LEVEL 6 – UNIT 14 - LAW OF WILLS AND SUCCESSION
SUGGESTED ANSWERS – JANUARY 2011
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 January 2011 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
1.
The basic rule is set out in s21 Wills Act 1837, which provides that
unexecuted alterations made after execution of the will have no effect
except insofar as they result in the previous wording not being apparent. It
is clearly important to have rules to ensure that any alteration was
approved by the testator and not made to his will without his knowledge
and consent.
Section 21 does not apply to alterations made before execution of the will.
If the alteration was present when the will was executed, the testator has
shown his approval of it by signing the altered will. Such alterations are
valid, provided they are final rather than deliberative. If made in pencil,
they are presumed to be deliberative and not valid, as the testator is still
deemed to be considering them, unless there is evidence to the contrary –
In the Goods of Bellamy (1886) and Hawkes v Hawkes (1828). The
presumption is stronger if there are both ink and pencil alterations - In the
Goods of Adams (1872).
There is a presumption that any unexecuted alterations were made after the
execution of the will - Cooper v Bockett (1846) and after any codicil Re
Sykes (1873). However, this can be rebutted and the Registrar requires
evidence as to whether any unexecuted alteration was present when the will
was executed. In Keigwin v Keigwin (1843), evidence from a friend of the
testatrix, who drafted the will for her, was accepted to show that an
unexecuted alteration was made before the will was executed. The
presumption is also rebutted where it is clear that the alteration is to fill in a
blank space - Birch v Birch (1848).
An alteration made after execution of the will may in some circumstances
be validated by a later codicil. The codicil has the effect of republishing the
will, so that it speaks from the date of the codicil. However, this only
validates an unexecuted alteration in the will if the codicil refers to the
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alteration in some way - In the Goods of Heath (1892) or there is other
evidence that the alteration was made before the codicil was executed.
If it cannot be shown that any alteration was made before execution, it will
be ineffective under s21, unless executed in the same way as a will, ie by
the testator and witnesses adding their signatures alongside the alteration.
It is sufficient to place their initials in the margin as in In the Goods of
Blewitt (1880). In Re White (1991), alterations were initialled by two
witnesses but the testator himself did not sign or initial them, so they were
not valid. This seems unfortunate but the requirement accords with the rule
that a testator must sign his will to show he approves its contents. Section
21 provides, as an alternative, that the testator and witnesses may sign
under or alongside a memorandum, contained in the will, which refers to
the alteration, as in In the Goods of Treeby (1875).
Where there are unexecuted obliterations, interlineations or other
alterations made after execution of the will, s21 states that they shall not
have any effect, except so far as the words or effect of the will before the
alteration shall not be apparent. In other words, the will is read in its
unaltered form, unless this is impossible. In Re Itter (1950), the court
considered the meaning of the words ‘not apparent’. To be ‘apparent’, the
original words must be capable of being deciphered by an expert by ‘natural
means’, for example by use of a magnifying glass - In the Goods of Brasier
(1899) or by holding the will up to the light, as in Ffinch v Combe (1894).
Where the original words are apparent by such means, the will is admitted
to probate in its original form, ignoring the alteration, despite the fact that,
presumably, the testator no longer wanted the provision to take effect as
originally drafted.
In Re Itter, strips of paper had been pasted over some words and it was
held not to be permissible to use infra-red photography or remove the strips
to read the previous words which were, therefore, 'not apparent'. In such a
situation, probate will be granted with a blank space – In the Goods of
Hamer (1943) so that, in effect, the words that are not apparent are
revoked, which may be what the testator intended.
There are two exceptions to the rule that words that are no longer apparent
are treated as revoked. One is where there is no intention to revoke, as, for
example, if the testator had accidentally spilt ink over the words - Townley
v Watson (1844). This seems entirely appropriate, as it would be odd to
allow an accident to alter the provisions of the will if it is possible to
discover the original wording. The other exception is where the doctrine of
dependent relative revocation (conditional revocation) applies, that is that
the testator only intended to revoke the original provision if the substituted
provision was valid. This is also illustrated by Re Itter, where the testator
pasted strips of paper over the amounts of legacies and wrote new amounts
on top. This indicated that there was no intention to revoke unless the new
amounts were valid. It was held that, in such a situation, any evidence of
the original wording can be used to allow the original gift to take effect (for
example, infra-red photography, a copy of the will, or the witnesses can
testify to the previous wording). It might seem strange to give effect to a
provision that someone intended to alter, as this does not accord with their
wishes, but it is arguably preferable to the provision failing completely.
Some alterations may have the effect of revoking the whole will, for
example, if the signatures are obliterated as in In the Estate of Adams
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(1990) and In the Estate of Morton (1887). This probably reflects what the
testator intended.
The rules are designed to ensure that effect will only be given to alterations
made with the testator's knowledge and approval but, as they may not
always result in his wishes being carried out, it is clearly best to ensure that
all alterations, whenever made, are signed or initialled by the testator and
witnessed, to make clear what his true intentions are.
2.
