Revision wills - Exam notes PDF

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Lecture 2 Wills distinguished from other arrangements/transactions      

Settlements inter vivos Life insurance policies Pension and superannuation Joint tenancies Joint banking accounts Donatio causa mortis

Contracts relating to will 

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Two main scenatios o Contract to make a will o Contract not to make a will Key points o A testator can always make, amend or revoke a will o Other legal doctrines may operate Contracts to make gifts in will o Gifts to leave legacy: money o Gifts to leave specific property o Gifts to leave all property/residue

Contract not to revoke wills 

Re Marylands: wife died, husband remarried and revoked the will due to marriage. o No breach of contract o Not voluntarily revoked

Contract and family provision 

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Schaefer v Schuman: housekeeper will receive a house in the will, did contact have to be fulfilled before the TFM claim? o Yes housekeeper successful o The house is not part of the estate for TFM purposes Barns v Barns: mutual wills, adopted daughter made TFM claim o Declined Schaefer and preferred NZ decision in Dillon o Meaning of estate

Mutual wills 

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Birmingham v Renfrew: agreement to leave property to each other and not revoke the wills but when wife died, husband revoked the will and gives property to his relatives. o Will may always be revoked but agreement was binding o Neither party could revoke without the other’s knowledge o Constructive trust created in favour of wife’s relatives Re Green: mutual will made, wife died, husband remarried and the will was revoked automatically o Constructive trust arises when wife dies o Trust is not extinguished by the second marriage.

Lecture 3 Making a Will 

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Age requirement o Wills act s5: 18 and above or  Married s6  Will made contemplating future marriage  Court approves s20  Understand nature and effect of will  Will accurately reflects intention  Reasonable in all circumstances to make Mental capacity o BANKS TEST (4 ELEMENTS)  Testamentary intent  Jest insufficient: Nichols v Nichols  Conditional intention (subsequent and precedent)  Understand extent property disposed of  Knowledge and approval: Re Fenwick o Execution creates presumption knew and approved o Objector bears onus of proof to prove testator did not know and approve (show on balance of probabilities). o Reading over  Comprehend and appreciate moral claims  No insane delusions o Lucid intervals o Proof of incapacity  Presumed capable if rational on face and duly executed  Objectors must provide evidence of incapacity (objectors bear the burden of proof).  If evidence incapacity, propounder to prove capacity on balance. o Statutory wills  Three conditions  Person not have testamentary capacity  Contents of proposed will is or might be made if had capacity  Appropriate to make order Suspicious circumstances o Wintle v Nye: residue to the solicitor o Propounder onus to dispel o Reason to use suspicious circumstances  Onus shift to propounder  Not sure if the beneficiary did it:  Undue influence: know that they did  Fraud: did and tricked them Undue influence o No presumption of undue influence o Onus on objector: prove beyond reasonable doubt o Re Teddy Fraud o Onus on objector to prove fraud

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Mistake and rectification: probate law o Legal error: no rectification o Factual error: can omit, cannot omit if change remainder, cannot add words o Statutory rec: 6 month (can extend) s31 32, wills act  Must be clerical error or failure understand instructions. Making a will Formal requirements o Wills act s7  Writing  Any material, language, implement, and mode of representing or reproducing words, figures or symbols in visible form.  Eggshell (Hodson v Barnes)  Side of house (Estate of Slavinskyj) pay attention to mental elements  Any implement (adam case) multiple implements?  Signed by testator (or at testator’s direction)  Re Chalcraft: part of the signature: valid, mark was intended to constitute her completed signature on that occasion  Re Colling: witness left the room without witness the full signature, invalid, signature not properly witnessed  S7(b), only need intention, no requirement only at end (Wood v Smith), must intent to authenticate contents, must be connected to the will  Multiple page: fastened  Paper and envelope taken together can be will  Signed or signature acknowledged in two witness’s presence (same form, signed or acknowledged).  Physically and mentally present, s10 blind ppl cannot be witness  Witnesses to sign and attest  Re Colling: witness left the room without witness the full signature, invalid, signature not properly witnessed  Must be same form, signed or signature acknowledged in witness presence Judicial dispensing power o S9 Wills Act  Document  Must purport record testamentary intention: must intend particular document would constitute their will  Testator intended the document, without more, to operate immediately as a will  Re Estate of Graham: attempted compliance indicative intended operate as will  Greater apart the hard to be will: Estate of Williams  Assessed time making the document: Kelly  Plummer: acts and statements made after publication to show necessary intent  Milton: never excuted will changing for 30 years, no intention  Leslie v McDowell

