LEVEL 6 - UNIT 14 – LAW OF WILLS AND SUCCESSION
SUGGESTED ANSWERS - JANUARY 2012
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 2012 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
The court has power under s121 Senior Courts Act (formerly known as Supreme
Court Act) 1981 to call in a grant which should not have been made or contains
an error.
A grant may have been wrongly made for a number of reasons. It may be
revoked because it was issued on the basis of a false statement, whether
intentionally false or not. For example, in In the Estate of Napier (1809), a grant
was issued in the belief that the person had died in battle but he was, in fact, still
alive. In In the Goods of Moore (1845), the grant was revoked as it had been
issued to a person claiming to be the deceased's widow but who was not in fact
married to the deceased.
Another reason for revocation is if the grant was made to the wrong person, for
example, where it was believed that the deceased had died intestate and a valid
will is then found; or where a later will is found after probate has been granted of
an earlier will; or where probate was granted and the will later found to be
invalid.
A grant may also be revoked if its grant was irregular as a result of an
administrative error.
In other cases, the grant may have been correctly made but it later becomes
appropriate for it to be revoked. For example, one or more of the grantees may
become physically or mentally incapable of acting, as in In the Goods of Galbraith
(1951), where both executors became too infirm to act. If there are other
personal representative/s, the grant is revoked and a new grant is issued to the
remaining personal representatives. If a grantee wishes to retire, the grant can
be revoked if the court thinks there is sufficient reason.
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A grant may be revoked where the grantee disappears or leaves the jurisdiction
in circumstances where it is unlikely he will return. For example, in In the Goods
of Loveday (1900), the deceased died intestate and his widow obtained letters of
administration but disappeared before completing the administration of the
estate. The grant to her was revoked and a grant de bonis non was issued to one
of the deceased’s children. A grant can also be revoked where there is a serious
breach of duty, for example, where dishonesty is involved.
The effect of revocation of a grant is that the original personal representatives 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 a personal representative prior to
revocation of the grant are a valid discharge, if made in good faith, that is to say
that the person making payment had no reason to suppose the grant might be
revoked. For example, a debtor of the estate, who paid the debt in good faith
under the grant which is later revoked, is protected and could not be asked to
pay it again. This seems appropriate as otherwise the debtor could be out of
pocket through no fault of his own.
Section 27(2) also provides that a personal representative may reimburse
himself in respect of payments which he made under a grant that is later revoked
if the person obtaining the later grant could properly have made those payments.
This might cover, for example, payment of funeral expenses. Again, this seems
appropriate as the estate will be no worse off if the payments would have been
made anyway.
Section 27(1) provides that a personal representative, who, in good faith, makes
any payment or disposition under a grant which is later revoked, is protected
from liability. So, for example, if he had paid a legacy under a will which was
later found to be invalid or revoked by a later will, the personal representative is
protected if he believed the original will was valid. However, if assets were
distributed to person/s who it now transpires were not in fact entitled (for
example, the property is given to someone else under a later will that comes to
light), those correctly entitled could recover the assets from those who received
them. This could either be via a proprietary claim as in Re Diplock (1948) if the
property is identifiable or via a personal claim for an equivalent sum as in
Ministry of Health v Simpson (1951). The proprietary claim returns property to
the person really entitled but the personal claim can cause hardship as no
defence was allowed in Ministry of Health v Simpson. The beneficiary must first
recover as far as possible against the personal representatives but, if they acted
in good faith and are protected by s27, no claim would lie against them and the
recipient would be liable for the full sum.
A purchaser from a personal representative is protected by s37 AEA 1925, which
provides that a conveyance of property from personal representatives is valid in
favour of a purchaser in good faith for valuable consideration, despite any later
revocation of the grant. Conveyance includes a mortgage, legal charge, lease,
assent or vesting instrument and the section applies to real and personal
property, provided an instrument has been used to transfer it. If no writing is
present, the purchaser in good faith for value may instead rely for protection on
case law. In Hewson v Shelley (1914), land was sold by a widow acting under a
grant of letters of administration, which was revoked when a will was found some
years later. The executors sued the purchaser for return of the land but the
purchaser was protected as he bought in good faith.
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Since a grant is an order of the court, protection is also available under s204(1)
Law of Property Act 1925, which provides that an order of the court shall not be
invalidated as against a purchaser in good faith for value for want of jurisdiction,
whether or not the purchaser had notice of the defect.
Under s39 AEA, contracts for sale entered into by a personal representative
remain valid even if the grant is revoked. This seems only fair to the person who
contracted with someone acting under a grant which appeared to be valid.
Question 2
According to s24 Wills Act 1837, a will speaks from death as regards property,
unless a contrary intention appears from the will, but it is not always easy to
know whether the court will interpret the wording of the will as showing a
contrary intention.