The general rule is that a testator is free to revoke his will at any time
before he dies. A will cannot be made irrevocable - Vynior's Case (1609).
The doctrine of mutual wills does not affect the revocable nature of a will
but does mean that, if certain conditions are fulfilled, effect may be given,
indirectly, to the provisions of a revoked will.
Mutual wills occur when two people make wills, usually in similar terms (or
they may make a joint will in which both sets of provisions are made) and
agree that neither will change their will without the consent of the other. If
one dies without changing their will, the other is not allowed to defeat the
agreement. Although the survivor's will can be changed or revoked, when
he or she dies effect will be given to the agreement and his or her personal
representatives will hold the relevant property on trust for the person/s who
benefited under the mutual will. This was explained in the case of Stone v
Hoskins (1905).
For the doctrine to apply, there must have been a clear and definite
agreement that neither party would change their will. In Re Hagger (1930),
the joint will contained a statement that it should not be revoked or
changed without the agreement of both parties. This is the easiest way to
prove that the doctrine applies but it can be proved by other evidence. It is
not enough just to make wills in similar terms. In Re Oldham (1925), a
husband and wife made wills on the same day leaving property to each
other and making the same gift over if the other predeceased. After the
husband's death, the wife remarried and made a new will in different terms.
It was held that the mere fact that the wills had identical provisions was not
enough to indicate an agreement not to change them. The same view was
taken in the more recent cases of Re Goodchild (1997) and Birch v Curtis
(2002).
The arrangement can be changed by mutual agreement between the
parties. If one party unilaterally changes their will, this releases the other
from the obligation, as in Stone v Hoskins (1905), where one party revoked
their will. An alteration without the other's consent also invalidates the
effect of the agreement - Re Hobley (1997).
On the death of the first to die, if he dies without changing his will, the
survivor's relevant property becomes subject to a constructive trust to give
effect to the provisions of the mutual will. In Dufour v Pereira (1769), it was
said that, after the first death, the other party to the agreement would be
guilty of fraud if he departed from it and so he could not 'unbind himself'
and became a trustee.
As the constructive trust arises on the death of the first to die, it was held in
Re Hagger (1930) that the interest of a beneficiary who died after the death
of first testator of a joint will, but before the death of the second, did not
lapse, as the interest vested when the trust arose on the first death.
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Any later will is still valid and is admitted to probate and any appointment
of executors by the later will is effective. However, they hold the relevant
property on constructive trust to give effect to the mutual will, rather than
under the terms of the later will. Therefore, although a mutual will, like any
other will, is always revocable, the doctrine of mutual wills gets around this
by ensuring that the agreed provisions are carried out via a constructive
trust.
In Re Cleaver (1981), a couple made a number of successive wills, leaving
their property to each other and, in the event of the other predeceasing, to
the husband's children. The original wills left gifts to the children in equal
shares but, under the last wills made before the husband's death, the
daughter was to receive only a life interest. After the husband's death, the
wife changed her will several times and finally left everything to the
husband's daughter and daughter's husband, excluding the other children.
The others succeeded in obtaining a declaration from the court that valid
mutual wills had been created and that, therefore, the estate was held in
accordance with the terms of the mutual wills.
In Stone v Hoskins, the court referred to the second person to die not being
able to defeat the agreement, having taken a benefit under the
arrangement. However, in Re Dale (1993), it was held that it was not
necessary for the survivor to have personally benefited under the will of the
first to die in order for the doctrine to apply. A husband and wife had made
wills, each leaving their property to the husband's daughter and the wife's
son. After the husband's death, the wife made a new will, revoking the
earlier one and leaving most of her estate to her son, with just a bequest to
the husband's daughter. The court stated that the fraud did not have to
consist in taking a personal benefit. It could arise from a failure to carry out
the agreement once one party had died, believing that it would be carried
out by the other. To prevent such fraud, the court imposes a constructive
trust to ensure that the arrangement takes effect.
In Re Goodchild, it was stated obiter that the trust which arises in the case
of mutual wills would not be destroyed by the remarriage of the surviving
party.
One difficult issue is determining what property is caught by the trust. This
could be just the property of the first to die or could include some or all of
the property of the survivor. This depends on the way the agreement is
construed. It is advisable for the agreement to make clear the extent to
which the survivor is free to deal with the property inherited from the other
and/or his own property during his life. This was done in Carvel Foundation
v Carvel (2007). Otherwise, there is the obiter suggestion from the
Australian case of Birmingham v Renfrew (1937) that the survivor is free to
use the property during his lifetime, provided he does not dispose of it in
order to defeat the trust, but that after his death it is held in accordance
with the agreement.
Mutual wills provide a way of ensuring that a definite agreement as to how
property is to be left cannot be defeated by the surviving party, merely
because his or her will always remains revocable.
3.
When construing a will, the court tries to find the meaning from within the
will itself - Re Whitrick (1957). However, there are circumstances in which
the court can use extrinsic evidence to construe the will.
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The traditional approach of the courts, as explained in Perrin v Morgan
(1943), was that the question was not what the testator meant to do when
he made his will but what his 'expressed intentions' were. This means that,
in general, the court interprets the words in the will rather than trying to
guess what the testator might have meant. The reason behind this is that
the court feels it must not write the will for the testator but must try to
work out what he meant from the actual words he used.
