LEVEL 6 - UNIT 14 – WILLS OF LAW AND SUCCESSION
SUGGESTED ANSWERS - JUNE 2014
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2014 examinations. The suggested answers set out a response that a
good (merit/distinction) candidate would have provided. The suggested answers
do not for all questions set out all the points which students may have included
in their responses to the questions. Students will have received credit, where
applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
When the Court construes a will in order to ascertain the meaning of the words
used by a testator, it tries to ascertain that meaning from within the will itself, as
in Re Whitrick (1957). Where a testator has failed to express himself clearly and
in unambiguous terms, the Court applies rules of construction and may admit
extrinsic evidence to assist it in interpreting the intention of the testator in the
light of the actual words used in the will.
The Court has adopted two approaches when construing the wording of a will.
Firstly, a strict literal approach where the ordinary meaning of a word is used
and, secondly, an intentional or more liberal approach where the intended
meaning of the words used to that particular testator is sought.
The Court has adopted a more cautious literal approach in the past, being
anxious not to re-write the will for the testator. The Court will not speculate
about the testator’s intention and, if the words used have a clear meaning, then
that meaning will be applied even if that may not have been the intention of the
testator. Examples of this approach includes Scale v Rawlins (1892) and Re
Jones (1998). In Re Rowland (1962), the Court adopted the strict dictionary
meaning of the word “coincide”, rather than applying what the word may have
meant to the particular testator.
The Court will look at the will as a whole, as in Re Whitrick (1957), and will give
words their ordinary grammatical meaning. In Perrin v Morgan (1943) the Court
had to decide upon what the testator intended by the word “moneys” and it gave
“moneys” a wide meaning so that it included the testator’s stocks and shares
which made up most of the estate and which the testator must have had
intended to include within the meaning of “moneys”.
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A secondary meaning may be indicated by a definition clause contained in the
will or when a will is applied to the surrounding circumstances it becomes clear
that the testator had used a particular word in a secondary sense, as in Re
Davidson (1949), where “my grandchildren” was held to include children of the
stepson of the testator because the will described him as “my son” and one of his
children as “my granddaughter”. Other examples of cases include Re Fish
(1894), Thorn v Dickens (1906), and Re Smalley (1929).
Technical words will usually be given their technical meaning, as in Re Cook
(1948) where “all my personal estate whatsoever” was held not to include the
testator’s land (realty). Words may have a special meaning to the testator, as in
Shore v Wilson (1842), where a testator belonged to a religious sect and the
term “godly persons” was given the meaning current among members of that
sect. The Court will also have regard to the punctuation used in a will, including
words in capitals and blanks.
The Court will have regard to the subsidiary rules of construction such as
ejusdem generis, falsa demonstratio, and particular rules where there are
inconsistent clauses. The Court will also have regard to s24 Wills Act 1837 which
states that a will speaks from death in respect of property, unless a contrary
intention is shown in the will.
Generally, the Court ascertains the testator’s intention from the will alone.
However, it will admit extrinsic evidence where the surrounding circumstances
are taken into account under the “armchair principle”, or where words are
ambiguous on the face of the will (patent ambiguity), or the words are
ambiguous in the light of the surrounding circumstances (latent ambiguity), or
any part of the will is meaningless. Section 21 Administration of Justice Act 1982
(AEA 1982) codifies the rules governing the admission of extrinsic evidence with
the intention of solving ambiguities and which is supportive of the intentional
approach.
Section 21(1)(a)(AEA 1982) applies where any part of the will is meaningless. It
has a narrow application, in that the lack of meaning must be apparent from the
face of the will. An example is Kell v Charmer (1856), where a jeweller’s code
was used.
Section 21(1)(b) (AEA 1982) applies where the language used is ambiguous on
the face of the will as in Perrin v Morgan (1943), Re Williams (1985,) Westland v
Lilis (2003), Spurling v Broadhurst (2012).
Section 21(1)(c) (AEA 1982) applies where evidence other than evidence of the
testator’s intention shows the language used is ambiguous in the light of the
surrounding circumstances. Here, the Courts will admit both direct extrinsic
evidence and circumstantial extrinsic evidence to resolve the ambiguity, as in
Charter v Charter (1874). In Re Jackson (1933) the testator gave property to
“my nephew Arthur Murphy”. When the will was made there were three nephews
by that name, one of whom was illegitimate. Evidence of the surrounding
circumstances had revealed the ambiguity and extrinsic evidence showed that
she intended the illegitimate nephew should take the property. Another example
is Pinnel v Anison (2005).
Analysis of the Court’s use of s21(AEA 1982) and its interpretation by
show that admission of extrinsic evidence is more likely to result in the
real intentions being carried out other than it might otherwise be if
literal approach was taken. The decisions of the Court in cases such as
Barzey.
