is engaged, recollection of his property, of the persons whom he is benefiting, and the manner of distribution. Is there some other test of mental capacity that should be applied instead?

Activity 3.3 Clearly T was suffering from a delusion when he executed his will, but did the delusion influence the disposition of his property? If it did, as seems probable, what would be the consequence?

Activity 3.4 Consider in which circumstances ‘the golden if tactless’ rule is meant to apply. Is it really a ‘rule’ or simply advice on best practice? Note that the cases do not all speak with one voice. For example, it is not clear whether the doctor present should also witness the will, and it seems that only Re Parsons emphasises that the solicitor advising on the making of the will in such cases should be experienced in dealing with elderly, infirm testators.

Activity 3.5 Focus on the preparation of the will: what was Nye’s involvement? Was he a significant beneficiary? Consider also the surrounding circumstances – the ability of the testatrix to comprehend what was going on, whether she received independent advice, and the location of the will after it was executed. Note that Wintle did not allege fraud or undue influence. Was this a case of dishonest pleading to some extent?

Activity 3.6 Consider first the circumstances in which the power to omit and the power to rectify can be exercised. Is the statutory power wider or narrower in this respect? Also, you need to emphasise that the power to omit words is much more limited, in terms of what the court can do with a will, than the power to rectify – the latter extends to amendment and insertion, not just omission.

Activity 3.7 This well-known dictum from Hall v Hall highlights the degree of persuasion that must be proved in an allegation of undue influence. It is coercion that must be proved, i.e. that the testator was driven to make the will or the provisions in it that are disputed. Persuasion, or leading the testator, is permissible until it crosses the boundary and amounts to driving him to do something that he does not want to do.


Activity 3.8 First, consider the definition of ‘signed’ in Hindmarsh v Charlton and then comment on the efficacy of the definition. Illustrate your remarks with cases showing how wide the definition appears to be. Note that a will need not actually be ‘signed by the testator’ but can be signed by some other person within s.9(a).

Activity 3.9 Do Ken and Alma have to know that T is signing a will? If not, ought they to know? Consider whether there was an unobstructed line of sight between T and the witnesses when he signed the will. How bad must Ken’s be sight for him not to count as a valid witness?

Activity 3.10 As regards the current law, you need to focus on issues such as the minimum age of a witness, what is meant by ‘the faculty of seeing’ in Re Gibson, and what is meant by the requirement that a witness must be mentally present. As regards possible reform, consider particularly whether there should be a minimum age for witnesses.

Activity 3.11 The fundamental point that needs to be made is that the presumption only operates when the evidence as to whether the will was duly executed is inconclusive, but the probability is that it was duly executed. Thus if there is evidence of invalid execution, the presumption does not operate. Refer to cases such as Weatherhill v Pearce as illustrations.

Activity 3.12 You need to focus on the precise terms of the description of the document – ‘any memorandum amongst my papers’. Those words were construed as pointing to the future, i.e. after the will’s execution, and thus reserving to the testator the power to vary the will by an unattested document. Would that be contrary to the rationale of s.9? (See Chapter 7 section 7.2.)

Chapter 4

Activity 4.1 The aim was to preserve the exercise of a power of appointment in a will revoked by subsequent marriage unless the revocation would result in the property passing as if the deceased had died intestate. If it did so pass, there would be no point in saving the disposition from revocation.

Activity 4.2 The ratio of Re Phelan appears to be that a revocation clause will be inoperative if the testator did not know and approve of it. In Collins v Elstone the testator knew that her will contained a revocation clause but was mistaken as to its effect. To that extent, i.e. knowledge of a presence of a clause, the cases can be reconciled. But is this not an over-fine distinction? In both cases it is arguable that the testators did not intend the revocation clauses to have effect, yet the decisions differed.

Activity 4.3 You need to consider whether throwing a will into a bin amounts to ‘otherwise destroying’ under s.20. Cheese v Lovejoy suggests that this would not suffice, but shouldn’t it suffice? What arguments can you find for treating the will as revoked?

Activity 4.4 For such a rule to operate effectively one would have to know what the testator intended. That would be difficult to prove. In any case, does it matter that much what


he intended to do if, in fact, he has destroyed the will? Should not a will be regarded as destroyed if it has been torn in two even though the testator intended to tear it into more pieces?