This approach is illustrated by cases such as Scale v Rawlins (1892) and Re
Rowland (1963). In the latter, a home-made will referred to the death of his
wife 'preceding or coinciding' with his own. They died in the same boating
accident and it was held that his wife's death had not coincided with his as
it was not clear that they died at precisely the same moment. It seems that
the tesator's intentions were frustrated, as his property passed to the wife's
family and not his own. Cases such as this show the disadvantage with this
approach, as it could be said to ignore what were in all probability the
testator's intentions. A recent illustration of a will not covering the
eventuality which occurred is the case of Re Jones (1998).
The court will look at the will as a whole - Re Whitrick - to see if other parts
help with interpreting the meaning of a particular part. In that case, the
testatrix left her estate to her husband but with a substitutional gift in the
event of them 'both dying at the same time'. The husband predeceased and
the Court of Appeal held that it was clear from the will as a whole that the
substitutional gift was intended to take effect if her husband did not survive
her. This seems more likely to accord with the true intentions than the
results in the cases referred to above.
Under a literal approach to construction, the courts usually give words their
ordinary or 'usual' dictionary meaning but there are difficulties where the
words used could have more than one meaning, as with the term 'money' in
Perrin v Morgan (1943). Here, the court tries to adopt the meaning it
considers the testator intended, judged on the will itself and extrinsic
evidence so far as admissible.
Sometimes, the courts apply a 'secondary' meaning, as for example in In Re
Smalley (1929), where a will left property to 'my wife Eliza Ann Smalley'.
His wife's name was actually Mary but he was cohabiting with someone
called Eliza Ann and it was held that he used the word 'wife' as meaning
'common law wife'. Another example is Thorn v Dickens (1906). Similarly,
there are cases where a testator intends a particular meaning current
among a group to which he belongs, as in Shore v Wilson (1842) - 'godly
persons' given the meaning current among the sect to which he belonged.
Technical words are usually given their technical meaning, for example, the
words 'all my personal estate' did not include real property in Re Cook
(1948). There are also subsidiary principles of construction, such as the
golden rule, ejusdem generis, falsa demonstratio and particular rules where
there are inconsistent clauses. Account will also be taken of s24 Wills Act
1837, which provides that a will speaks from death in respect of property,
unless the will shows a contrary intention.
Although the courts try to construe the words in the will itself, in certain
circumstances, the cases held that extrinsic evidence was admissible to
assist in finding the intended meaning. For example, the court could adopt
the 'armchair rule' to look at the circumstances surrounding the testator
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when he made the will - Boyes v Cook (1880), as illustrated by Charter v
Charter (1874) and Re Jackson (1933).
The Law Reform Committee's Nineteenth Report recommended that the
literal approach should be abandoned in favour of trying to uphold the
testator's intentions and section 21(1) Adminstration of Justice Act 1982
now covers the admission of extrinsic evidence. It largely codifies the
previous law but extends it by allowing direct evidence of the testator's
intention (for example, instructions for the will or statements as to who he
intended to benefit) in situations where it was not previously admissible. It
provides that the court can admit extrinsic evidence, including evidence of
the testator's intention, insofar as any part of the will is meaningless s21(1)(a), or the language used is ambiguous on the face of the will –
s21(1)(b) (patent ambiguity), or evidence other than evidence of the
testator’s intention shows that the language used is ambiguous in the light
of surrounding circumstances – s21(1)(c) (latent ambiguity).
Section 21(1)(a) has a narrow application but would cover situations such
as Kell v Charmer (1856), where provisions were written in symbols used in
the jewellery trade.
s21(1)(b) would be useful in cases such as Perrin v Morgan (1943) to
determine what the testatrix intended by a gift of 'moneys'. However, in Re
Williams (1985), the first case on s21(1)(b), the extrinsic evidence did not
assist in finding what the testatrix had intended. It was useful in Westland v
Lilis (2003), where a will left legacies to nine people listed as (a) to (i) and
a codicil stated that beneficiaries (a),(c),(c),(d) should be removed. The
court had to decide if it should read (a),(b),(c)(d) or (a),(c)(d). Extrinsic
evidence showed that it was unlikely that the testator meant to revoke the
gift to beneficiary (b), who was very close to him.
s21(1)(c) covers situations such as Charter v Charter, where a testator
habitually called someone by another name and Re Jackson, where the
testatrix left property to ‘my nephew Arthur Murphy’ but had three nephews
by that name. Extrinsic evidence showed that she intended her illegitimate
nephew. Circumstantial and direct evidence can be admitted, but direct
evidence cannot be admitted to create an ambiguity.
In Pinnel v Anison (2005), D left his residuary estate to his brother P and
sister H. H was a friend rather than a sister and her address was correctly
stated in the will. D had a sister living at a different address. Extrinsic
evidence of D's relationships with H and his sister suggested that H had
been put in mistakenly instead of the sister.