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the Court
testator’s
the strict
Charles v
(2003) illustrate the intentional approach that is being adopted. Other examples
of cases where the Court has adopted the intentional approach include Re Bowles
(2003) and Re Rogers (2006).
Question 2(a)
Where a specific gift is made in a will, the gift will fail for ademption if the
subject matter of the gift no longer forms part of the estate at the testator’s
death, or if the gift has been disposed of or sold by the testator, or destroyed
during the testator’s lifetime. In Durrant v Friend (1852) it was stated that where
it was unclear whether the death of the testator or the destruction of the
property occurs first, then the property is deemed to have perished before the
testator and so it adeems. Although a specific legacy or specific devise fails by
ademption if the subject matter has ceased to exist at the testator’s death,
neither a general legacy nor a demonstrative legacy would fail by ademption.
Although a change in the substance of the gift causes ademption, a change in
name or form only does not. In Re Slater (1907) a will contained a gift of specific
stock in a company which was taken over and replacement stock was issued. As
the replacement stock was totally different in character, it failed by ademption
because the original stock was no longer identifiable. If the subject matter has
only changed in form and remains substantially the same thing, then ademption
will not occur. Companies which have replaced shares with share issues of
differing numbers and categories have caused the Courts to consider whether or
not there has been a change in substance, as in Re Clifford (1912) and Re
Leeming (1912). Other examples include Re Dorman (1994) which was
concerned a change in form of a bank deposit account, and Soukun v Hardoyal
(1999) which involved the replacement of a life assurance policy.
Ademption of a specific gift by a contract made after the will occurs, for example,
where a testator makes a specific devise of land by will and subsequently enters
into a contract to sell that land, but the testator dies before completion of the
sale. The effect is to adeem the specific gift, the beneficiary only being entitled to
enjoy the land or its rent from the testator’s death until completion of the sale.
This follows the equitable doctrine of conversion, because by contracting to sell
the land, the testator disposes of his beneficial interest in it except so far as the
testator remains entitled to enjoy it until completion of the sale. In Re Sweeting
(1988) the Court decided that a devise is adeemed by a conditional contract in
the same way that it is adeemed by an unconditional contract. This is on the
basis that the condition is fulfilled and the contract is subsequently completed.
Ademption may also occur by exercise of an option to purchase granted after the
will was made. The effect of exercising the option even after the testator’s death,
is to convert the real property into personalty from the date of the granting of
the option. This is known as the rule in Lawes v Bennett (1785). Although the
specific devise of the land is adeemed, the rents and profits due from the date of
death until the exercising of the option pass to the beneficiary, as stated in Re
Marlay (1915). For the purpose of determining the entitlement to the sale
proceeds, the land is deemed to have been converted from the date of the
granting of the option, whereas for the purpose of determining entitlement to the
income, the land is treated as converted at the date the option is exercised.
Question 2(b)
Over the years a set of principles based upon public policy has been developed
under the common law whereby a person who seeks to benefit from a crime is
denied any consequential benefit, and as reiterated in Gray v Barr (1971). Prior
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to the Forfeiture Act 1870 the property of a convicted person was forfeited to the
Crown. Since 1870 the Courts have developed a rule of public policy where
someone who commits murder, as in Re Crippen (1910), and in some cases of
manslaughter, as In the Estate of Hall (1914), are prevented from taking any
benefit under the victim’s will or intestacy.
The Forfeiture Act 1982 gave the Court a discretionary power to grant relief to
persons convicted of a crime except for murder. In Dunbar v Plant (1997), the
Court exercised its discretion by deciding that a survivor of a two-person suicide
pact would not be subject to forfeiture. Other examples include Re K (1985) and
Re Jones (1998).
In Re DWS (Deceased) (2001), a son murdered both of his parents who died
intestate. The son could not inherit due to his conviction for murder. However,
his son claimed to be entitled to the estates of his grandparents under s47 (1)(i)
Administration of Estates Act 1925. The Court decided that the issue of the child
of an intestate could only inherit if the child had predeceased the intestate.
Consequently, the grandchild could not inherit. This appeared unfair in the
circumstances and this case would be decided otherwise from 2012 as a result of
the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act
2011.
One purpose of the Act is to preserve the inheritance rights of a person’s
descendants if that person disclaims an inheritance or is disqualified from
receiving an inheritance due to the rule of forfeiture. The Act preserves the
Court’s discretionary power to modify the effect of the forfeiture rules in the
interests of justice except in the case of murder. Section 1 of the Act provides
that if a person entitled on intestacy is disqualified, the property will pass under
the intestacy rules as if that person had died immediately before the intestate. If
that person leaves issue then they will take in accordance with the statutory
trusts, thus allowing the child of the disqualified son to take under the statutory
trusts, as in Re DWS (Deceased).