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Disqualification of witnesses o S11 Wills Act overturns traditional rule, everyone can be witness  Estate of Bravda 1968: old case, daughter is beneficiary, cannot be witness

Lecture 4 

Revocation and alteration structure o Voluntary s12 Wills Act  Another will, later will  Onus is on person who asserts it is limited  Clear and unequivocal evidence required to rebut presumption it is general  This is my last and only will is not sufficient express an intention to revoke all prior testamentary dispositions: Kitcat v King  Re Wayland: two wills for properties in different countries o No revocation of first will because he had no intention of revoking  Re Luck: Will one left sister personal and real property, then bought some real property, will two only real property o No revocation of first will because there is no intention to revoke at all. The terms are not rebutted by will two.  Cadell v Wilcocks: revokes to extent of inconsistency  Written declaration: Fraser  Destruction, burning or otherwise destroying  Wills Act s12(2)(f)  Destruction by o Testator or another person in T’s presence and direction o Act of destruction  Need not be totally destroyed  Must be completed act: Bell v Fothergill  Will may be partially revoked by destruction  Destruction of a will does not revoke a codicil of that will  By another in T’s presence and direction  Non-essential part torn off, remainder may be admitted: Goods of Morton  Doe d Perkes v Perkes: intend to do and stated the act but stopped by a bystander, apology to the beneficiary  No revocation, act not completed  Cheese v Lovejoy: cross out the lines  No revocation, not destruction: mere symbolic destruction is not sufficient, physical destruction is required  Goods v Woodward: cut off the first 8 lines  The eight lines were revoked but the remainder was not revoked o intention to revoke

Gill v Gill: will tore by wife, he did not intend  No revocation: intention to revoke and act of destruction must be concurrent.  Writing on/ dealing with in manner showing intended to revoke  S12(2)(g)  Complementary to judicial dispensing power  Designed to cover symbolic revocation: written on will cancelled – Cheese v Lovejoy might now revoke  Must have capacity and intention o Missing wills – presumption of destruction intending to revoke  Curley v Duff and Cahill v Rhodes to admit a missing will into probate must establish 5 elements  When will last known to be in testator’s possession, but cannot be found when testator dies, presumed T destroyed with intent revoked  Rebuttal  Re Szylowicz’s estate: incapable of destroying, made statement to friends indicating intended will still effective  Cahill v Rhodes:  Will of Boyd: nature of provision in the will itself, unlikelihood T had changed attitude to the beneficiary, made statement close to continued existence of will  Estate of Whiteley: 2 and 3 will cannot be found  Rebuttal is weak where o T made will making complete and careful disposition o Circumstances give no suggestion changed or would change mind o Nature of physical custody o Dependent relative revocation  Conditional revocation  Estate of Sourtherden: mistaken belief will no longer needed o Will not revoked, destruction was conditional on intestacy rules passing everything to wife, condition not fulfilled o Law  Marriage  S13  3 situations o Gifts to who married o Contemplation of a particular marriage, not need to be expressed in the will o Contemplation of general marriage, need to be expressed in the will  Divorce  S14 Amendment of wills o Alteration  Unattested alterations, interlineations and obliterations presumed to be made after execution 

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Duly executed (formalities s7) If not duly, part no longer apparent is revoked

Lecture 5 

Republication o Two methods  Re-execute original will (standard format)  Make codicil (standard) o Judicial dispending power apply in respect of formalities S9 o Intention to republish:  Intention required  Re-execution creates presumption of intention  Codicil no republication if no reference to will: Re Champion “the codicil to my will dated” o General effect  Will takes effect at date of republication, not original execution: Goonewardene v Goonewardene  Not a rigid rule, question of intention: Re Fraser o Effect-change of person  Perkins v Mickelthwaite: youngest son but died, later had another son, testator republished will  New son took the gift  Where rule applies, description of person in will applies as at date of republication o Change in property  Reeves case: my present lease, acquired new and more extensive leases, republished will after acquired more  Gift applied to the later lease  S4: note issue may be less significant as property is generally ambulatory, but this is still subject to contrary intention o Other effects o Limits  Will not republished if contrary to testator’s intention (Fairweather v Fairweather: intermediate codicils, or ademption, lapse, satisfaction)