The admission of extrinsic evidence means that a testator's real intentions
are more likely to be carried out than under a strict literal interpretation of
the wording in the will.
4(a) Under s31 Trustee Act 1925, personal representatives have power to apply
income of the estate for the maintenance, education or benefit of a minor or
to pay it to their parent or guardian for those purposes. A minor beneficiary
cannot give a valid receipt for the money, although express powers
sometimes provide that a beneficiary can give a valid receipt once he
reaches 16. Any income not used is accumulated, the accumulations being
available for maintenance in later years. This power aims to ensure that
beneficiaries have adequate money to live on whilst under 18. However,
there is no power under the section to pay income where there is a prior life
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interest, as the income belongs to the life tenant. This could be amended by
an express power in appropriate cases.
Personal representatives must have regard to the beneficiary’s age,
requirements and circumstances and consider what other funds are
available for his or her maintenance and the liability of any other person to
maintain the beneficiary. It is common for express powers to provide that a
personal representative may use his absolute discretion in relation to
payments from income and ignore the requirement to consider what other
funds might be available. This gives wider scope for conferring appropriate
benefit.
Under s31, beneficiaries over 18 but with contingent interests are entitled
to the income, unless expressly excluded. It seems appropriate to ensure
that they will have some money to live on whilst waiting for their interest to
vest.
Payment of income under s31 only applies to contingent gifts if they carry
income. The rules on which gifts carry income are complex and, as general
legacies do not normally do so, there could be situations where a
beneficiary cannot receive income even if in financial difficulty. It is,
therefore, better to make express provision as to whether or not income
can be used.
Under s32 Trustee Act 1925, personal representatives may advance up to
one half of the presumptive share of a beneficiary with an interest in
capital, even if contingent. This enables benefit to be conferred when
appropriate rather than waiting until the beneficiary becomes absolutely
entitled. As only half a beneficiary's share can be advanced, wills sometimes
extend this to allow the full share to be advanced.
Capital can be advanced for the beneficiary’s 'advancement or benefit',
which has a wide meaning. Pilkington v IRC (1962) held that it meant
anything that improves the material situation of the beneficiary, including
settling property on new trusts. The money can be paid directly to the
beneficiary if over 18 and the personal representatives reasonably believe
he can be trusted - Re Pauling's Settlement Trusts (1963). Otherwise, it
should be applied to the purpose. A minor beneficiary cannot give a valid
receipt unless expressly provided for. Any advancement must be brought
into account when he becomes entitled, that is, deducted from his share of
the estate. Should a beneficiary with a contingent interest die before
becoming entitled, the money would not have to be repaid.
Consent to the advancement is required from anyone with a prior interest,
although this requirement could be removed in an express power. An
express power could remove the requirement for the sum to be brought into
account. It is also sometimes expressly provided that capital may be paid to
a beneficiary with only a life interest, as a useful safeguard in case income
is not sufficient.
Express powers may be preferable to statutory powers as they can give
wider scope for the trustees to exercise their discretion for the benefit of
beneficiaries.
(b) The rules regarding carrying on a business are important where a deceased
was a sole trader, as there is no-one to continue it on his death.
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In the absence of express powers, the personal representatives only have
power to continue the business with a view to selling it as a going concern.
It is, therefore, advisable to include an express power to continue the
business other than with a view to sale, for example, to pass it to a
beneficiary. Personal representatives who carry on a business other than as
authorised are personally liable for any losses. It is also a good idea to
appoint special personal representatives with the particular expertise to
continue the business.
Any sale should normally occur by the end of the executor's year - Re
Crowther (1895). If personal representatives are authorised to postpone the
sale of the business, they have implied power to carry the business on in
the meantime - Re Chancellor (1884).
Under the general rules, only assets used in the business at the date of
death can be used to continue it - Cutbush v Cutbush (1839). This can
cause cash-flow problems, so an express power should authorise the
personal representatives to use other assets from the estate.
Personal representatives carrying on a business are personally liable on any
contracts they make in doing so (Owen v Delamere (1872)) and so can be
personally sued for any business debts they incur. However, they may be
entitled to be indemnified out of the assets of the estate if they are
authorised to carry on the business or if creditors of the estate have given
their consent to this. Where a personal representative is entitled to an
indemnity from the estate assets, a creditor may, by subrogation to that
right, claim payment from those assets.
If the business is being continued with a view to sale, the personal
representatives' right to be indemnified takes priority over the claims of
other creditors of the estate. If they have been authorised by the will to
carry on the business and are doing so other than with a view to sale, their
entitlement to reimbursement ranks after the creditors of the estate but
before the claims of beneficiaries. In any case, the personal representatives
are only entitled to be reimbursed from the assets they are authorised to
use in the business - Cutbush v Cutbush.
Personal representatives have a right to be indemnified in priority to the
claims of any creditor of the estate who authorised the continuance of the
business, not merely acquiesced in it - Re Oxley (1914). Such a creditor is
entitled to be paid from profits of the business. If a creditor did not agree to
the business being carried on (other than with a view to sale), he is entitled
to be paid out of the assets that belonged to the business at the date of
death, but not from the profits while the business is continued - Dowse v
Gorton (1891), and the personal representative has no right to be
indemnified in priority to that creditor.