The effect of s24 is that a description of property in a will is to be construed as
referring to all the property of that description which the testator owned when he
died. Therefore, a gift of all my freehold land would pass all the freehold land
owned at the date of death, as in Re Kempthorne (1930), whether or not that
was the same as the freehold land which he owned when the wiil was made.
Similarly, in Re Bancroft (1928) a gift of 'all my rights' in connection with a
particular play was held to include the benefit of a contract to sell the film rights,
entered into between the date of the will and the death. These results might or
might not accord with what the testator really intended, so it is vital that the will
should be drafted to make his intentions clear.
Case law suggests that use of words such as 'now', in relation to property given,
may indicate an intention to refer to the property at the date of the will and,
therefore, to show a contrary intention. However, this is not necessarily the case.
In Re Edwards (1890), a gift of 'premises where I now reside' was seen as a
reference to the property at the date of the will, as the words referring to 'now'
were essential to the description, being the only way the property could be
identified. This meant the legatee took the whole property owned at the date of
the will including a part that had since been let to a tenant. By contrast, in Re
Willis (1911), the words 'in which I now reside' were treated as not excluding
s24, as the property was clearly named and identified without the description
that referred to 'now'. Therefore, the devisee received some additional pieces of
land bought after the date of the will.
Specific gifts fail by ademption if the property given is not part of the estate
when the testator dies. For example, the item may have been given away, sold,
destroyed or ceased to exist or changed in substance. Section 24 and the
question of whether the will shows a contrary intention can be particularly
important in deciding whether or not a specific gift has adeemed. Issues often
arise where the will describes an item which is sold before death and replaced
with another item of a similar description. If s24 applies, the new item would
pass but, if the will shows a contrary intention, that is, it is viewed as referring to
the item owned at the date of the will, then the gift will adeem. Ideally, the will
should make it clear what is to happen to the gift if the property changes
between the will and death. Where it does not do so expressly, it is not always
clear which way a case would be decided and difficulties have often arisen in
relation to company shares when re-organisations have occurred between the
date of the will and death, eg in Re Slater (1907), contrast Re Clifford (1912).
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It appears from case law that the more precisely the property is described, the
more likely it is that the testator intended to pass the property he owned at the
date of the will rather than death. The use of the word 'my' in relation to a
particular piece of property is sometimes viewed as excluding s24, as in Re Sikes
(1927), where a gift referred to 'my piano' and was held not to pass the piano
owned at death, the testatrix having sold the one owned at the date of the will.
In Re Reeves (1928), a gift by will of 'my present lease' indicated a contrary
intention and would have adeemed as the lease expired before the testator's
death. Therefore, the new lease he had since taken would not have passed, as
s24 had been excluded. However, after renewing the lease, he had executed a
codicil which republished the will, so the description was read as a reference to
the new lease which existed at the date of the codicil.
As appears from the case law, it is not always clear when the court will find a
contrary intention to s24 and, so, gifts should be worded with great care, after
taking clear instructions as to testator's wishes, to ensure that a beneficiary
actually receives what the testator intended.
(b) A demonstrative legacy is said to be a hybrid, which is somewhere between a
specific and a general legacy. It has the nature of a general legacy but includes a
direction that it be met from a particular fund or source, as explained in
Ashburner v Macguire (1786). A typical example might be for a certain sum of
money to be paid out of a particular bank or building society account. It will be
met as far as possible from the specified fund or source.
To the extent that it cannot be met from the specified fund or source, it does not
adeem as a specific gift would if it no longer formed part of the testator's estate
at his death, but it is treated as a general legacy and will be met from the
general estate.
If there are insufficient assets in the estate to meet all debts, general legacies
abate before specific ones. Insofar as a demonstrative legacy can be met from
the specified fund or source, it is treated as specific and, to that extent, has an
advantage over a general legacy in that it it is less likely to abate. (It also carries
an entitlement to income from the property given.) Any part of the gift that
cannot be met from the specified fund or source is treated as a general legacy
and abates pro rata with other general legacies.
It can be seen that, in a sense, a demonstrative legacy has 'the best of both
worlds' as it is treated more favourably than specific legacies for ademption and
more favourably than general legacies for abatement.
Question 3
(a)
Where provisions in a will are unclear, the admission of extrinsic evidence,
where permitted, may enable the testator's wishes to be ascertained and so
carried out. Even prior to the Administration of Justice Act 1982 (AJA), the
courts would admit extrinsic evidence in certain circumstances. For
example, evidence of the circumstances surrounding the testator when he
made his will was admissible under the 'armchair principle' as explained in
Boyes v Cook (1880). An example is the case of Charter v Charter (1874),
where a testator habitually called someone by another name.