The rules on forfeiture do not prevent a killer from applying for provision under
the Inheritance (Provision for Family and Dependants) Act 1975, unless that
person has been convicted of murder. Thus, for example, a person convicted of
manslaughter by gross negligence could still make a claim under the 1975 Act.
Question 3
The Courts created the doctrine of mutual wills in order to remedy the
unprincipled revocation of a will in certain circumstances. The general principle is
that a testator has a right to revoke his will. The concept of mutual wills was
devised to help individuals making similar wills and ensure that after the death of
one of them, the survivor cannot make a new will changing the beneficiaries.
The doctrine was developed to deal with the situation where testators had agreed
to make wills leaving their property in the same way, but on the understanding
that on the death of the first to die, the survivor would not make a new will
changing the beneficiaries. Accordingly, the Courts impose a constructive trust
on the survivor which, in effect, removes his right to make a new will in breach
of the agreed provisions.
The Courts developed the doctrine in cases such as Dufour v Pereira (1769) and
Stone v Hoskins (1905). In Re Dale (1993) spouses made wills in similar terms
leaving their property to the husband’s daughter and the wife’s son. Shortly after
the husband’s death, the wife made a will revoking her previous will, leaving a
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bequest to her husband’s daughter and the majority of her estate to her son. The
husband’s daughter claimed that the wife was bound in equity to adhere to the
terms of the mutual wills and the Court decided the doctrine applied and was not
confined to cases where the surviving testator benefitted under the will of the
first testator to die. It stated that the aim of the doctrine was to prevent the first
to die from being defrauded. This was conditional upon the first testator having
performed his part of the agreement prior to his death, this being essential in
equity.
In Fry v Densham-Smith (2010), the Court stated that in order to prove the
existence of mutual wills, evidence was required, firstly, to establish the
testator’s prior agreement to make mutual wills intending their agreement to
become irrevocable on the death of the first to die and, secondly, the making of
the mutual wills pursuant to that agreement. It was stated that express
agreement not to revoke the wills had to be certain, clear and satisfactory.
Agreement would not be implied simply by reason of the fact that the testators
had made similar or “mirror wills”.
Evidence of the agreement has been considered by the Courts in a number of
cases including Re Oldham (1925), Re Cleaver (1981), Re Goodchild (1996), and
in Charles v Fraser (2010). In the latter case there was no written evidence to
substantiate two sisters having entered into an agreement, although it was
possible to establish that there was an agreement from witness evidence about
the conduct and statements made by the sisters.
Mutual wills cannot be revoked without the consent of both testators as in Stone
v Hoskins (1905). The surviving testator cannot be allowed to depart from the
agreement and equity imposes a constructive trust to give effect to the terms of
the agreement upon the death of the first testator. This is known as the
crystallisation of the trust. Another example is Re Hagger (1930).
If both testators are alive and one testator alters his will, then unless the other is
known to have agreed, this will revoke the mutual will. It was stated in Re
Hobley (1997) that any alteration however minor without the consent of the
other testator will invalidate the mutual will.
If spouses make mutual wills and the survivor subsequently remarries or enters
into a civil partnership, it was suggested in Re Goodchild (1996) that the
revocation of the mutual will would give rise to the trust to give effect to the
terms of the mutual will.
The property which is bound by the constructive trust will depend upon the terms
of the agreement contained in the mutual wills. In Re Green (1951) spouses
made wills leaving their property to each other with the proviso that the survivor
was to leave half of the property to named charities. Following the wife’s death
the husband remarried and made a subsequent will in favour of his second wife.
The Court decided that the later will was only effective to deal with half of the
property of the husband, the other half being subject of the trust contained in
the mutual will. The trust will only apply to the estate inherited from the other
spouse because that is when the trust arose. It would not apply to property
acquired by the surviving testator after the death of the first testator. In
Birmingham v Renfrew (1937) it was suggested that the survivor be treated as
the absolute owner of the property during his lifetime but, on death, the property
must devolve in accordance with the agreement.
Mutual wills can suggest certainty, but it is the inflexibility of the agreement once
the first testator has died which is the principle disadvantage. The surviving
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spouse is prevented from changing his will once crystallisation has occurred and
this undermines the survivor’s testamentary freedom and would prevent the
surviving testator, who might live for many years, from changing his will for good
reason and to reflect changes in his circumstances. This is particularly so if the
survivor remarries and acquires obligations to a new spouse where he could still
be bound to leave his estate in a certain way in accordance with the mutual will.