As the powers to continue the business are limited and the position of the
personal representatives who do so can be precarious, appropriate express
provisions are advisable in the wills of sole traders.
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Question 1
SECTION B
(a) When Andrew formed a civil partnership, this had the effect of revoking his
will under s18 Wills Act 1837, as amended. (He could not have made the
will expecting to form the civil partnership as this was not possible prior to
the Civil Partnership Act 2004, which came into force on 5 December 2005.)
Andrew has, therefore, died intestate and his estate will be dealt with under
the Administration of Estates Act 1925 (AEA), as amended, and the
Intestates' Estates Act 1952 (IEA).
The house owned as tenants in common will not pass automatically to
Gareth as the right of survivorship does not apply. He is entitled to half the
value. The other half, £200,000, forms part of the estate to be distributed
under the intestacy rules.
The order of those entitled to benefit on intestacy is set out in s46 AEA. The
Civil Partnership Act 2004 gives civil partners the same rights as spouses.
The rights of the surviving civil partner, Gareth, depend on who else
survives Andrew. Where, as in this case, there are no issue but there are
parents or brothers and sisters of the whole blood, or their issue, the
surviving civil partner receives personal chattels, a statutory legacy of
£450,000 (with interest from the date of death) and one half of the
residuary estate absolutely, provided he survives by 28 days.
Personal chattels are defined in s55(1)(x) AEA, which expressly excludes
chattels used for business. Gareth will receive the personal belongings
worth £25,000. Furniture is expressly mentioned in s55 and, although
described as a collection, the antique furniture is likely to pass to Gareth. In
Re Crispin (1974), a valuable collection of clocks and watches was held to
fall within the description, as the items were by their nature articles of
personal use. Caravans are not mentioned in s55 but in Re Chaplin (1950),
a motor yacht, used for a hobby, was held to be included. However, in Re
MacCulloch (1981), a yacht used more for business than pleasure was not
considered a personal chattel. It seems that the caravan is used more for
the business purpose of letting it out than for personal use and so will not
pass to Gareth as a personal chattel.
The remaining assets will be used for payment of debts and expenses.
Gareth will then receive his statutory legacy of £450,000 and half of the
residue absolutely. Andrew's half share of the house might be appropriated
to Gareth as part of his entitlement.
The other half of residue will, as Andrew had no issue or living parents, be
held for his brothers and sisters of the whole blood or their issue on the
statutory trusts which are explained in s47 AEA. The property is held in
equal shares for all the brothers and sisters of the whole blood living at
Andrew’s death (of whom there are none) and for the living issue of any
brother or sister who predeceased per stirpes. Per stirpes means that the
issue of the deceased brothers David and Evan take equally between them,
contingent on attaining 18 or earlier marriage or formation of a civil
partnership, the share their parent would have taken had he been alive at
Andrew’s death.
Applying this to the facts, Bryn, as David's only son, will take one half of the
remaining estate not taken by Gareth. As he is over 18, he has a vested
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interest. Evan's half will be divided equally between Hannah (whose interest
is vested as she is over 18) and Ffin, whose interest is contingent on
reaching 18, marrying or forming a civil partnership. The fact that Hannah
is the adopted daughter of Evan makes no difference as, under s67
Adoption and Children Act 2002, an adopted child counts as a child of her
adoptive parents for intestacy purposes.
Should Ffin die in December 2011, he would still be under 18 and, unless he
had married or formed a civil partnership, he would not have obtained a
vested interest. His share would pass as if he had predeceased Andrew.
Therefore, his sister Hannah would be entitled to the whole of their father
Evan's share of the estate and so would receive half of the one half share of
residue not taken by Gareth.
(b) Charlotte will not be entitled under the intestacy rules as she is not a blood
relative of Andrew's. She may be able to claim under the Inheritance
(Provision for Family and Dependants) Act 1975 (IPFDA), as amended, on
the basis that the rules of intestacy do not make reasonable financial
provision for her from Andrew's estate. She has locus standi under s1(1)(e),
as a person who, immediately before the death of the deceased, was
(otherwise than for full valuable consideration) being wholly maintained by
him or was receiving a substantial contribution, in money or money’s worth,
towards her reasonable needs. In Bishop v Plumley (1991), it was held that
providing a home for someone amounted to a substantial contribution to
their needs. For the year prior to his death, Andrew had been paying her
nursing home fees, which would be a substantial contribution to her needs,
and Andrew was not receiving consideration for this. The standard would be
reasonable provision for maintenance.
The court must consider the factors laid down in s3(1) IPFDA. These include
Charlotte's financial resources and needs. She has no savings and only a
state pension and can probably not afford to pay the nursing home fees
from her own resources. The court will also consider the resources and
needs of other beneficiaries and the size of the estate, which is
considerable. Account will be taken of any obligations (including moral
ones) and responsibilities of Andrew towards her - she was Gareth's mother
rather than Andrew's. The court will also take account of any physical or
mental disability and this may be relevant, given that she is in a nursing
home.