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Revival o A revoked will or codicil can be revived o S16 of Wills Act o Revoked instrument must physically exist at time of revival: Rogers v Goodenough  Revival will not occur by revocation of a revoking instrument o Intention to revive  Re-execution in original form, should indicate intent  Revival by codicil: intention must show on face  Direct evidence of intention inadmissible; evidence of circumstances around revival can be considered

Estate of Horne: two will, codicil endorse first will, substituted a new executor for first will  First will will revive  Mere fact codicil written on same paper as first will not sufficient, but content of codicil showed intent revive first will (ref to the executor)  Estate of Brian: first will, second will with general revocation clause, grandson as executor, codicil endorsed first will  First will revived by codicil  T formed view son did not want to be executor but later learnt had no objection  Estate of Denger: T signed codicil by mistake, understanding it to be a procedural requirement and with no intent revive first will Effect of revival  Revived will takes effect as if made at date of revival  May validate unattested alteration made before revival  Can incorporate docs not in existence when will first executed  Can save gift to an attesting witness  Can revive part of a will  Intermediate will: Re Pearson  Will contain general revocation clause, made second, made codicil reviving first will o First will and codicil admitted to probate, second will was revoked. o Once the first will was revived, the general revocation clause in the first will operated to revoke the second will  In the Goods of Dyke o First will, second will partially inconsistent with first will, codicil reviving first will o Both will and codicil were admitted to probate, with the second will revoked to the extent of inconsistency with the first will and codicil. Revival and judicial dispensing powers  Trickey v Davies: made will, remarried, believed the will still operated  Judicial dispensing powers could not apply  Mere statements referable to the will, or conduct involving some physical dealing with revoked will, could not satisfy statutory requirements to revive  Requires informal document and without it no scope for revival  Estate of Lynch  Unaware her marriage revoked her will  Initial the name changing in will  Judicial dispensing power apply  There is doc to show intention 

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Lecture 6 

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Courts of probate and courts of construction o Court of probate – determines validity of will  Whether document is a will  Whether testator had capacity  Whether document is in proper form  Whether document is the last will o Court of construction – examines will  Functions after court of probate has admitted a will to probate  Personal reps/persons with interest can apply to have will construed Principles of construction o Principles rather than rigid rules o Principles applied in absence contrary intention o Perrin v morgan:  Armchair rule: cannot make fresh will because suspect T not mean what plainly said  Rules can be:  Language  Circumstances  T’s own dictionary o Principle one: expressed intention o Principle two: construe will as a whole o Principle three: the usual or ordinary meaning rule o Principle four: secondary meanings – the dictionary principle:  Testator may have own dictionary  Ordinary meaning displaced o Principle five: secondary meanings – surrounding circumstances  Aspect of arm chair principle  Circumstances surrounding will’s making  Circumstances known to T when made will  Hopwood v Cuthbertson: name in will as Len Hopwood but there is only Lynn  Gift made to Lynn  Will read as whole, surrounding circumstances, ordinary names and meanings did not make sense o Principle six: words with more than one usual meaning  Some terms no fixed meanings  Court seeks identify  Context of will  Surrounding circumstances  Re Barne’s Will Trusts: gift of ‘money’  Court put it self in position of T, where T was a small trader o Principle seven: technical words and phrases  Some words prima facie technical meanings  Presumption technical meaning stronger if drawn by lawyer  Re Harcourt o Principle eight: custom