Section 21 AJA allows a wider use than before of 'direct' evidence, that is,
evidence of the testator's intention from written or oral statements he made
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about the contents of the will. Section 21 provides that the court can admit
extrinsic evidence, including evidence of the testator's intention, in three
types of situation.
The first is where any part of the will is meaningless - s21(1)(a). This 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. Circumstantial evidence was admitted in that case. Under s21, direct
evidence of the testator's intention could also be admitted if necessary.
Secondly, it is admissible where the language used is ambiguous on the face
of the will - s21(1)(b) (patent ambiguity). Again, s21 allows for direct
evidence, rather than just circumstantial evidence. However, in Re Williams
(1985), the first case decided under s21(1)(b), the extrinsic evidence in the
form of a letter written to the testatrix's solicitor did not assist in finding
what she had intended. It could, however, prove useful in cases such as
Perrin v Morgan (1943), where the court had to determine what the
testatrix intended by a gift of 'moneys'.
In Westland v Lilis (2003), a will left legacies to people listed as (a) to (i)
and a codicil stated that beneficiaries (a),(c),(c),(d) should be removed. It
was unclear whether it should have 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.
Thirdly, extrinsic evidence is admissible where 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). This
covers situations such as occurred in the pre-1983 case of Re Jackson
(1933), 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. The Act makes it clear that it is only the
surrounding circumstances that can show that there is ambiguity. Direct
evidence as to what the testator intended cannot be admitted to create an
ambiguity, although it is allowed in order to resolve an ambiguity revealed
by the surrounding circumstances. It remains to be seen how widely the
courts will interpret the word ‘ambiguous’.
(b)
Section 20 Administration of Justice Act 1982 (AJA) gives the court a limited
power to rectify wills but does not enable mistakes to be rectified in all
cases.
It provides that, if the court is satisfied that a will is so expressed that it
fails to carry out the testator’s intentions, it may order that the will be
rectified so as to do so, but only if the failure is in consequence of a clerical
error or a failure to understand instructions.
In Wordingham v Royal Exchange Trust Co Ltd (1992), a testatrix had made
a will in which she exercised a power of appointment. She instructed her
solicitor to draft a new will making changes to some bequests but he failed
to include the power of appointment. It was held that this was a ‘clerical
error’ and rectification was ordered. The term ‘clerical error can cover
omission (as in this case) or inclusion by mistake. This goes some way to
resolving the problem of errors in wills.
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In Re Segelman (1995), the testator was to provide his solicitor with a list
of family members amongst whom the residue was to be divided. Before
receiving the list, the solicitor drafted the gift so that issue of any person
who predeceased would inherit their parent’s share. When the list was
provided, it included six family members and the issue of all but one of
them but the solicitor failed to alter the gift over to take account of this. The
will did not, therefore, reflect the testator’s wishes and rectification was
ordered.
The court can rectify by inserting words as well as omitting them. Under the
previous law, illustrated by Re Morris (1970), the court was able to omit
words where the testator did not have knowledge and approval of them but
could not insert words. In that case, clause 7 of a will left 20 legacies. The
testatrix wished to revoke clauses 3 and 7(iv) by codicil but, owing to a
clerical error, the codicil revoked clauses 3 and 7. The court omitted the
reference to clause 7 altogether, thereby not carrying out the testatrix’s
wish to revoke clause 7(iv). Section 20 provides a more satisfactory
outcome as the correct words can be inserted to carry out a testator's
intentions.
If the will fails to carry out the testator’s intentions in consequence of
something other than clerical error or misunderstanding of instructions, s20
will not apply. If the draftsman understood the instructions but deliberately
failed to follow them, the court’s power would be restricted to omitting
words for want of knowledge and approval. Similarly, the power to rectify
under s20 provides no remedy where the testator fails to appreciate the
legal effect of the words used in the will, so would not cover the situation
which had occurred in Collins v Elstone (1893), where the effect of a printed
revocation clause was incorrectly represented to the testatrix. Nor would it
apply where it is unclear what was intended or where there is a gap because
the testator did not consider the events which actually occur.
Question 4
The statutory rules as to the incidence of debts in a solvent estate may result in
property given to beneficiaries being used to settle debts, where it was not the
testator’s intention for this to happen. However, the rules can be varied and care
should, therefore, be taken to clearly specify exactly which part or parts of the
estate are to be used for paying debts.
Under s35 Administration of Estates Act 1925 (AEA), where property of any kind
is charged with a debt, that property will be primarily liable for payment of the
debt, unless a contrary intention is shown. So, if a testator owns a house subject
to a mortgage, anyone inheriting the house takes it subject to the mortgage,
which will not be settled out of the residuary estate. If a testator wishes a
beneficiary to take the house free of the mortgage, his will must make this clear.