If that testator fails to make provision for his new spouse, then that spouse may
claim under the Inheritance (Provision for Family and Dependants) Act 1975, as
indeed, might other claimants such as children treated as a child of that
marriage.
Thus, although the doctrine of mutual wills gives the illusion of certainty,
significant problems can arise. An alternative would be for testators considering
making mutual wills to make non-mutual wills creating express trusts and by
defining the assets to be included in those trusts, thus providing greater
flexibility and more certainty.
Question 4
The personal representatives have a responsibility to pay the funeral,
testamentary and administration expenses, debts, and liabilities of the deceased.
A personal representative who orders the funeral is personally liable to pay the
undertaker but is entitled to be reimbursed from the estate. Under s200(1) of
the Inheritance Tax Act 1984 personal representatives are personally liable for
the payment of inheritance tax, as stated in IRC V Stannard (1984). In practice,
banks and building societies will allow the deceased’s funds to be made available
for the payment of inheritance tax.
The personal representatives must make themselves aware of the assets
available for the payment of debts, these being defined in s32(1) Administration
of Estates Act 1925 (AEA 1925). In Re Tankard (1942) it was said that debts
must be paid promptly and the personal representatives should have regard to
any debts which carry interest and should exercise due diligence in paying debts
as soon as funds become available and normally within the executor’s year.
As soon as practicable, personal representatives need to assess whether the
estate is solvent and, if not, ensure they pay any debts in accordance with s421
Insolvency Act 1986, otherwise they could be personally liable under s25 AEA
1925. If the estate is solvent, they may need to follow the statutory order for the
payment of debts if the estate is not going to be sufficient to pay all of the debts
and legacies. Section 34(3) AEA 1925 applies unless varied by the will.
Under s10(2) Administration of Estates Act 1971, personal representatives who
act in good faith at a time when they had no reason to believe that the estate
was insolvent when they pay a debt to a creditor, are not liable to account to
creditors of the same class as the paid creditor if it later transpires that the
estate is insolvent. However, they are not protected against creditors of a
superior class to whom they would be liable to account if they had had notice of
those creditors. Provided they act in good faith, if personal representatives pay
an inferior debt without notice of a superior debt and without undue haste, as
stated in Re Fluyder (1898), they will not incur liability. Under s61 Trustee Act
1925 (TA 1925), the Court has a discretionary power to relieve personal
representatives either wholly or partly from personal liability for any breach of
duty if they have acted honestly and reasonably and ought fairly to be excused
for the breach.
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Personal representatives must take all reasonable steps to ascertain the debts of
the estate. If they fail to do so then they can be held personally liable. For their
protection from claims made by creditors or beneficiaries of whom they are
unaware, personal representatives can gain protection by advertising in
accordance with s27 TA 1925. This requires an advertisement in the London
Gazette and in a newspaper in the area where any land belonged to the
deceased is situated, or where the deceased carried on a business. Appropriate
searches that a purchaser of land would have made should also be made by
them. A time limit of not less than two months must be stated in the notice for
claims to be made and they must wait for that time period to expire before
distributing the estate if they are to avoid personal liability to claimants of which
they are unaware.
Although a disappointed creditor or beneficiary cannot recover assets from
personal representatives after the expiry of the two months, they can pursue the
beneficiary who has wrongly received those assets. Although s27 protects
personal representatives from claims by unknown creditors or beneficiaries, it
does not protect them from known creditors or beneficiaries, but who cannot be
found, an example being Aon Pension Trustees v MCP Pension Trustees (2010).
The personal representatives must identify and make enquiries to find the
beneficiaries. If they make s27 advertisements they will be protected from claims
by unknown beneficiaries, but not from known beneficiaries whom they are
unable to find. Neither will they be protected from claimants under the
Inheritance (Provision for Family and Dependants) Act 1975. In these
circumstances they should apply to the Court for a Benjamin Order for
protection. In Re Benjamin (1902) the testator made a residuary gift to a
beneficiary who disappeared some time prior to the testator’s death. Despite
advertisements, the beneficiary did not come forward and the Court allowed the
estate to be distributed on the basis that the beneficiary had predeceased the
testator. Alternatively, a declaration could be sought from the Court under the
Presumption of Death Act 2013 that the missing person is deemed to have died.
A “Benjamin Order” extends to the ascertainment of creditors as well as
beneficiaries as in Re Gess (1942). Before making a Benjamin Order the Court
will require s27 advertisements and other appropriate enquiries to be made.
Personal representatives may also seek personal protection by taking out an
insurance policy against the possibility of a missing beneficiary appearing later.
They could also consider taking an indemnity from the beneficiaries who are
being overpaid on the basis that they will reimburse them if the missing
beneficiary should appear. Alternatively, they could seek directions from the
Court under s61 TA (1925).