 Shore v Wilson – ‘godly person’ Principle nine: Omissions  Must satisfied there is an omission  Strong certainty what omission was  May consider rectification suit than construction suit  Fell v Fell: did not specify which property was given  Intended whole estate, necessary implication o Principle ten: undersigned insertions – ignoring words  Smidmore v Smidmore: words not meaningful, rejected  Maybe change the word based on intention: Aboud v Aboud o Sbsid principle one: the golden rule – the avoidance of intestacy  Strive avoid intestacy  Fell v Fell  Favour interpretation saving the will o Subsid principle two: ‘ut res magis valeat quam pereat’  Favour preservation over destruction o Subsid principle three: falsa demonstration non nocet, cum de corpore constat  Rejecting false part to save true part  Day v Trig: no freehold house only lease hold  Leasehold house passed under the will  Wrighton v Calvert:  Two grandchildren, live near is the condition o Subsid principle four: ejusdem generis  Where will refers to class of persons or property, then follows with more general words, the general words may be restricted by reference to the prior narrow words o Subsid five: inconsistency and conflict – ambiguous words do not control a clear gift  If a gift is clear, the subsequent words which are ambiguous cannot cut down the clear gift  Re Gouk o Subsid principle six: inconsistency and conflict – the rule of despair  Arises where mutually inconsistent provisions of a will  Evidence only available for ambiguity and equivocation  Rule is the later clause prevails  Piper v Piper – intestacy happened  Re Gare: first prevail and second as substitution provision. o Subsid principle seven: inconsistency and conflict – the rule in Lassence v Tierney  If the trusts fail for any reason, then absolute gift takes effect Admissibility of extrinsic evidence in consulting a will o Extrinsic evidence allowed two cases:  Armchair rule: Allgood v Blake  Equivocations o Common law:  Armchair rule  When there is ambiguity on the face of the will, use circumstantial evidence only  Patent o

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Equivocation  You can use direct and indirect (circumstantial) evidence  Latent o Statutes  S36(1): evidence means any evidence  S36(1)(b): patently ambiguous, uncertain: not much case law around  S36(1)(c): latent  Only allow circumstantial evidence to prove there is ambiguity  S36(2): if you want to create ambiguity, then just circumstantial evidence  S36(3): means all rules still apply, can bring in any evidence Some specific gifts o Persons to be ascertained at date of will  General rule – if person fulfils description in the will at date of execution, then the person will take the gift  Rule subject to contrary intention.  Amyot v Dwarris: gift to the eldest son of my sister  Ref in will to the eldest son of sister meant eldest son living at the time the will was executed. The gift was invalid  Gift to lord Mayor ‘for the time being’  Gift to go to whoever was the lord mayor from time to time o Relationships  General rule – my sister, nephew, etc, mean by blood rather than by marriage o Class gifts  Gift to a body of persons, uncertain in number at the time of the gift  Class closing rule 

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Lecture 7 Gifts by Will Gifts – Doctrines      

Ademption Lapse Disclaimer Forfeiture Equitable satisfaction Equitable election

Type of gifts   

Devise – realty Legacy – money Bequest – personal property

Specific gifts (Devises and Legacies)   

A gift of identifiable/ particular property Often identifiable by pronoun “my” but not determinative If T not own property on death, gift adeems (not gift to B)

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“all my silverware”

General legacy   

Gift not referring to actual property Does not matter whether T owned at time of death Executor must: o Purchase relevant property or o Pay recipient value o “ a Ferrari”

Demonstrative legacy    

Gift of general nature directed be paid from specific source Matter of intention If fund inadequate, claim on general estate Re Webster: $3000 paid from a particular business o Gift demonstrative, general estate must make up difference o If gift had been specific, ademption would have applied.

Residuary devises and legacies  

Property not already disposed Gift fail -> residue ->if fails -> intestacy

Doctrine of ademption  

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General principles o Sold, stolen, lost, destroyed, changed in form of nature Two questions: o Is gift specific or general?? o If specific, is it in the estate?? o Only change form? Durrant v Friend: specific gifts, ship sunk o Gifts were specific, the item adeemed o Insurance: cannot claim, lost and gift is different Changes in gift’s nature o If property no longer part of estate, cannot trace o Slater: shares in LWC, LWC acquired by MWB  MWB shares not substantially the same as the gifted LWC shares  Gift adeemed o Clifford: 23 shares, split into 4 shares per share  B entitled to 92 shares, change in name and form only, no ademption Exceptions o Fraudulent or tortious...