The rule applies only to debts charged on the property and not to debts incurred
in relation to the property. In Re Birmingham, Savage v Stannard (1959), a will
left a particular beneficiary a house which the deceased had contracted to buy,
but completion had not taken place when she died. It was held that the
beneficiary was not liable to meet the costs of purchase but took the house
subject to the vendor’s lien for the purchase money, as it was a charge on the
property. This illustrates the importance of careful drafting, as it was very
unlikely that this result was what the testatrix intended.
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The rule laid down by s35 can be varied by the will stating that the property is
given free of the charge, which would then be paid from residue. Alternatively,
the will may direct that the secured debt, or secured debts generally, should be
paid from a particular fund. However, care is needed, as a general direction to
pay debts from residue will not include secured debts unless specifically stated.
In Re Valpy (1906), a direction that all debts except a specific mortgage should
be paid from residue indicated the intention that another mortgage should be
met from residue. However, a direction to pay debts generally from a special
fund varies the general rule for secured debts, without the need to mention them
specifically, but any balance that cannot be met from the specified fund will be
borne by the beneficiary of the charged property.
The statutory rules as to assets to be used to meet unsecured debts is contained
in s34(3) and Schedule I Part II AEA. If property could fall into more than one
category, it will be treated as falling into the higher category only – Re
Kempthorne (1930). The statutory order may be varied in any way the testator
wishes, although this needs to be worded with care.
Debts are to be paid first out of property undisposed of by will, subject to the
retention of a fund sufficient to meet any pecuniary legacies. Secondly, they are
to be paid out of property included in a residuary gift, subject to the retention of
a fund sufficient to meet any pecuniary legacies not met as above. If there is a
lapsed share of residue, Re Sanger (1939) shows that it is necessary first to
ascertain the residue and then the part undisposed of as a result of lapse. This
lapsed share should be used first (after setting aside the pecuniary legacy fund).
The statutory order can be varied by directing that debts be paid out of the
residue as a whole. For example, in Re Harland-Peck (1941), after certain gifts,
the will gave the residue to two people as tenants in common ‘subject to’ the
payment of debts. One of the residuary beneficiaries predeceased, so that share
lapsed. It was held that the wording varied the statutory order so that debts
were to be paid from the whole of residue rather than the lapsed share. In Re
Kempthorne (1930), the Court of Appeal held that division of residue ‘after’
payment of debts and legacies showed an intention that the debts be paid before
ascertaining the residue. However, in Re Lamb (1929), a direction to pay debts,
without specifying from where they were to be paid, did not vary the statutory
order.
Thirdly, debts are to be paid from property which the deceased had specifically
given for the payment of debts. The fourth category is property charged by will
with the payment of debts, which is where the will specifies what is to be done
with any surplus after they are paid. As these are only categories 3 and 4, merely
identifying or charging property for payment of debts does not displace the
statutory order – Re Gordon (1940). It is, perhaps, surprising that property
specifically earmarked for payment of debts comes after residue. It means that,
if the testator intends the order to be varied, some further indication is needed
and so care in drafting is necessary to ensure that the testator's wishes are
carried out. If a will contains a residuary gift and directs that debts are to be paid
from, or charged on, a non-residuary fund, that will indicate an intention to
exonerate residue and so exclude the statutory order, as in Re James (1947). In
Re Meldrum’s Will Trust (1952), the order was held to be varied where a testator
left a bank account to his daughter after payment of legacies and debts and left
the residue of his estate to his son and daughter. The intention to pay the debts
from the bank account showed that he intended to exonerate the residue.
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The fifth category is the fund, if any, retained (from the first two categories) to
meet pecuniary legacies, which would abate rateably. Sixth in the list comes
property specifically devised or bequeathed rateably according to value. Last in
the statutory list is property appointed by will under a general power of
appointment, rateably according to value.
It is common for a will to direct that debts are to be paid from residue but it is
important to check the testator’s precise wishes and to draft the provision with
care to achieve the desired result.
SECTION B
Question 1
(a)
Formal validity of testamentary documents is governed by s9 Wills Act
1837, which requires that the will and codicil be in writing and signed in the
presence of two witnesses, who then sign in the testator’s presence. There
is an issue as to whether there is a valid signature by Alice. It would seem
that she intended by her signature to give effect to the codicil, as required,
but her signature is incomplete. However, 'signature' has been given a wide
meaning and included initials in In the Goods of Savory (1851). In Re
Chalcraft (1948), a testatrix was too weak to sign her full name but the will
was upheld as valid, as it was all she could do by way of signing and
intended it to be her signature. In contrast, in Re Colling (1972), a testator
had only signed part of his name before one of the witnesses was called
away. It was held that he had not signed in front of both witnesses as his
signature had been incomplete and he intended to do more by way of
signature. Alice's situation is similar to that in Re Chalcraft and the signature
will probably be upheld.