The safest course would be for the personal representatives to a Benjamin Order
or seek directions from the Court and obtain full protection, as in Re King (1907).
An unpaid creditor would still be entitled to claim against a recipient of the
deceased’s assets, but the personal representatives would not be personally
liable. An indemnity insurance policy would protect the personal representatives
and beneficiaries at a reasonable cost, as stated in Evans v Westcombe (1999).
Although the personal representatives could take an indemnity from the
beneficiaries with the provision of security, this could present practical difficulties
and might not be enforceable, leaving the personal representatives in a
vulnerable position.
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SECTION B
Question 1
To make a valid will a testator must have the testamentary capacity to do so.
Consequently, a testator must have mental capacity at the relevant time to make
a will. Section 1 Mental Capacity Act 2005 (MCA 2005) states that a person is
presumed to have capacity unless it is established to the contrary. Section 2 MCA
2005 states that the lack of capacity cannot be established simply by reference
to a person’s age, condition, or aspects of behaviour which might lead to the
wrong assumptions about capacity being made.
In relation to wills, the test for mental capacity was established in Banks v
Goodfellow (1870). This requires a testator to have understood he was making a
will which would come into effect on his death, the extent of his property, and
any moral claims on his generosity. It was stated in Scammell v Farmer (2008)
that the MCA 2005 was not intended to supersede this test. In Wood v Smith
(1992) a testator had been confused on the day he executed his will. The Court
decided that as his confusion had taken the form of not being able to remember
names and addresses, it did not mean that he did not have testamentary
capacity at that time.
At the time she signed her will Jennifer may have had mental capacity even if
she was confused that particular day. A testator can validly execute a will during
a lucid period, as shown in cases such as Richards v Allan (2000), Ewing v
Bennett (2001), Sharp v Adam (2006), and Key v Key (2010). Jennifer was
aware of her will as she had taken it from her handbag with the apparent
intention of signing it in the presence of her requested witnesses. It is unclear
whether her confusion had led her to have trouble signing her name or whether
it was her physical condition. Presumably her lawyer thought she had capacity
when he prepared the will. The Court may take account of his findings as in
Burgess v Hawes (2013), in addition to any available medical evidence regarding
her capacity.
As well as having testamentary capacity, Jennifer must also have knowledge and
approval of the will she is signing. In Guardhouse v Blackburn (1866) the Court
stated that the testator must know and approve the contents, and intend the
document to operate as a will. Further, execution of the will would indicate
knowledge and approval unless there was evidence of suspicious circumstances.
On the facts, it would appear that Jennifer knew that her will had been prepared
by her solicitor as she had instructed, and would therefore be taken to have
knowledge and approval of its contents at the time it was executed. Even if she
did not know and approve its contents at the time of execution, it might still be
valid under the rule in Parker v Felgate (1883). This is provided she knew that
the will was prepared in accordance with her instructions, and at the time of
execution she understood she was executing a will for which she had given
instructions. Consequently, even if at the moment of execution Jennifer did not
know and approve of the contents of her will due to her confusion, on the basis
of her actions and what she had said moments before, it would appear that her
will would be valid under this rule. The rule in Parker v Felgate (1883) was
reaffirmed in Battan Singh v Armirchand (1948) and Perrins v Holland (2010).
There is a rebuttable presumption that a testator with capacity who has executed
a will did so with the necessary knowledge and approval unless, for example,
there are circumstances which “excite the suspicions of the Court”. This may be
relevant regarding the actions taken by Veronica in assisting her mother to
execute her will.
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Section 9(a) and (b) Wills Act 1837 requires a will to be signed by the testator or
by some other person in his presence and by his direction, and the testator must
intend by his signature to give effect to the will. The testator’s signature need
not necessarily be her name provided the signature shows an intention to
execute the will. In Re Chalcraft (1948), the testator was very weak and could
only sign “E Chal” instead of “E Chalcraft”. The signature was valid because she
had done all that she could in the circumstances and this principle would appear
to apply to Jennifer.
Jennifer has been assisted by Veronica in signing her will. In Barrett v Bem
(2012) the Court stated that if a testator chose to sign the will himself, as
opposed to directing some other person to sign on his behalf, then he can be
assisted by another person on condition that the testator makes some “positive
and discernible contribution to the signing process”, as opposed to making no
positive contribution and being acquiescent. Initially, Jennifer intended to sign
the will herself, but took no steps to request assistance from Veronica.
Accordingly it would seem that the signature would be Veronica’s rather than
Jennifer’s. As there is no evidence of Jennifer giving a direction to Veronica to
sign on her behalf, it appears that the requirements of s9 (a) WA 1837 are not
satisfied and on that basis the will is invalid.
