Wills revision notes LLB PDF

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Summary notes from lectures....

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Someone dies = personal representative appointed to deal with the estate, they will have to; 1) Check if the will is valid 2) If the will is valid, establish who is entitled under it Validity of will People make a will to ensure their property goes to who they wish it to. Joint property, life policies, interest under a trust expiring on death & pension schemes can not be disposed of by will. REQUIREMENTS = Formality, capacity & intention. 1. -

Formalities s9  Wills Act 1837 Writing +Signed Witnessed 2+ and signed Intention to make a will by signature

In the goods of chalcraft =  Too weak to continue to sign rest of name = not valid. In the estate of cook = your loving mother was a valid signature as easily identifiable. S.15 = Witness must be mentally and physically aware testator is signing something e.g. can't be blind - Beneficiary can’t witness will - gift will fail. - Spouse cannot witness a will - gift will fail. Attestation clause = clause stating that a document has been executed in the presence of witnesses Barret v Bem = Sister took over and signed the will - Will invalid as was no clear direction given. Privileged wills s.11 = Soldiers on military service s9 formalities waived, can be made orally as long as clear intention to dispose of property - Re Servoz-Gavin = principle extended to a radio presenter working on ship - too wide? 2. Capacity - 18+ + mentally capable General Rule - Banks v goodfellow test; a) Nature of making a will b) The extent of his money & property c) The claims which he ought to consider e.g. other family members

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Kostic v chaplin - all relatives not considered - challenged on the basis that they lacked mental capacity Exception - P  arker v felgate a) The testator had capacity when he gave instructions (but later lost capacity) b) The will was prepared in accordance with the instructions c) Testator executes will in accordance with the instructions Burden of proof is on the challenger of the will to prove they lacked capacity based on balance of probabilities. Will rational on the face of it, it is presumed the testator had capacity. Statutory will can be used when someone lacks mental capacity - Court’s power to make a will in the person’s best interest. Doubt on mental capacity = conduct an examination by a medical practitioner K  enward v Adams ‘Golden & tactless rule’ 3. Intention General intention to make a will. Specific intention - If the will has been executed correctly & made by a testator of mental capacity = presumption arises that the testator knew and approved of the contents ‘knowledge and approval’ wintle v nye - solicitor did not advise the client to gain some independent advice & the solicitor benefited greatly under the will = no presumption of knowledge and approval = burden on solicitor to prove there was. Presumption of knowledge & approval does not apply when - Blind or illiterate - Suspicious circumstances - Testator does not sign the will himself Will made due to fraud or undue influence = no presumption of knowledge and approval. SRA 2019: Principle 2 - solicitor must act in a way which upholds public trust & confidence. Principle 5 - Solicitor must act with integrity Principle 7 - Solicitor must act in the best interest of each client Code Rule 6.1 - solicitor must not act if there is a conflict of interest or a significant risk of a conflict of interest. Essay - Law commission’s proposed reform - The formalities for execution of wills (Should go electronic, Children should be able to make a will, Dispensing power (Nichol v Nichol) allowing will to be valid if contains a

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small mistake / may undermine the seriousness around making a will / ensures testator's wishes are upheld) Capacity (Children should be able to make a will based on intelligence, medical advancements have occurred which means people can be treated for mental conditions, get rid of the banks v goodfellow test and use the mental capacity act) Undue influence (Lifetime gifts should presume relationship of influence in certain circumstances, conduct of beneficiaries should be taken into consideration, circumstances under the will was made should be taken into consideration, should be restrictions placed upon who can sign on behalf of a testator) Should extend to cohabitees as they can currently be a beneficiary & sign.