The witnesses must also sign in Alice's presence and the testatrix needs to
be mentally as well as physically present when the witnesses sign. Alice was
slipping into unconsciousness while they were signing but a more relaxed
attitude is taken to the presence of the testatrix (than to that of witnesses)
and, in Re Chalcraft, the will was upheld despite the fact that the testatrix
was lapsing into unconsciousness.
When executing a will or codicil, a testatrix must also have sufficient mental
capacity - Banks v Goodfellow (1870) - and knowledge and approval of the
contents of the will - Guardhouse v Blackburn (1866). This is in doubt as
Alice was drowsy and drifting in and out of consciousness when the codicil
was read over to her. However, the rule in Parker v Felgate (1883) may
assist. It states that, where a testatrix had capacity at the time of giving
instructions for the codicil to her solicitor, it was prepared in accordance
with those instructions and, at the time of executing the document, she
realised that she was executing a codicil for which she had given
instructions, the codicil is valid even if she lacked full capacity at the time of
executing it. This was extended to the requirement for knowledge and
approval in In the Estate of Wallace (1952). There is no reason to doubt
Alice's capacity or knowledge when she gave the instructions and she seems
to have realised that the codicil was one for which she had given
instructions, as she was anxious to sign it. The codicil may well be upheld as
valid.
(b)
If the codicil were invalid, the will would be read on its own. Clauses (i) and
(ii) contain alterations, which are governed by s21 Wills Act 1837. This
provides that unexecuted alterations made after execution of the will are of
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no effect except so far as the previous provisions are rendered 'not
apparent'. Alterations made before execution are valid but there is a
presumption that unattested alterations were made after execution - Cooper
v Bockett (1846).
Applying the rules to clause (i), the alteration is not attested and is
presumed to have been made after execution of the will. It will, therefore,
be invalid unless evidence from the witnesses shows that it was, in fact,
made before execution. As the original wording is still apparent, Coral will
receive £10,000.
Applying the rules to clause (ii), this is again unattested and will be
presumed to have been made after execution and so invalid. Here, it seems
unlikely that the original words are apparent, as only natural means (such
as holding up to the light) can be used to try and read them - In the Goods
of Horsford (1874), Re Itter (1950). Probate would normally be granted with
a blank space - In the Estate of Hamer (1944), the obliteration having the
effect of revoking the obliterated word/s. However, as there is a
substitutional gift, the doctrine of dependent relative (conditional)
revocation may apply. If the view is taken that Alice's intention was to
revoke the original provision only if the substitutional provision were valid,
the original provision will not be revoked and any means can be used to
ascertain the original wording - In the Goods of Horsford, Re Itter - which
then takes effect.
Section 15 Wills Act 1837 provides that a witness to a will cannot take a
benefit under it, although the will remains valid. Bill witnessed the will and
the gift to him would, therefore, fail. The grandfather clock would form part
of the residuary estate and would pass to Ellie under the residuary gift in
clause (iv).
(c)
If the codicil is valid, it would have the effect of republishing the will,
provided it refers to the will, which seems likely as the codicil was
professionally drawn. In Re Harvey (1947), a statement in the codicil that it
was a codicil to the testator’s will and giving the date of the will was
sufficient. Republication means that the will is considered to have been
executed at the date of the codicil.
The republication will not of itself validate the alterations by making them
take effect as if made before execution. The alterations will be valid only if
the codicil refers to them in some way – In the goods of Heath (1892) - or
there is some other evidence that the alterations were made before the
codicil. Alice took the will to her solicitor so he could presumably give
evidence that the alterations were present before the codicil was executed.
Therefore, clauses (i) and (ii) would be read in their altered form with Coral
receiving £5,000 and Dan £1,000.
If a beneficiary witnesses a will but there is a later codicil which republishes
the will, that validates the gift to the witness, provided he does not witness
the codicil - Anderson v Anderson (1872). Bill did not witness Alice's codicil,
so he would be entitled to the grandfather clock. Under the terms of the
codicil, the residue would pass to Ellie and Fabio equally.
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Question 2
Under s20 Wills Act 1837, a will can be revoked by burning, tearing or otherwise
destroying it provided the destruction is done by the testator or by someone in
his presence and by his direction. The intention to revoke must be present at the
same time as the destruction.