Activity 4.5 Clearly there has been a sufficient act of destruction, but was the secretary acting in A’s presence and by his direction? Was there a line of sight between A and the shredding machine? What was A’s mental state: did he have the intention to revoke?

Activity 4.6 Consider carefully the effect of the revocation clauses in the case. Focus also on the testator’s intentions as to the beneficiary under the first will who had his interest reduced in the subsequent wills And what relevance did s.15 of the Wills Act 1837 have? Also address the way in which the court construed the revocation clause in the last will distributively.

Activity 4.7 No feedback provided.

Activity 4.8 Time is clearly of the essence since there is a fundamental difference as to the requirements depending on whether the alteration was made before or after the execution of the will. Remember, however, that an unsigned or unattested alteration appearing in a will is presumed to have been made after the will’s execution – and therefore will be invalid – unless the contrary is proved.

Activity 4.9 It is crucial to note that the first will contains a revocation clause. If that will is then revived by the codicil, as you are told, it will operate as from the date of the codicil. Thus the first will revokes the second will since it is now deemed to have been made after the second will by virtue of s.34. Even if the first will did not contain a revocation clause, it would revoke the second will impliedly to the extent of any inconsistency.

Chapter 5

Activity 5.1 Focus on what you think should be the object of construing wills. Is it to discover the testator’s intentions? Compare the consequences of the narrow and broad approaches – certainty on the one hand, flexibility on the other. Which is it most desirable to have? Also, consider whether the narrow and broad approaches exhaust the possibilities, or whether some other approach is justifiable.

Activity 5.2 The majority view was that ‘coinciding with’ must be construed in its literal sense, i.e. ‘simultaneous’. Since the precise details of how the Rowlands died were not known, it could not be demonstrated that their deaths were simultaneous. Hence the scenario for which the testator had made provision did not arise. Are you convinced? Can deaths be ever proved to be simultaneous? What did Dr Rowland intend by the words he used?

Activity 5.3 The court took the view that the testatrix had used the term ‘personal estate’ in its ordinary technical meaning and that there was nothing to show that the words should be construed differently. But could not the court have found a contrary intention on the facts? Compare with Re Bailey.


Activity 5.4 The word ‘money’ has no ordinary meaning: Perrin v Morgan. So the court will look at the surrounding circumstances, i.e. the context of the will. Does it matter that the will was home-made? Should it matter? If the word ‘money’ were to be construed here as applying only to the cash, the house would pass on intestacy as bona vacantia. Should that influence the court?

Activity 5.5 Consider what was the effect of the phrase ‘in which I now reside’. What did the testator intend by those words? The court held that the phrase was a non-essential part of the description of the property. Do you agree?

Activity 5.6 The purpose of the ‘golden’ rule is to avoid an intestacy on the assumption that the testator had not intended intestacy when he made his provisions. But the rule applies only if there is a dispute as to the meaning of the words in issue. Consider whether an intestacy might be preferable in such circumstances.

Activity 5.7 You need to apply the eiusdem generis rule to the facts since the general word ‘goods’ is preceded by specific things. But can you say that the specific things form a class or a type of property? Garden furniture is hardly the same as a stamp collection or painting (which are collectable items). Suppose, however, that the garden furniture was antique furniture? And what is the relevance of the presence or absence of a residuary clause in T’s will?

Activity 5.8 Consider what purpose is served, if any, by the class-closing rules. Those who qualify as a member of the class do not want to wait indefinitely to receive their share, which can only decrease the longer the class remains open. On the other hand, do not the rules produce inequality between members of the same class and thus potentially provoke bitterness within families? Is there a compromise ‘solution’ available in the scenario? Why not immediately pay qualifying members of the class a proportion of their potential share, and then await events?

Activity 5.9 Consider why the court should ‘sit in the testator’s armchair’ and how this might assist the court in construing his will. Is this an apt image to describe the court’s function? Focus also on what type of surrounding circumstances might assist the court.

Activity 5.10 The testator clearly wished the charity to look after his pets when he died. As no pets survived him, there was a latent ambiguity as to his intentions in respect of the gift. What was the consequence of admitting evidence of his instructions – mainly that the charity should take unless it refused to care for any of his pets? Note that the case was originally reported as Watson v National Children’s Home.


