LEVEL 3 – UNIT 8 – LAW OF WILLS AND SUCCESSION
SUGGESTED ANSWERS – JANUARY 2016
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 2016 examinations. 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.
A codicil is a testamentary instrument, normally making minor changes to a
will, which must comply with the same requirements as a will.
2.
Banks v Goodfellow (1870) requires the testator to understand three things,
namely:
 The nature of the act and its effect;
 The extent of the property disposed of/owned;
 Any claims of which he ought to be aware.
3.
A later will revokes an earlier one only to the extent that it is inconsistent
with the earlier will. This may mean that the whole earlier will is revoked,
but this may not be clear, so for the avoidance of doubt, a revocation clause
should be included.
4.
Where an estate is solvent, but there are insufficient funds to pay all
legacies, gifts within the same category will be reduced proportionately.
There is a statutory order in which gifts abate.
5.
Under s.18A Wills Act 1837, the will is read as if the former spouse had died
at the date of the decree absolute. Any gift to her will fail.
6.
Where there is no (valid) will.
7.
Candidates needed to identify any three differences, for example:
 An executor is appointed by will, an administrator is appointed by court
following statutory list;
 An executor derives authority from the will, an administrator from the
grant of letters of administration (so cannot act until grant is issued);
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 An executor is the deceased’s choice, an administrator may not have
been;
 A sole executor may take a grant where the estate has life or minor
interest, but there must be two administrators.
8.
Where the deceased left a (valid) will and there are executors willing and
able to act.
9.
Where there is no attestation clause which raises the presumption of due
execution, or where there is some other doubt about execution, eg where
the testator is blind.
10. Candidates could have chosen from :
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A spouse/civil partner;
Co-habitee for at least 2 years prior to death;
Child of the deceased;
Person treated as a child of the family;
Anyone maintained by the deceased immediately before death;
A former spouse who has not remarried.
SECTION B
Scenario 1 Questions
1.
(a)
The formal requirements are contained in s.9 Wills Act 1837. The will
must be in writing and signed by the testator. It must be signed or
acknowledged in the joint presence of two witnesses and then signed
or acknowledged by both witnesses in the presence of the testator (but
not necessarily in each other’s).
(b)
Here, the will is in writing as Dara has written it himself. Although Dara
has not signed at the end of the will he has begun “Will of me Dara
O’Branagh” which constitutes a signature. A relevant case here is
Wood v Smith (1991) where the court said that the writing of the
name and the dispositions in the will were all one operation. (Other
cases would be acceptable but must be relevant).
Dara has signed in front of two witnesses as both Milton and Gary were
with him when he wrote out his will. Both Milton and Gary have signed
in front of Dara.
2.
(a)
To be a valid Donatio Mortis Causa the gift:
 Must be made in contemplation of death;
 Must be contingent on death;
 The donor must part with some dominion over the property before
death – there must be some delivery of the subject matter.
(b)
Here, Dara knew he was very ill and from his words appeared to be
contemplating death so he has fulfilled the first condition. The gift also
seems to have been conditional on death as Dara has said he would
like the jewellery back if he does not die in order to pay for his care.
Dara has handed over to Karl the key to the box and told him where to
find it in his house. This would appear to be a valid DMC.
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The most relevant case here is Sen v Headley (1991) which dealt with
the gift of a house. Again, other cases could be used provided they are
relevant.
3.
(a)
The pecuniary gift to Frankie would normally lapse as Frankie has
predeceased Dara. However, because he is Dara’s child, s.33 Wills Act
1837 applies and passes this gift to Frankie’s child Sandi.
(b)
Because the vase does not form part of the estate at the date of Dara’s
death this gift will fail (adeem).
Scenario 2 Questions
1.
(a)
Section 18 Wills Act 1837 states that a will is automatically revoked on
marriage or civil partnership. So, Hywel’s will was revoked by his
marriage to Megan in 1990.
(b)
Under s.18(3) Wills Act 1837 a will is not automatically revoked on
marriage or CP if it is made “in expectation of marriage” and this is
what Hywel has attempted to include in his will.
To be effective, the will must state that the testator expects to be
married to a particular person. It is not enough to express a general
intention to marry which is why Hywel’s will is not saved by the clause
he has inserted in his will.
Relevant case law would be Sallis v Jones (1936) which contained a
similar clause which was not explicit enough.
2.
(a)
As Hywel has died intestate s.46 AEA 1925 as amended by Inheritance
and Trustees’s Powers Act 2014 governs the distribution.
Megan is the surviving spouse and Hywel also has children and issue
surviving him. This means that Megan will receive all the personal
chattels, together with a statutory legacy of £250,000. She will also
receive one half of the remainder outright.
(b)
The half of the estate not passing to Megan will pass to Hywel’s
children on statutory trusts. This means it passes to them equally
provided that if any have predeceased then on to their children per
stirpes on attaining 18 or marrying before then.
So here, Russell and Clive will receive one third each, and Nathan’s
one third share will pass to his son Kevin.
3.
Under r22 NCPR 1987 Megan is the first entitled to apply, followed by
Russell and Clive. As there are minors inheriting there will need to be at
least two PRs. As Clive is abroad it would be sensible for Russell to apply
with Megan.
4.
As administrators derive their power from the grant of representation they
have no authority to sell estate assets until this grant is issued.
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Scenario 3 Questions
1.
(a)(i)
Edward may renounce his entitlement to act as executor under s.5
AEA 1925. He must do this in writing and this will form part of the
application for the grant of probate.
(a)(ii) Edward will not be permitted to renounce if he has “intermeddled”,
in other words if he has somehow taken on the role of executor by
dealing with aspects of the estate. Because Edward has begun to
deal with assets in the estate he may not be able to renounce.
In Long and Fever v Symes and Hannam (1832) an executor
advertised in a newspaper for claimants and was held to have
accepted his office through intermeddling. Other case law could be
used here to illustrate the effect of intermeddling.
(b)
Rhod may have “power reserved” to him. This means that he does
not apply for the grant of probate now, but may apply for a new
grant including him in the future should he need or wish to.
2.
This is a specific legacy which is also contingent. This means that Fred must
not only survive Jack but he must also reach 18 before he has any
entitlement to the item. If he dies before 18 then the gift fails and passes
back into Jack’s estate.
3.
This is a pecuniary gift to Patrick. If Patrick has survived Jack he will take
the gift. If he has not, the will contains a substitutionary clause to Simon
and he will inherit the money instead.
4.
An affidavit of plight and condition will be needed because of the tear and
repair to the will under r15 NCPR 1987. It will be necessary to show that
the tear was not an attempt by Jack to revoke the will.
Also, under r14 NCPR an affidavit of plight and condition is required where
there is any “obliteration, interlineation or other alteration”. This is to
provide evidence that the amendments were present at the time the will
was executed to rebut the presumption that they were added later, and are
therefore invalid. So this will also need to be dealt with due to the crossing
out on the front of the will.
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