Section 9(c) and (d) WA 1837 require the testator’s signature to be made or
acknowledged by the testator in the presence of two or more witnesses present
at the same time, and that each witness either attests and signs the will or
acknowledges his signature in the presence of the testator, although not
necessarily in the presence of one another. Jennifer signed her will in the
presence of both witnesses but since she was asleep by the time Alice signed,
Alice did not sign in Jennifer’s presence. The requirements of s9(c) and (d) WA
1837 do not appear to have been satisfied.
Question 2(a)
To succeed under the Inheritance (Provision for Family and Dependants) Act
1975, the claimants must prove that Harry died domiciled in England and Wales,
that they have the locus standi to make the application by being within one of
the categories in s1(1), and satisfy the Court that the rules of intestacy fail to
make reasonable provision for them. Under s4 applications must be made to the
Court within six months of the grant of representation. Although the Court
generally has discretion to extend this time limit, if jointly owned property is to
be taken into account, there is no discretion to extend the time.
Michelle is within s1(1)b) and may claim because no financial settlement has
been reached following her divorce.
Alain is within s1(1)(c) and it would seem that he has completing his studies with
some financial support from his father. He is the sole beneficiary on Harry’s
intestacy and on so does not need to claim under the Act.
Lucinda is within s1(1)(e), but not s1(1)(ba) as she had only lived with Harry for
eighteen months and not a minimum of two years. Lucinda would have to satisfy
the Court that Harry had been making a substantial contribution towards her
reasonable needs prior to his death.
Sophie is within s1(1)(e) provided she was maintained by Harry, but is not within
s1(1)(d) because Harry and Lucinda were not married.
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Question 2(b)
Claimants must satisfy the Court that the rules of intestacy fail to make
reasonable financial provision for them. The test of reasonableness is objective
rather than subjective, and is applied at two stages in the application. Firstly, to
decide whether the provision is reasonable. Secondly, to decide whether it is
reasonable to make an order now. Claimants must satisfy both questions to
succeed, as in Illot v Mitson (2011).
The Court applies two standards of provision, the surviving spouse standard, and
that which is applied to all other cases. A spouse is treated as if they were
divorcing, and in all other cases the approach is one of maintenance as stated in
s1(2)(a)(b). Maintenance is not subsistence, as stated in Re Christie (1979), but
it does suggest payments which enable the claimant to pay daily living costs, but
generally nothing more than that, Re Dennis (1981). In Re Coventry (1979) it
was suggested that maintenance means such provision as would be reasonable
in the circumstances to enable a claimant to maintain himself in a manner
suitable to those circumstances, and it seems that the provision of a house as a
home for the claimant could fall within that definition.
Section 3(1) provides guidelines that are common to all claimants to assist the
Court in deciding whether reasonable financial provision has been made. It takes
into account various matters including the financial resources and needs of the
claimant and other claimants or beneficiaries either now or in the foreseeable
future. The obligations and responsibilities of the deceased as well as the size
and nature of the net estate and any other matter, are also taken into account.
Particular guidelines apply to a spouse or civil partner of the deceased, to former
spouses who have not remarried, to cohabitants, to children of the deceased,
and to persons maintained by the deceased.
Michelle can claim as a former spouse under the maintenance standard. The
Court will take into account her financial resources and needs. As it seems she is
financially independent, the Court might decide that no additional provision
should be made.
As Alain is the sole beneficiary on intestacy, even though he does not need to
claim under the Act, he should be advised that he is entitled to make
representations to the Court because he would be prejudiced if any of the
claimants succeeded.
Lucinda must satisfy the Court that Harry had been making a substantial
contribution towards her reasonable needs prior to his death. The maintenance
requirement will be satisfied if he provided her with accommodation even though
he also shared that accommodation. The Court would also take into account the
fact that Harry had been paying all of the household bills and that she had given
up work to care for him. She might claim a lump sum order or a transfer of the
property to enable her to continue living in the house with her daughter.
Provided that the Court is satisfied that Sophie was being maintained by Harry,
Lucinda could claim on a lump sum order on her behalf. It would seem unlikely
that periodical payments order would be made as Sophie’s father is making
maintenance contributions.
Question 2(c)
Section 25(1) defines “net estate”, as all the property which the deceased owned
at the time of his death and which he could have disposed of by his will, less the
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funeral, testamentary and administration expenses, and liabilities of the
deceased, including inheritance tax. This will include the assets valued at
£35,000 and the house in which Harry lived with Lucinda. Under s9(1) the
deceased’s severable share in property held on a joint tenancy can also be
ordered to be treated as part of the net estate, as in Jessop v Jessop (1992).