Establishing entitlement Presumption that non technical words bear ordinary meaning S  haw v Wilson Presumption that technical words bear technical meaning Re cook Presumption can be rebutted. Presumption that the will refers to property in the testator's possession at the time of death, not time the will was executed s .24 Presumption the will refers to people at the date the will was executed re whorwood. People may have changed gender (s 9 Gender Recognition Act 2004) a person will be treated as being their new acquired gender (gender recognition certificate acquired) - Anyone adversely affected by this can apply to the court who will make a decision based on what is just. - EXAMPLE - ‘I leave all my property to my 3 brothers’, 1 brother has undergone gender recognition surgery and the sister did not get round to changing her will but was very supportive and accepting - It would be unconscionable for the 3rd brother to not inherit. Can be rebutted by contrary intention provided for in the terms of the will The law only used to apply to legitimate children - L  aw reform Act 1987 extended it to include illegitimate children unless the will states otherwise References to spouse, husband and wife do not include civil partners in the context of wills Civil partnership act 2004 References to children include adopted children General rule: The court will apply the literal wording of the will. Exceptions: Extrinsic evidence may be allowed to help determine the testator’s intentions if; a) the words are not appropriate for the circumstances b) the wording could apply to more or people or items of property Place yourself in the testator’s armchair and place yourself in his circumstances Boyes v Cook

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Testator called wife ‘mother’, extrinsic evidence was allowed to determine the testator’s meaning of the word mother T  horn v Dickens 3 people in the same family called Arthur, extrinsic evidence was allowed to determine which Arthur was referred to Re Jackson Extrinsic evidence can be admitted to assist in interpretation when; s.21 Administration of Justice Act 1982 a) Any part of the will is meaningless b) The language is ambiguous on the face of it c) Other than evidence of the testator's intention, shows the language used is ambiguous in the light of surrounding circumstances Harris v The Beneficiaries of the Estate of Margaret Alice Cooper - Ambiguity arose around the beneficiaries as it could have been construed to include a lot of people. - Extrinsic evidence was allowed to determine her true intentions Rectification If a will fails to carry out the testator’s intention due to a; a) Clerical error b) Failure to understand instructions The court can order that the will is to be rectified (changed) to carry out the testator’s intentions s.20 Administration of Justice Act 1982 Simple spelling error - Wrote ‘My one half share’ instead of ‘one half my share’ J oshi v Mahida Clerical error could be extended to include office work of a routine nature or an error made by the testator Marley v Rawlings (Husband and Wife signed each others wills due to being  handed the wrong ones by the solicitor) In Marley v Rawlings Lord Neuberger took a wide view of s21 by looking at the overall purpose of the document & the meaning of relevant words. Solicitor has misinterpreted the client's instructions S  prackling v Sprackling Failure of a gift Failure = Pass into the residuary of the estate Uncertainty of objects or subject-matter Beneficiary + beneficiaries partner acting as a witness s.15 Divorce - Treated as if the former spouse has died before you s.18A

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Reform came after the Re Sinclair case where the charity did not benefit

Ademption - property is no longer in the testator's estate at time of death D  urrant v Friend - Unless the basis of the gift is substantially the same Re Forman Lapse - beneficiary dies before testator - Prevented when the gift is to the testator’s children or direct decendant s.33 - Commorientes rule = Cannot determine who died first, presumption the oldest died first s 184 LPA 1925 Can be excluded by contrary intention Forfeiture rule A person cannot profit from criminal behaviour. Beneficiary barred from taking benefit from the estate if they were responsible for the testator’s death (Murder, Manslaughter, Assisted suicide) The court can grant relief from this rule if they are satisfied justice demands it, taking into account all the circumstances F  orfeiture Act 1982 - Wife killed husband after years of domestic abuse was granted relief R  eK - Wife helped husband travel to dignitas was granted relief Ninan v Findlay Court has discretion. Revocation Marriage / civil partnership s18 &   18B  - Automatic unless clause contemplating marriage with a specific person. - A general statement of marriage, not to a specific person will not suffice Court v Despallieres Written declaration - signed, witnessed 2+ s.20 - In R  e spracklan’s estate a letter to the bank instructing them to destroy his will, which they had was successful revocation - A telephone call will not suffice, must be in writing. A new will s.20 Destruction s.20 - Burning, tearing or destroying by the testator or some person in his presence and by his direction with the intention to revoke A line through various parts of the will was not classed as destruction, and the will was not revoked Cheese v Lovejoy Heavy scoring through the will using pen was held to be valid revocation as the interference was more severe than crossing out R  e Adams Cutting off the signature was held to be valid revocation Hobbs v Knight