It appears from the letter and phone call that Quentin had the intention to revoke
his will. It has been destroyed by shredding, at his direction but not in his
presence. In In the Goods of Dadds (1857), a will was not validly revoked where
it was burned in an adjoining room. Similarly, in Re De Kremer (1965)
destruction of a client's will by a solicitor acting on the client's telephoned
instructions did not revoke the will.
However, s20 also provides that a will can be revoked by writing declaring an
intention to revoke, if it is executed in the manner in which a will is required to
be executed. In In the Goods of Durance (1872), a testator wrote to his brother
asking him to burn his will. The destruction by the brother would not revoke the
will but the letter itself was sufficient as it was signed and witnessed in
accordance with the s9 requirements for executing a will. Quentin probably
signed the letter giving his instructions to destroy the will but he only asked one
business colleague to sign it, which would not suffice. It, therefore, seems that
Quentin's will was not validly revoked and his estate will pass to Stella and Vince
under the terms of the will.
Normally, to be valid, a will must comply with the requirements of s9 Wills Act
1837 and be in writing and signed by the testator in the presence of two
witnesses who sign in his or her presence. Tom's 2004 will was validly executed,
so his estate would nomally pass under that will unless it was validly revoked.
Tom seems to have had the intention to revoke it when he spoke to Oliver.
However, he has not destroyed the will or revoked it in signed and witnessed
writing as required by s20. His instructions to Oliver that he wants everything to
be held in trust for Pam have not been put in writing or signed and witnessed, as
required by s9.
However, a privileged will, which requires no formalities, may be made under s11
Wills Act 1837 by a person in actual military service or a mariner or seaman 'at
sea'. A person with privileged status can also revoke a previous will without the
usual formalities set out in s20. As a member of the Royal Navy, Tom was a
mariner but he was on shore when he spoke to Oliver. However, the words 'at
sea' have been given a wide interpretation and a mariner on shore is covered by
privileged status if he is under orders to return to his ship - In the Goods of
Newland (1952). In the recent case of Ayling v Summers and Others (2009), a
seaman under orders to join his ship was viewed as being 'at sea'. Tom was in
the middle of a voyage and only temporarily on shore, as he returned to his ship
the next day. He, therefore, had privileged status.
In In the Estate of Gossage (1921), a soldier wrote to his sister asking her to
burn his will as he had cancelled it. This would not normally have been a valid
revocation, as his letter was not attested and the will was not destroyed in his
presence. However, as he had privileged status, it was held to be revoked. Tom's
2004 will would, therefore, have been revoked by his instructions to Oliver, as he
clearly had the intention to revoke it.
In Ayling v Summers, it was held that a merchant seaman had made a valid will
by saying that he wanted everything to go to his Auntie Anne if he 'snuffed it'.
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This shows that no formal wording is needed and so Tom seems to have made a
valid informal will in favour of Pam. It is essential that he had the necessary
animus testandi - intention to make a will. In Re Stable (1919) a young officer
said 'If I stop a bullet, everything of mine shall be yours' and this was valid.
Tom's words seem to show this intention as he makes it clear that he wants to
put in place different provisions from those in his formal will.
Tom's estate would, therefore, be held in trust for Pam, and Wanda would not be
entitled.
Rose did not totally destroy her will. It was held in Cheese v Lovejoy (1877) that
a will was not revoked by writing 'revoked' on it and crumpling it, as these were
not sufficient acts of destruction under s20. However, in In the Goods of Morton
(1887), the will was revoked by the testator scratching out his signature with a
knife. In Re Adams (1990), a will was revoked where the signatures of the
testatrix and witnesses had been heavily scored out with ball-point pen, so that it
was impossible to see that they were signatures. As Rose obliterated her
signature with marker pen, this may be sufficient destruction of an essential part
of the will to meet the requirements of s20.
However, it is also necessary to show that Rose intended to revoke her will. Rose
destroyed her will in the belief that it was useless now that Tom had died, but
this was not correct. Although a gift normally lapses where a beneficiary
predeceases, under s33 Wills Act 1837, as the gift was to her child, it does not
lapse but passes to Tom's issue, namely his daughter Pam.
In Re Southerden (1925), a testator destroyed his will, which left everything to
his wife, in the mistaken belief that everything would pass to her under the
intestacy rules. It was held that the will was not revoked as his mistaken belief
meant that he lacked the necessary intention to revoke it. On this basis, it seems
that Rose's will may not have been revoked. If the will remains valid, the legacy
to charity would take effect, with the residue passing to Pam as a result of s33.
Question 3
(a)
Harriet died intestate and her 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 beneficial joint tenants will pass automatically to Ivor
by the right of survivorship and will not form part of the estate to be
distributed under the intestacy rules. He will take it subject to the
outstanding mortgage.