In Murphy v Murphy (2004) the deceased’s main asset was a life insurance policy
taken out jointly with his former wife. The claimant was the deceased’s daughter
who was born shortly after his death and for whom no provision had been made.
She claimed against her father’s severable share in the policy on the basis that it
should be treated as part of his estate. The Court declined to do so because the
deceased had clearly intended it to be paid to the surviving policy holder.
Consequently, there was no severable joint tenancy.
The same principle applies to the life assurance policy taken out by Harry and
Michelle, and which Michelle should retain.
The other claimants could contend that Harry’s severable share in the house
should be included in the “net estate” given the value of the house in relation to
the remainder of Harry’s estate. The Court has to try to balance the claims of
Michelle and the other claimants, taking into account their personal and financial
circumstances.
Question 3(a)
There is a rebuttable presumption that an unattested alteration is made after the
execution of the will, Cooper v Bockett (1846). The presumption can be rebutted
by internal evidence within the will itself where the alteration is made to fill in a
blank space, as in Birch v Birch (1848). Extrinsic evidence in the form of
evidence from the attesting witnesses may rebut the presumption. The Court
considers all of the available evidence when deciding whether the presumption is
rebutted. Helen’s neighbours may be able to provide this evidence by providing
affidavits pursuant to r14 Non-contentious Probate Rules 1987. As the
handwriting is Helen’s and a space appears to have been deliberately left by her
in her in clause 3 of her will, subject to the presumption being rebutted, Peter
and Rose should be advised that Sheila is entitled to receive the £10,000.
The obliteration in clause 4 is not initialled and it is therefore unlikely to have
been made prior to the execution of the will. Section 21 Wills Act 1837 requires
any alteration to a will to be executed in the same way as a will itself is
executed. An alteration made after execution which makes any part of the will
not “apparent” revokes that part of the will if the testator had the intention to
revoke it. “Apparent” means optically apparent on the face of the will itself. The
original wording will not have been obliterated if it can be read by “natural
means”, such as by using a magnifying glass or holding the paper up to the light,
and as stated in Re Itter (1950).
Peter and Rose should be advised that the effect of the obliteration will be that
probate will be granted with a blank space instead of the obliterated words, as In
the Estate of Hamer (1943). Consequently, they should be advised that John and
Dinah will receive nothing.
The alterations made by Helen to clause 5 of her will were presumably made on
the basis that she intended the original wording to be obliterated only if the
replacement wording was valid and the replacement wording was not invalid due
to those alterations not having been executed. In those circumstances, the
doctrine of conditional revocation will apply, and this enables the “forbidden
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methods” such as infra-red photography to be used to ascertain the original
wording, as stated in Re Itter and Sturton v Whetlock (1883).
Peter and Rose should be advised that the replacement wording is not valid, but
if the original wording can be identified, then that will govern the amount of the
legacy and at what age they are entitled to receive the legacy.
Question 3(b)
Clauses 6 and 9 of the will relate to the cottage in St Ives and are contradictory.
The rule in Lassence v Tierney (1849) deals with such a situation where a gift is
made to a legatee absolutely and a trust is also imposed on the same property in
favour of other beneficiaries. In Hancock v Watson (1902) it was stated that
where an absolute gift to a legatee is made and trusts are then imposed on that
absolute interest which fail either from lapse or for another reason, then the
absolute gift takes effect so far as the trusts have failed, to the exclusion of the
residuary legatee or next of kin as the case may be. The rule applies to an
absolute gift of realty or personalty. The effect of the rule is to reconcile two
inconsistent provisions in a will.
Peter and Rose should be advised that as Ivor has now died childless, then the
trust fails and the absolute gift takes effect and so the cottage passes under
Ivor’s will or on his intestacy to his widow Susan. The cottage does not pass to
Helen’s residuary beneficiaries, namely her daughters Rose and Wendy.
Question 3(c)
In clause 9 of her will, Helen gives her residuary estate equally between her
daughters Rose, Angela and Wendy. As Rose and Wendy have survived their
mother then they are entitled to share the residuary estate. Angela has
predeceased Helen, but is survived by her children Kate and Melody.
Section 33 Wills Act 1837 (as amended) provides an exception to the doctrine of
lapse, unless a contrary intention appears in the will. If there is no contrary
intention then the children of Angela would inherit their mother’s share of the
residuary estate per stirpes.
In her will, Helen has not stated what is to happen if any of her daughters
predecease her. Section 33 (2) Wills Act 1837 provides that where a member of
a class of children of a testator predeceases the testator leaving children at the
time of the testator’s death, then the gift takes effect as if the children were
included in the class, and as stated in Ling v Ling (2002).