Chapter 6

Activity 6.1 First, you need to examine whether people do have duties of maintenance towards family members. Spouses and parents certainly do, but do others? In considering the position, think about the possible consequences if testators could do as they pleased and not be constrained to provide for family members: how would you feel if your spouse left his/her entire estate to, say, a remote cousin, and nothing to you? Think about what happens on divorce – do not spouses have duties of maintenance to each other? Yes, they do, so should the position not be the same when the marriage ends through death rather than divorce? Do you think the divorce analogy is apt in this discussion?

Activity 6.2 In addressing this question, you need to consider, among other things, what values your legal system aims for. Does it regard certainty of the law as the paramount virtue? Think also about the consequences of adopting either system. Would one lead to more litigation than the other? If so, is that necessarily a bad thing?

Activity 6.3 You need to consider each element of s.1(3) in a structured manner. Was A making a substantial contribution in money or money’s worth to B’s reasonable needs? Clearly the provision of rent-free accommodation is such a contribution. The key question, however, is whether the contribution was made other than for full valuable consideration. What is the relevance of B being paid the standard rate? And should the nursing care which he provided be considered as part of the ‘consideration’ or does it arise out of the ‘mutuality of the relationship’ as per Bishop v Plumley?

Activity 6.4 In particular, look for the factors mentioned in the judgment other than those stated above. What was the relevance of the negligent delay of the applicant’s solicitors?

Activity 6.5 Compare the first instance decision to that of the Appeal Court. Which do you think was more justified? Would you have been more generous than either? Also, consider the position of Oxford University, the chief beneficiary named by the testator. What should happen in a contest between the surviving spouse and a charity?

Activity 6.6 Consider whether the interpretation/definition in Re Coventry is helpful. As for Re Dennis, what are ‘recurring living expenses’? What relevance does the applicant’s ‘station in life’ have?

Activity 6.7 Begin with the dicta in Re Coventry and explain why these have caused a problem of interpretation in later cases. Consider the effect of Re Hancock and Espinosa v Bourke. Following those cases, what now is the relevance of proof of moral obligation or special circumstances?

Activity 6.8 Is it right that the position of children should be no better than the other categories of applicant, apart from the surviving spouse? What arguments are there for equating or approximating the position of children to that of spouses?


Activity 6.9 Relevant factors: applicant aged 77; living on modest means; had surrendered her council flat; settled accommodation in deceased’s home; nowhere to live if intestacy rules applied; deceased’s daughter in comfortable position. Does the court indicate which was the most important factor? Note that the CA was much more generous than the first instance judge.

Activity 6.10 You need to apply Jelley v Iliffe to these facts. Even if there are no overt acts of assumption of responsibility, can A argue that the fact of maintenance suffices? Note that Jelley v Iliffe overruled Re Beaumont [1980] 1 All ER 266 on the need for overt acts.

Activity 6.11 A literal interpretation would demand that the deceased knew of the Act in order to be regarded as having an intention to defeat it. If that interpretation had been followed, what effect would that have had on the applicability of ss.10–11? How many people know of the 1975 Act? Or is that the right question?

Chapter 7

Activity 7.1 Everything will depend on the circumstances. If the gift has been adeemed (see section 7.5) the beneficiary will obviously not benefit from it at all in the case of a specific gift. But if there is no ademption, then a specific beneficiary stands favourably since general gifts will be used before specific gifts in the payment of debts.

Activity 7.2 Consider the effect of the revival of the 2002 will. It will be read together with the 2004 will as forming T’s final will. Although A and B witnessed the earlier will, they nevertheless can take because the instrument which gave validity to the 2002 will was not witnessed by them.

Activity 7.3You should take a broad view of the term ‘exceptions’. Thus, although most of the summary would focus on s.33, it is important also to include reference to the moral obligation rule, as well as the position regarding class gifts, charitable gifts and joint tenancies.

Activity 7.4A decision that, if deaths occurred simultaneously – if that could ever be proved – it would not be ‘uncertain’ who survived whom, would have unduly restricted the operation of s.184. That section was enacted partly to deal with issues resulting from multiple deaths in disasters and similar incidents.

Activity 7.5 Either Alan can claim the shares or they will fall into residue. For Alan to succeed, he must show that the gift was not adeemed. Applying the tests in Oakes v Oakes and Re Slater, can the testator be said at his death to have held ‘substantially the same thing’? Are shares in Big Fish Ltd substantially the same thing as shares in X Co? Look at the facts of Re Slater to help you answer this.