Under the particular factors in s3(4) for a person maintained, the court
must have regard to the extent to which, the basis on which and the length
of time for which Andrew assumed responsibility for maintaining her. He
had paid her nursing home fees for only one year but she had lived with
Andrew and Gareth for several years before that. It appears that Andrew
assumed the responsibility as Gareth did not have the money to do so and
the court might feel that Andrew's obligations to her were not substantial
and that her son, Gareth, could now better afford to support her, having
inherited a large share of Andrew's estate.
Question 2
If Peter's 2006 will is valid, everything will pass to Tina. As it was signed at the
solicitor's office, it can be assumed that it complied with the requirements of s9
Wills Act 1837 (WA 1837).
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However, Peter must have had the mental capacity to make a will, knowledge
and approval and there must have been no undue influence. The legal burden of
proof of capacity and knowledge and approval rests on Tina, as the person
seeking to uphold the will.
However, it seems rational on its face and there will be a presumption of
capacity, so that it would be for Ursula to bring evidence to the contrary. The
Mental Capacity Act 2005 (MCA) also states in s1 that a person must be assumed
to have capacity unless it is established that he lacks it. Being elderly and in poor
health does not necessarily mean he lacked capacity to make a will. In In the
Estate of Park (deceased) (1954), it was suggested that a lower degree of
capacity was necessary for a simple will, such as Peter’s, than a complicated one.
Even a person who generally lacks capacity may make a valid will in a lucid
interval - Cartwright v Cartwright (1793).
MCA contains general rules for judging mental competence but does not override
existing case law. Section 2(1) refers to a person being unable to make a
decision because of an impairment of or disturbance in the functioning of the
mind or brain. Section 3(1) provides that a person is unable to make a decision if
he is unable to understand the relevant information, retain and use or weigh that
information.
The main case on capacity to make a will is Banks v Goodfellow (1870). It lays
down that the testator must understand that he is making a will to take effect on
death. Peter's words to the solicitor suggest this was the case. He must also
have understood the extent of the property he had to dispose of (no indication
on the facts) and the moral claims on him. In Harwood v Baker (1840), the
testator left everything to his second wife to the exclusion of other family
members. He was shown to be suffering from torpor of the brain and it was held
that he did not have sufficient recollection of other family members, so the will
was invalid. As Peter sometimes forgot the existence of his daughter Ursula, he
may have lacked capacity. If so, the 2006 will would be invalid.
There is a further requirement that Peter had knowledge and approval of his will,
that is, he understood and agreed to the contents. Execution prima facie
indicates knowledge and approval - Guardhouse v Blackburn (1866) but not if
there are suspicious circumstances. In Barry v Butlin (1838), it was said that the
court should be suspicious where a person writes or prepares a will under which
he takes a benefit and the will should not be upheld unless the suspicion is
removed. In Wintle v Nye (1959), it was said that the degree of suspicion will
vary with the circumstances. Tina gave the instructions for the preparation of the
will, so there are suspicious circumstances which, if not dispelled, may cause the
will to be set aside. In Re Rowinska (2006), a will of a Polish testatrix, whose
English was poor, was rejected as invalid for want of knowledge and approval. It
was prepared on the computer of the sole beneficiary (the person who fixed her
television ariel) and witnessed by his friends.
However, in Fuller v Strum (2002), a will drawn up by one of the main
beneficiaries was upheld, despite evidence from a handwriting expert that the
testator’s signature may have been forged. In Sherrington v Sherrington (2005)
a solicitor's will, benefiting his second wife to the exclusion of his children from a
previous marriage, was upheld despite being drawn up by his second wife's
daughter. These cases suggest that it may be difficult to establish a lack of
knowledge and approval and Peter's words to the solicitor show he understood
that the will left everything to Tina.
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The will might be challenged on the basis of undue influence, which is also hard
to prove. It was defined in Hall v Hall (1868), where Lord Penzance stated that a
testator 'may be led but not driven'. Actual undue influence must be proved –
Parfitt v Lawless (1872). In Killick v Pountney and another (1999), undue
influence was found where the testator, who was in a confused state, seemed to
fear the defendant, who had banned others from visiting the testator and had
also been involved in giving instructions to the solicitors who drew up the will.
Although it can be difficult to prove undue influence or lack of knowledge and
approval, it is generally easier to do so in the case of a testator whose mental
capacity is in doubt and it may be that the 2006 will would be set aside as
invalid.
Peter would then have died intestate, if his 2000 will was validly revoked, and
Tina and Ursula would take everything equally as his only living relatives. Under
s20 WA 1837, a will may be revoked by burning, tearing or otherwise destroying
it, if done by the testator or by another person in his presence and by his
direction. Peter's will was burnt so there is sufficient destruction (contrast Cheese
v Lovejoy (1877)). It was done in his presence and, it seems, with his
agreement, which was given before the destruction, as required (contrast Gill v
Gill (1909)).