In Rainbird v Smith (2012) a will disposed of the testator’s residuary estate using
identical wording to that contained in Helen’s will. The Court decided that it was
plainly the testator’s intention to leave the residuary estate only to those
daughters who actually survived, rather than that share passing to the
predeceased daughter’s own children. Consequently, s33 WA 1837 did not apply.
Consequently, Peter and Rose should be advised that Rose and Wendy are each
entitled to a half share of Helen’s residuary estate and Angela’s children are not
entitled to a share. This assumes there is no further express provision in the will
directing Angela’s potential share to her children.
Question 4
The maximum number of executors who can obtain a grant of probate is four.
The appointment cannot be assigned and the grant of probate is issued to the
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executors who prove the will. An executor named in a valid will derives authority
from the will rather than from the grant of probate.
George’s brother, Roger is not an executor but appears to have acted or
intermeddled in the estate as if he was an executor but without authority. He can
only establish his title through a grant of probate and, in the circumstances, the
Court treats him as an executor de son tort, or an executor in his own wrong.
The act of intermeddling has been considered many times by the Courts and in
Sharland v Mildon (1845) was said to include collecting the deceased’s debts. A
more recent example is IRC v Stype Investments (Jersey) Ltd (1982), where the
Court decided that trustees had intermeddled by sending sale proceeds of
English real property outside the jurisdiction, thereby diverting funds out of the
hands of the personal representatives in England. Kalisa should be advised that
Roger is personally liable to the extent of the assets of the estate which he has
received under the provisions contained in s28 Administration of Estates Act
1925 (AEA 1925).
Although Stephen may be in financial difficulties, this alone does not mean that
he cannot act as an executor. However, if he is insolvent the Court would
consider passing him over as an executor by refusing a grant in his favour in
accordance with its power under s116 Senior Courts Act 1981 (SCA 1981).
Where “special circumstances” exist, and the Court considers it necessary or
expedient to do so, it can appoint a replacement administrator. Examples of what
amounts to a “special circumstance” include where an executor is incapable of
acting because he is serving a prison sentence as in Re S (1968), refuses to take
out a grant of probate as in Re Biggs (1966), or is of bad character as in Re
Crippen (1911). In AB v Dobbs (2010) the Court stressed that the power to pass
over an executor should only be exercised in extreme cases.
As Kalisa is the residuary beneficiary of the estate she can apply to the Court
under s50(1) Administration of Justice Act 1985 to replace an executor with a
substitute. An example of where the Court has been willing to make an order
include a situation where there has been a breakdown in trust between
beneficiaries and executors which is likely to affect the administration of the
estate as was the situation in Re Steele (2010) and Khan v Crossland (2012).
As William lacks capacity within the meaning of the Mental Capacity Act 2005 he
cannot take out a grant of representation. As Kalisa is the surviving deputy of
William, she should be advised to apply to the Court of Protection for authority to
enable her to then apply to the Court under r35 (2) and (4) Non Contentious
Probate Rules 1987 (NCPR 1987) for a grant of administration with will annexed
for the use and benefit of William. It is appropriate for her to do so because of
her appointment as William’s guardian and because she is also the residuary
beneficiary.
Kalisa’s daughter Jamila, cannot be forced to act as an executor of the estate,
although the Court can summon her under s112 SCA 1981 to either prove or
renounce probate of her father’s will. Kalisa could ask her daughter to renounce
her appointment in writing, although it should be noted that a renunciation only
takes effect once it is filed with the Court. If Jamila does not renounce, Kalisa
should be advised to request the Court to issue a citation under r47 NCPR 1987
to her daughter to either accept or refuse probate of the will.
Alternatively, Kalisa could be advised to apply for a grant of letters of
administration with will annexed in accordance with the Court’s power under
S116 SCA 1981 to pass over her daughter due to the “special circumstance” that
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exists in relation to the estate. This course appears to be more appropriate in the
circumstances, rather than trying to force her daughter to take out a grant.
As Denezel is a minor he cannot act as an executor until he attains 18 years of
age. As there are other adult executors, a grant of probate would ordinarily be
granted to them with power being reserved to Denezel to prove his father’s will
on reaching 18. However, in the circumstances, it would be appropriate for Kalisa
to be advised to apply to the Court under r32 NCPR 1987 for a grant of letters of
administration with will annexed for the use and benefit of Denezel until he
reaches 18. Kalisa is the appropriate person to do so because she is a parent
with parental responsibility for Denezel, and is also the residuary beneficiary of
the estate.
In conclusion, Kalisa can therefore ensure that her late husband’s estate is
administered by taking out a grant of representation herself pending her son
Denezel reaching 18 years of age.
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