The order of those entitled to benefit on intestacy is set out in s46 AEA. The
surviving spouse is entitled to personal chattels, defined in s55(1)(x) AEA.
Ivor will receive the personal possessions worth £10,000. Section 55
expressly mentions horses and china but excludes chattels used for
business. In Re MacCulloch (1981), a yacht used more for business than
pleasure was not considered a personal chattel. The racehorse has won
several races but, if Harriet raced him as a hobby rather than a business, it
would pass to Ivor as a chattel, as in Re Hutchinson (1955). In Re Cripsin's
Will Trust (1975), a valuable collection of clocks and watches fell within the
description as items which in their nature were for personal use and it is
likely that the antique fine bone china will pass to Ivor, even though it is
described as a collection and seems to be on display rather than in use.
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The watch and chain are chattels but will not pass to Ivor if Harriet made a
valid gift of them to Leo. This might be a donatio mortis causa (DMC). To be
valid, three requirements must be met. Firstly, the gift must be made in
contemplation of impending death - Re Craven's Estate (1937). This
requirement was met in Wilkes v Allington (1931), where the donor knew
he had cancer. It is not entirely clear from the facts whether Harriet
believed her illness was serious and, therefore, thought she might die soon.
If she did not, it would not be a valid DMC.
Secondly, to distinguish it from an immediate lifetime gift, a DMC must be
conditional on death, so that it is only intended to become absolute if and
when the person dies and is ineffective if death does not take place. Harriet
makes this clear by saying that she wants Jamal to have the watch and
chain 'if' she dies. Thirdly, there must be delivery of the subject-matter of
the gift, in the sense that the donor must part with dominion. This can be
done by handing the asset over or by handing over the key giving access to
it. In Re Lillingston (1952), handing over keys to a trunk containing the
keys to a safe deposit box was sufficient 'delivery' of jewellery in the safe
deposit box. As Harriet handed Leo the key to the safe containing the watch
and chain, he will be entitled to them, provided the first requirement
(contemplation of death) is found to be satisfied.
The remaining assets will be used for payment of debts and expenses. As
Harriet has left a spouse and issue, Ivor will receive, in addition to chattels,
a statutory legacy of £250,000, with interest. He also receives a life interest
in half the residuary estate. Harriet's children, Jamal and Kaia are entitled to
the remainder interest in that half after Ivor's death and also to the other
half of the residuary estate. Their interests are held on the statutory trusts
in s47 AEA, namely in equal shares per stirpes, contingent on attaining 18
or earlier marriage or formation of a civil partnership. As Jamal is over 18,
his interest is vested and he would receive a quarter of residue immediately
but Kaia would only be entitled to her quarter if and when she fulfils the
contingency of reaching 18 or marrying, etc.
Should Kaia die in December 2012, she would not have fulfilled the
contingency and Harriet’s estate would be distributed as if Kaia had not
survived her. Therefore, the half share of residue not taken by Ivor would
pass absolutely to Jamal, who would also receive the remainder in the other
half after Ivor's life interest.
(b)
Under s31 Trustee Act 1925, personal representatives have power to make
payments from income for the maintenance, education or benefit of a
beneficiary with an interest in income. Income from Kaia's contingent share
could be used for her education but the personal representatives must have
regard to her age, requirements and the circumstances and consider any
other funds available. If they decide to exercise the power, the money can
be applied directly to the school fees or paid to Kaia's father or guardian. It
must not be paid to Kaia as she cannot give a valid receipt.
The income available would be that in respect of Kaia's one quarter
contingent share of the residuary estate. The power in s31 is subject to
prior interests and so income from the half share of residue in which Ivor
has a life interest could not be used for Kaia.
Under s32 Trustee Act 1925, the personal representatives have power to
advance up to half of a beneficiary's vested or presumptive share of capital
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for the beneficiary's advancement or benefit. Pilkington v IRC (1962) gave a
wide interpretation and held that 'benefit' included any use of the money
which improved the material situation of the beneficiary. This could include
buying Kaia a pony if they think it would benefit her, as she is a talented
horse rider. The money should be applied directly to the purchase and not
given to Kaia as she cannot give a valid receipt.
Kaia could be advanced up to half of her contingent share in the estate that
is not subject to Ivor's life interest (ie up to one half of her quarter share of
residue). She could only be advanced capital from the share of residue that
is subject to Ivor's life interest if Ivor consented in writing. Any sum
advanced would be deducted from her entitlement when she reaches 18 or
marries. The money could be advanced even though her interest is only
contingent and, if she died before fulfilling the contingency, it would not
have to be repaid.
Question 4
The Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) s1 lists
the categories of those who can apply for reasonable provision from a deceased’s
estate, the basis of the application being that the deceased’s will does not make
reasonable financial provision for the applicant.