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Cutting out the residuary gift in the will did not revoke the whole will. The will was valid without the residuary gift included in it Re Everest Must have intention and capacity Presumption that the will has been destroyed by the testator when; 1) The will cant be found on testator's death 2) Was last known to be in his possession Can be rebutted by contrary intention. On the facts may be messy, so more likely to have been lost then destroyed R  owe v Clarke Conditional revocation - Testators revocation of old will was conditional on the valid execution of the new will Onions v Tyrer / I the goods of middleton Agreement not to revoke - Will gives rise to a contract and the court are unwilling to revoke if there is an agreement in place as this goes against public policy Re Marsland - A broadly worded agreement not to revoke may be void R  obinson v Ommanney - Breach of contract if do not comply A mutual will may be made when two testators agree that the survivor will not revoke the will Dufour v pereira - A constructive trust arises for the beneficiaries on the first testator's death Re Hagger - Does not take into consideration future circumstances changing e.g. future marriage revokes a will - Was Mirror wills may want to include a clause stating they they are not mutual wills and that the other is free to revoke if they wish - The surviving spouse can’t be prevented from spending money but can’t make dispositions to defeat the agreement H  ealey v Brown Essay - Mutual wills Advantages There may be more to be said for entering into a mutual wills agreement than the textbooks give credit for Legg v Burton Provides security for person who dies first definite person will inherit

Disadvantages Not sensible Not appropriate for young couples who have many life changing obstacles ahead of them New family may lose out

Good for elderly people Restricted from making a new will Can still revoke while alive - not binding yet. Upholds contract law - people should be

Uncertainty - unsure on how much survivor can spend without thwarting the trust

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bound into contractual agreements Can be made over part of an estate Good for 2nd marriage + want to leave to children from previous relationship.

Public are not informed about the consequences of not being able to change a will Based on the assumption that needs will stay the same

Codicils Supplements the parent will - Read together Has the effect of republishing the parent will s 34 Can revive a revoked will s22 (Not if revoked by destroyed) - Must show intention to revive Publicised Beneficiary can’t witness s15 Alteration Presumption that alterations were made after the will was executed Rebuttable - Prove alterations were done before execution by asking the witnesses who witnessed the will being signed. Alterations after the will was executed will be valid if attested s21 Attested = Full signature from the testator and witness next to each alteration Unattested = Original wording will stand if apparent - If the original wording has been totally obliterated this can amount to revocation if totally unreadable without assistance - If revocation is conditional on the substitute wording being accepted by being attested, the revocation will not take effect DMC’s S.9 formalities waived Amphibious gifts as they are neither lifetime or testamentary Re Beaumont 1. Contemplation of death (Specific cause of death e.g. cancer) K  ing v Dubrey - Fear of death must be reasonable - Person dies earlier from a different cause than feared does not invalidate the DMC Wilkes v Allington 2. Conditional on death 3. The donor must part with the dominion over the subject matter of the gift

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a) Physical possession of the property King v Dubrey b) The means of accessing the subject matter - Key to trunk which contained key to safety deposit box which contained key to another box was a valid DMC Le Lillingston c) Documents evidencing ownership - Key to box containing title deeds to house was valid DMC Sen v Headley Privileged wills S.11 - Soldiers in military service can dispose of personal estate any way they like, do not comply with s .9 formalities Past, presence or imminent future service. Can argue so far removed from civilian life would be impractical to see a solicitor / Do have time when home to visit a solicitor / All given forms to fill in when join. Nominations = Not binding on trustees but do have to take them into consideration - Non statutory = lump sums under pension schemes or insurance policies (Death before retirement trustees have discretion to pay lump sum however have discretion on who to pay it to - Can write a letter of wishes to trustees) - Statutory = Small amount of money can be dealt with by signing a form disposing of the contents of the account on death. Incorporation = Making a document not executed in accordance with s9, become executed in accordance with s9 1. Document must be identified as a will 2. The document must be in existence when the will is made In the Goods of Smart 3. The will must refer to it as existing Secret trusts 1. The will gives the property to a secret trustee 2. The secret trustee agrees to hold property outside the will for a secret beneficiary Fully secret trust =  True beneficiaries identity is kept a secret (Someone else's name appears on the face of the will) 1. The trust and its terms must be communicated to the trustee M  ccormick v Grogan - Trust must satisfy 3 certainties 2. Trustee must accept - In writing for evidential proof 3. Communication & acceptance must be before the beneficiary dies Open to abuse if no evidential proof as beneficiary may lie and say they did not receive communication as on the face of the will they are the beneficiary - Equity will not allow statute to be used as an instrument of fraud Mccormick v Grogan