Activity 7.6 Apart from the fact that it is a very old case, the rule in Lawes v Bennett appears to breach the fundamental notion that ademption necessarily arises before the testator’s death. Also, should the position of the beneficiary depend entirely on the whim of the party to whom the option is granted?


Activity 7.7 The test is whether ‘the justice of the case’ requires the effect of the forfeiture rule to be modified. In Re K the court clearly sympathised with the convicted battered wife, whereas in Jones v Roberts the brutal, unprovoked murder of the parents by the son did not attract sympathy.

Activity 7.8 The normal meaning of ‘modify’ is to alter or to change partially, so one might have expected that interpretation in the cases. However, Re K and Dunbar v Plant demonstrate that the term can be interpreted widely to include total relief from the forfeiture rule.

Activity 7.9 There must be some evidence of disclaimer, although there is no one form of effecting it. Consider also the circumstances when a disclaimer cannot be made and when it may be retracted.

Activity 7.10 Focus on the words ‘precedent’ and ‘subsequent’. A condition precedent is one which must be satisfied before the beneficiary can take, i.e. it precedes the taking. In a condition subsequent, the beneficiary loses his gift after he has taken it, i.e. subsequently.

Activity 7.11 First, consider what type of condition it is. If it is a condition precedent, it does not require as much certainty as a condition subsequent. Would the court rule that the phrase ‘a Roman Catholic’ is sufficiently certain to allow the court to say in a particular instance whether an individual satisfies the condition? Consider the consequences if the condition is held to be uncertain or, if it is certain, whether it has been satisfied.

Chapter 8

Activity 8.1 You need to question the purpose of allowing some people the privilege to make an informal will. Even if you think that the privilege can be justified in the case of soldiers and seamen, consider whether it is acceptable for those occupations to be singled out. Could a case be made for an extension of the privilege to other occupations? Consider the recommendations of the Law Reform Committee’s Report No. 22 (1980).

Activity 8.2 Note that it is the circumstances pertaining to the execution of the will that are relevant, and not those of the testator’s death. You need to apply Re Wingham and Re Jones. Can a rebel force be regarded in law as having soldiers on military service? Would it be relevant to know whether the rebel force wore uniform or not? On the facts, what evidence would be needed that a will had been made?

Activity 8.3 You need to summarise the judgments in Re D (J) and Re C (a patient) on this issue. Consider also whether any other principles/factors should be relevant, since the question as it is posed (‘should the court…’) encourages you to think critically.

Activity 8.4 Be careful at the outset to distinguish between revocation during joint lives and revocation after the death of the first testator. Clearly you need to focus here on the consequences of the constructive trust that arises. And remember to comment on the position regarding inter vivos dispositions by the survivor.


Activity 8.5 The major problem with the mutual wills doctrine is that the imposition of the constructive trust may seriously restrict what the surviving testator might do with his or her property. That would be particularly inconvenient if the survivor’s circumstances have changed significantly since executing the mutual will. Other problems include the ability of the survivor to make inter vivos dispositions, the precise nature of the duties of the constructive trustee, and the difficulty in some cases of ascertaining which property is subject to the trust.

Activity 8.6 The testator’s phrase ‘in case of an accident’ does seem prima facie somewhat vague and generalised to be held to be a condition. Do you agree? Consider also the relevance of the testator asking his sister to keep his will until he asked for it.

Activity 8.7 First, you need to focus on the types of institutions and fund holders which allow transfers of assets on death through nominations. Mention also needs to be made of the ways in which nominations can be made and revoked.

Activity 8.8 Remember to emphasise that there must be both the intention to deliver and an act of delivery. You need to distinguish between the different types of delivery as well as focusing on the differing requirements for different types of chose in action. Consider whether the delivery need be made to the donee personally.

Activity 8.9 You need to consider what was the evidence of the donor’s intention to make a gift of his house to the donee. Was he contemplating death in the near future? How did the donee acquire the keys to the deeds box and house? Does it matter that the intention and delivery may not have coincided? Consider also whether there was any evidence corroborating the donee’s version of events? If not, should that matter?

Activity 8.10 Consider what may be the purpose of deathbed gifts. Can they not be justified as providing a means of transferring property on death in extreme circumstances, when the donor might be unable to make a will? Should not the law be flexible enough to allow that? On the other hand, is it right that valuable property, such as land, could be transferred by a minimum of formality, sometimes even where there is no corroboration of the donee’s testimony?


Notes

Succession Law in UK

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