Matt
Matt could claim under s1(1)(b) as a former spouse of the deceased who has not
remarried. However, such claims are rarely successful as, normally, financial
matters are settled at the time of the divorce. In Re Fullard (1982), the Court of
Appeal considered that claims by former spouses would be unlikely to succeed.
The financial settlement on divorce sometimes provides that no claim may be
made in the future under the 1975 Act. Matt’s claim would probably not succeed.
If it did, the court would, under the general guidelines in s3, take into account his
financial resources and needs and any disability he has following the accident.
Although he can now only work part time, he owns his own home free of
mortgage. However, cases such as Re Fullard and Cameron v Treasury Solicitor
(1996) and, more recently, Barrass v Harding and Newman (2001) suggest he is
unlikely to succeed in a claim.
Nick
Nick could claim under s 1(1)(c) as a child of the deceased. There is no age limit
in the Act. The standard to apply to Nick and all applicants other than a spouse is
set out in s1(2)(b) and is ‘such provision as would be reasonable in all the
circumstances of the case for the applicant to receive for maintenance’. This has
been interpreted as denoting payments which enable the applicant to discharge
the recurrent cost of daily living.
However, it is difficult for able-bodied adult children to make successful claims as
they are able to earn a living. In Re Coventry (1979), a claim by an adult son
was unsuccessful, even though he was in poor financial circumstances, as the
court took the view that it was not unreasonable that no provision be made for
an adult son. However, Nick is only 17 and not yet an adult and so may well
succeed.
As well as the general guidelines, such as the obligations and responsibilities of
Lorna towards him, which would not cease just because he had been living with
Matt, the court must have regard to the particular guidelines. These include the
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manner in which the child was being or was expected to be educated or trained
(s3(3)). Nick hopes to go to university next year and will, therefore, incur fees
and expenses to do with his education, so it seems likely that the court would
consider that some provision for him was reasonable, particularly if Matt is
unable to afford to help with the costs of Nick's education now that he is only
working part time.
Paul
Paul was not married to Lorna but s1(1)(ba) allows a claim to be made by a
person, not married to the deceased but living in the same household as the
deceased, for the period of two years immediately before the death, as husband
of the deceased. Paul may not meet the criteria as, although he has lived there
for five years, to begin with he was only a lodger and it seems he did not become
her lover or share her bedroom until the last 18 months. Although it was held in
Re John Watson (deceased) (1999) that the absence of sexual relations was not
conclusive, in that case they had enjoyed a sexual relationship before cohabiting
and, although this ceased when they were living together, they were still living as
husband and wife. On the facts, it seems that Paul and Lorna's relationship was
only platonic prior to the final 18 months, which would not count. Should he be
able to satisfy the court that they were living as 'a couple' prior to the
commencement of sexual relations, eg from when he began sharing expenses
etc, the court would take account of the general guidelines and of the particular
ones, which would take into account Paul's age, the length of the relationship as
a cohabiting couple and his contribution to the welfare of the family, including
caring for Olivia.
If he cannot establish that the cohabitation was for two years, he could claim
under s1(1)(e) which allows an application by a person, not included in previous
paragraphs, who immediately before the death of the deceased was being
maintained, either wholly or partly, by the deceased. Under this paragraph, Lorna
was not wholly maintaining him but may have been making a substantial
contribution, in money or money’s worth to his reasonable needs, eg by
providing him with a home. It is necessary to show that Lorna was not receiving
full consideration for maintaining Paul – s1(3). Clearly, they were both
contributing which could make it difficult for Paul to succeed, as Jelley v Iliffe
(1981) suggests their respective contributions should be balanced and that the
application could not succeed unless the deceased contributed more. However,
Bishop v Plumley (1991) suggests that the matter should be looked at in the
round, taking a common sense approach and that the provision of a home is a
substantial contribution.
The standard to apply would be the maintenance standard and would consider
what was reasonable provision for the recurrent cost of daily living, such as his
accommodation expenses.
The court must consider the general guidelines set down is s3(1). These include
Paul’s resources and needs and those of any other applicant, including Nick, and
any beneficiary (Olivia) and any obligations (including moral ones) and
responsibilities of Lorna towards Paul and other applicants and beneficiaries.
Under the particular guidelines, the length of time for which the maintenance
took place will also be relevant and this was relatively short. It might be
considered that Olivia's claim and, perhaps, Nick's are stronger than Paul's, as
presumably Paul is able to earn a living and maintain himself. Where there are
competing claims, the size of the estate can be an important factor. This does
not seem to be a large estate and there may be insufficient funds to provide for
everyone with a valid claim.
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