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Half secret trust = Clear on the face of the will there is a trust, but beneficiaries identity is kept a secret 1. The trust and its terms must be communicated and accepted before or at the time the testator executes the will Re Keen Not open to abuse as the beneficiary on the face of the will does not receive the property Dehor the will - Half secret trusts created outside the will B  lackwell v Blackwell 1) Declare the trust in the testator's lifetime = s9 does not apply 2) Constitute the trust by transferring the property to the trustees = s9 applies No communication = secret trust fails + gift falls into residuary Testamentary freedom is the ability to leave your estate to whoever you choose = restricted in O  ttaway v Norman; - Mr Ottaway left house to Miss Hodge the housekeeper, under the instructions that she was to leave it to his wife and son - She didn't go through with the agreement & left it to Mr Norman. - Mr Norman was bound by Miss Hodge's promise and they had to leave the house to Mr Ottaway’s wife and son. Proprietary estoppel 1. Assurance 2. Reliance 3. Detriment Look at the whole course of dealings in deciding if it would be unconscionable to deny the person an interest Gillet v Holt Reasonably expected to receive something Thorner v Major - Worked on long days farm unpaid as expected to inherit one day Did the work go beyond what could have been reasonably expected ‘Family love?’ Re Basham Remedy = The court will do the minimum necessary to do justice to the claimant jennings v rice - Difference between what the representation led the claimant to believe they would get vs what they actually got Court has discretion. Essay - Undermines the law of succession For Finds a way around the restrictions placed

Against Equity will not permit statute to be used as

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on a valid contract and will

an instrument of fraud

Focusing on the morality of the parties can lead to uncertain outcomes

People can make oral gifts Detriment goes against morality

Focusing on the technicalities can lead to a degree of strictness producing results inconsistent with the principle of equity

Prevents unconscionability in equity as not fair on the person who gave assurance to go back on their word

Should only be allowed when there has been double assurance Goes against testamentary freedom Hard to predict the outcome - uncertain precedents Equity will not perfect an imperfect gift Equity will not assist a volunteer Intestacy Cannot be disposed of by will; - Future money, joint tenants due to right of survivorship, death in service benefits e.g. pensions, life insurance policies Administration of Estates Act 1925 was introduced to provide a fixed set of rules to determine who should benefit on the event of failure to make a will - Partner of 18 years passed away intestate & her estate went to her parents rather than her partner Graham v Murphy Total intestacy = Not making a will Partial intestacy = Making a will but it becoming invalid or  valid  will not disposing of the entire estate. Under a statutory  trust the  personal representatives must a) Pay the expenses and funeral costs b) Pay the debts c) Distribute the residuary estate to those entitled under the rules - In equal shares - Issue of deceased relative takes that deceased relatives share - Contingent on turning 18 Spouse = Who the deceased was married to at the time of death R  e Seaford Judicial separation = Spouse is not entitled Marriage must be valid s haw v shaw

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e.g. in Ghana a man legally has 8 wifes so his estate was equally divided T  he Official

Solicitor to the Senior Courts v Yemoh Where there are issue, a spouse is entitled to 1. Personal chattels - Tangible movable property, other than any property which; S3 inheritance + Trustees Powers Act 2014 a) Consists of money or security for money b) Was used solely or mainly for business purposes c) Was held for investment 2. Statutory legacy (max £250,000) 3. Half the remainder No issue = spouse is entitled to everything. Order of entitlement when there is ...