However, Peter must have also have had the intention to revoke, which requires
the same mental capacity as for making a will. It would not be revoked if it were
found that he lacked capacity at the time - Brunt v Brunt (1873). Even if he had
the capacity, he may not have had the necessary intention. In Re Southerden
(1925), a testator threw his will in the fire, saying to his wife, in whose favour he
had made it, that it was 'no good now', as they had returned safely from a trip
and he wrongly believed she would inherit everything under an intestacy. It was
held that, as he destroyed the will based on a mistaken belief, he lacked the
intention to revoke. Sally could provide evidence that Peter only agreed to the
destruction of his will after being told it was invalid. It may therefore not have
been validly revoked and Oscar and Rose could provide evidence that it left
£5,000 to charity and everything to Tina and Ursula equally.
Question 3
(a) The court has power under s121(1) Senior Courts Act (formerly known as
the Supreme Court Act) 1981 to call in a grant which was wrongly made, for
example, where a later will has been found, as with Zara's estate. The
effect of the revocation is that the original personal representative, William,
would no longer have power to act.
However, s27 Administration of Estates Act 1925 protects the personal
representative and those who dealt with him, provided they acted in good
faith. Section 27(2) provides that all payments to the personal
representative made before the revocation of the grant are a valid
discharge to a person who made them in good faith, that is believing the
grant to be valid. So, assuming Victor paid the debt to William in good faith,
Victor's debt is discharged and he could not be asked to make the payment
again.
Section 27(2) also provides that a personal representative acting under a
grant which is later revoked, can reimburse himself in respect of any
payments he made, which could properly have been made by the person to
whom a later grant of representation is made, so William can be reimbursed
for the money he spent on the funeral.
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Section 27(1) provides that a person making a payment in good faith under
a grant that is later found to be defective or invalid is indemnified and
protected so, provided William had no reason to suppose that there was a
later will, he would be protected not only in relation to payment of the gas
bill, which would have been properly paid under the later grant but also in
relation to the legacy of £1,000 paid to Frederick, even though Frederick is
not entitled to anything under the later will.
However, Frederick is not protected. Where assets of an estate have been
distributed to person/s who were not in fact entitled, as with the legacy to
Frederick, those correctly entitled under the 2008 will could recover the
assets from him. This could be achieved using the tracing rules and
following the money into his hands to make a proprietary claim to the
money itself, if identifiable, as in Re Diplock (1948). Alternatively, the
rightful beneficiaries could bring a personal claim against Frederick, as in
Ministry of Health v Simpson (1951).
A grant of probate of the 2008 will would be made to Ann as the sole
executrix. A sole executrix can administer an estate even where there is a
minority. In relation to completing the administration of George's estate, s7
Administration of Estates Act 1925 provides that, where a sole or last
surviving executor dies in office having taken out the grant of probate, if he
has appointed an executor who takes out a grant of probate to his estate,
that executor also becomes executor to the earlier estate. This is known as
the ‘chain of representation’. Assuming Ann takes out a grant of probate to
Zara's estate, she will also complete the administration of George's estate
without the need for a further grant of probate with respect to that estate.
Ann could not accept one appointment and renounce the other – In the
Goods of Perry (1840). However, if she did not wish to act in relation to
George's estate but was willing to act for Zara, she could renounce probate
and take a grant of letters of administration with the will annexed as, under
r20 Non-Contentious Probate Rules 1987 (NCPR), the first persons entitled
to a grant (after the person appointed in the will) are the trustees of the
residuary estate.
(b) If Ann, the sole executrix named in the 2008 will, had predeceased Zara,
there would need to be a grant of letters of administration with the will
annexed to Zara's estate. As Charlene is a minor the grant of letters of
adminstration should be made to at least two people. Under the order of
entitlement set out in r20 NCPR, the first person entitled is the person
appointed in the will - Ann - and the next category would be the trustees of
the residuary estate - again, Ann - but she has predeceased. The next
category are the residuary beneficiaries, in this case Dan, Edward and
Charlene. Charlene could not apply as she is under 18. Dan and Edward
could apply to act as administrators but Dan has just been sentenced to two
years in prison following a conviction for fraud and may well be passed
over. Under s116 Senior Courts Act 1981, the court can pass over a person
entitled to a grant in special circumstances where it appears necessary or
expedient. These include where a person is incapable of acting, or is of bad
character, as in Re S (1968) - serving a life sentence for manslaughter and
Re Crippen (1911). In In the Goods of Wright (1898), an executor
disappeared and there was a warrant for his arrest on a charge of
embezzlement and he was passed over. It seems likely that this will be the
case with Dan.
As a second person is needed to act with Edward, the next in the order of
entitlement under r20 are other beneficiaries under the will, namely Holly
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and Beth. Either Holly or Beth could apply and a grant could be made to
either without notice to the other. It will be necessary in the oath to 'clear
off' those in higher categories, for example by explaining that Ann has died
and Charlene is a minor.
In relation to completing the administration of George's estate, there would
be no chain of representation, as the executrix appointed by Zara's later will
predeceased. The chain of representation is broken where the acting
executor (Zara) does not appoint an executor or there is no executor who
takes a grant. Therefore, a grant of letters of adminstration with the will
annexed de bonis non administratis to George's estate would be needed and
his wife Sophie, as residuary beneficiary, would be entitled to apply for the
grant under r20.
Question 4
Under s9 Wills Act 1837, there is a requirement that the testatrix, Iris, sign her
will or acknowledge her signature in the presence of two witnesses, present at
the same time and that the witnesses sign in her presence. It appears that Iris
did not actually sign in the presence of the witnesses so the question is whether
she acknowledged her signature to them. It was stated in Daintree v Butcher
(1888), that it was sufficient acknowledgement if the document is placed before
the witnesses when the testator requests that they sign, so that the witnesses
can see the signature of the testator if they so wish. It is not a valid
acknowledgement if the testator's signature is covered by paper as in Re
Gunstan (1882). It is not necessary for the witnesses to see the contents of the
will (or even to know it is a will), so the fact that everything but the signature
was covered by a magazine does not matter. In Weatherhill v Pearce (1995),
there was found to be an acknowledgement where the testatrix told the
witnesses that she had come to execute her will, which she then showed them.
There was a valid acknowledgement by Iris as it was made before at least two
witnesses present at the same time.
The witnesses must sign after the acknowledgement, which it seems Jock and
Kelly did, and must do so in Iris's presence. Jock, Kelly and Lana may be asked
for affidavits of due execution. In Weatherhiill v Pearce and Channon v Perkins
(2005), the court applied the maxim omnia praesumuntur rite et sollemniter esse
- it is presumed that all formalities have been complied with.
Jock and Kelly have witnessed the will and under s15 Wills Act a witness cannot
take any benefit under the will, although the will itself is valid. It is irrelevant
that they did not know that they were beneficiaries when they witnessed it. This
does not prevent them from acting as executors or trustees – Re Ray’s Will Trust
(1936). Section 1 Wills Act 1968 provides that, where there are more than two
witnesses, the attestation by a beneficiary can be ignored if the will would still be
validly executed. However, two of Iris's witnesses are named as beneficiaries
and, if both their signatures were ignored, the will would not be valid. Therefore,
neither Jock nor Kelly's signature can be ignored and the gifts to them will fail.
As Roy has been convicted of murdering Iris, the gift to him will fail under the
forfeiture rules - Re Crippen (1911). Although the Forfeiture Act 1982 allows the
court a discretion to grant relief from forfeiture, this does not apply when the
conviction is for murder.
The estate is solvent as the value of the assets clearly exceeds the debts. The
gifts to Wendy, Toby and Vince are general legacies and there is nothing to
prevent any of them from benefiting if there are sufficient assets. Mary has been
Page 14 of 15
given £10,000 from Iris’s Southern Stone Building Society account which has
only £1,000 in it. This is a demonstrative legacy, described in Ashburner v
Macguire (1786) as ‘something of a hybrid’. It is in the nature of a general legacy
but indicates a specific fund to be used for its payment. If that fund exists, the
legacy is paid from it so far as possible, as a specific gift, so Mary will receive the
£1,000 left in the account and this part of the gift would not abate with general
legacies. Instead of the balance of £9,000 adeeming as a specific legacy would, it
is paid as a general legacy, assuming the residuary estate is sufficient.
The gift of the cottage is a specific devise. Section 35 Administration of Estates
Act 1925 (AEA) provides that property charged with a debt during the testator’s
lifetime will be liable for the payment of the debt, unless a contrary intention is
shown. If Iris had wanted Neil to take the cottage free of the mortgage, her will
should have made this clear. As it did not, Neil inherits the cottage subject to the
mortgage, which will not be settled out of the residuary estate.
Section 24 Wills Act 1837 provides that a will speaks from death as regards
property and so would normally be treated as referring to the clock and car she
owned at death, but this is unless a contrary intention appears from the will. The
word 'my' tends to suggest a specific gift of the item owned at the date of the
will and, if it is no longer owned at death, the gift will adeem, as in Re Sikes
(1927), where the words 'my piano' were taken to refer to the one owned when
the will was made. Iris used the word 'my' suggesting the gifts are specific. She
still owned the clock at her death and it will pass to Zia. Although the word 'my'
is not conclusive, the reference to Paul loving old cars suggests it was a gift of
the old car she owned at the time of the will. The gift therefore adeems and Paul
is not entitled to the Hondai car, which will form part of the residue of the estate.
The value of the car, £9,000, would be added to the £15,000 of savings and,
after paying the debts of £4,000, £20,000 remains that has not been specifically
given. This would not be sufficient to settle all the valid general legacies in full as
they total £30,000 (£3,000 to Wendy, £9,000 each to Toby and Vince and the
balance of £9,000 of the gift to Mary which is not covered by the sum in the
Building Society account). Where assets are not sufficient to satisfy all the debts
and all the gifts in the will, the order of assets to be used for debts is set out in
s34 and Part II Schedule 1 Administration of Estates Act 1925. Under this,
general legacies are used before specific gifts and abate pro rata. This means
that the gifts to Wendy, Toby and Vince and the balance of Mary's gift, will all be
reduced by one third.
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