Law of Succession 9780333617359, 9781349135103, 2052052062

Table of contents :
Front Matter....Pages i-xxvii
Front Matter....Pages 1-1
Nature and Function of Wills....Pages 3-26
The Creation of a Valid Will....Pages 27-53
Revocation, Alteration, Republication and Revival of Wills....Pages 54-74
Gifts by Will and Their Failure....Pages 75-94
Construction of Wills....Pages 95-111
Front Matter....Pages 113-113
Total and Partial Intestacy....Pages 115-133
Front Matter....Pages 135-135
Grants of Representation....Pages 137-161
Probate Jurisdiction....Pages 162-168
Front Matter....Pages 169-169
Collection, Realization and Management of Estates....Pages 171-183
Payment of Expenses, Debts, and Pecuniary Legacies....Pages 184-204
Distribution of the Estate....Pages 205-224
Remedies of the Beneficiaries and Creditors....Pages 225-237
Front Matter....Pages 239-239
Inheritance (Provision for Family and Dependants) Act 1975....Pages 241-264
Disclaimers and Variations....Pages 265-270
Back Matter....Pages 271-281

Citation preview

Macmillan Law Masters Law of Succession

Macmillan Law Masters Law Series Editor Marise Cremona Basic English Law W. T. Major Business Law Stephen Judge Company Law (2nd edn) Janet Dine Constitutional and Administrative Law (2nd edn) John Alder Contract Law (2nd edn) Ewan McKendrick Conveyancing (2nd edn) Priscilla Sarton Criminal Law Marise Cremona Employment Law (2nd edn) Deborah J. Lockton Family Law Kate Stanley Land Law (2nd edn) Kate Green Landlord and Tenant Law (2nd edn) Margaret Wilkie and Godfrey Cole Law of the European Union (2nd edn) Josephine Shaw Law of Succession Catherine Rendell Law of Trusts Patrick McLoughlin and Catherine Rendell Legal Method (2nd edn) Ian McLeod Torts Alastair Mullis and Ken Oliphant

Law of Succession Catherine Rendell

Senior Lecturer in Law University of Hertfordshire

Law series editor: Marise Cremona

Senior Fellow, Centre for Commercial Law Studies Queen Mary and Westfield College, University of London

~

MACMILlAN

© Catherine Rendell 1997 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1997 by MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG2l 6XS and London. Companies and representatives throughout the world ISBN 978-0-333-61735-9 ISBN 978-1-349-13510-3 (eBook) DOI 10.1007/978-1-349-13510-3 A catalogue record for this book is available from the British Library. This book is printed on paper suitable for recycling and made from fully sustained forest sources. 10 9 8 7 6 5 4 3 2 I 06 05 04 03 02 01 00 99 98 97 Copy-edited and typeset by Povey-Edmondson Okehampton and Rochdale, England

v

Contents

Preface Table of Cases Table of Statutes Table of Rules and Orders

IX X

xix XXVI

Part I THE LAW RELATING TO WILLS

3

Nature and function of wills Nature of a will 1.1 1.2 Functions of a will Property passing on death other than by a will 1.3 Contracts to create a will; proprietary estoppel 1.4 Conditional, joint and mutual wills 1.5 Living wills 1.6

16 18 23

2 The creation of a valid wiD Capacity to make a valid will 2.1 Knowledge and approval 2.2 2.3 Formal requirements for the creation of a will 2.4 The doctrine of incorporation by reference 2.5 Privileged wills

27 27 33 38 47 49

3 Revocation, alteration, republication and revival of wins 3.1 Express revocation 3.2 Implied revocation 3.3 Revocation by destruction 3.4 Doctrine of conditional revocation Revocation by marriage 3.5 3.6 Revocation by divorce 3.7 Alteration of wills and codicils 3.8 Revival and republication of wills

54

1

3 6 10

54 56 57 60 61 63 65 69

vi 4

5

Contents

Gifts by will and their failure Types of gifts Doctrine of ademption Doctrine of lapse Commorientes Mistake, fraud and undue influence Uncertainty Beneficiary or spouse of beneficiary witnessing the will 4.8 Forfeiture 4.9 Perpetuity 4.10 Private purpose trusts

4.1 4.2 4.3 4.4 4.5 4.6 4.7

Construction of wills General principles Admissibility of evidence Ascertaining the subject matter of gifts Ascertaining the beneficiaries The class closing rules

5.1 5.2 5.3 5.4 5.5

75

75 77 80 84 87 87

88 89 90 91 95

95 99 102 104 107

Part II INTESTACY 6

Total and partial intestacy 6.1 The statutory trust for sale Rights of a surviving spouse 6.2 Special rights of a surviving spouse 6.3 Rights of issue 6.4 The rights of other relatives 6.5 Adopted, legitimated and illegitimate children 6.6 6.7 Intestate succession and human-assisted reproduction Forfeiture and intestacy 6.8 Commorientes and intestacy 6.9

115

116 117 122 125 127 129 130 131 131

Part III OBTAINING A GRANT OF REPRESENTATION

7 Grants of representation Source, purpose and types of grant 7.1 Executors and administrators 7.2 Capacity to take out a grant 7.3 Executor de son tort 7.4 Grants of probate 7.5

137 137 138 140 141 141

Contents

7.6 7.7 7.8 7.9 7.10 7.11

7.12 7.13 8

Grants of administration with the will annexed Grants of simple administration Renunciation Passing over Limited grants Incomplete administration Revocation of grants Foreign grants

Probate jurisdiction 8.1 Territorial limits 8.2 Non-contentious probate 8.3 Caveats and citations 8.4 Contentious proceedings

Vll

145 148 150 151 152 155 156 158 162

162 162 164 166

Part IV ADMINISTRATION OF ESTATES

9 Collection, realization and management of estates Collection and preservation of the estate 9.1 Devolution of assets on personal representatives 9.2 Powers of sale, mortgage and leasing 9.3 Power of appropriation 9.4 Power to appoint trustees 9.5 Powers to insure assets 9.6 9.7 Power of delegation 9.8 Powers of investment Power to carryon the deceased's business 9.9

171

171 173 175 176 176 177 177 179 181

10

Payment of expenses, debts and pecuniary legacies 10.1 The duty to pay debts and discharge other liabilities 10.2 Personal representatives' powers in respect of debts 10.3 Funeral, testamentary and administration expenses 10.4 Payment of debts and solvent estates 10.5 Doctrine of marshalling 10.6 Debts and insolvent estates 10.7 Incidence of pecuniary legacies

184

II

Distribution of the estate 11.1 Time for distribution 11.2 Position of the beneficiaries during the administration period 11.3 Ascertaining the beneficiaries and creditors

205 205

184 185 186 186 194 195 198

206 208

viii

Contents

11.4 11.5 11.6 11.7 11.8 12

Income and interest on gifts Power of appropriation Distribution to minors Assents Transition from personal representative to trustee

Remedies of the beneficiaries and creditors 12.1 Administration by the court and specific relief 12.2 Action against the personal representatives 12.3 Defences of personal representatives 12.4 Substitution or removal of a personal representative 12.5 Actions against the recipients of assets

211 216 216 217 220 225 225 227 228 232 232

Part V POST-MORTEM ALTERATIONS 13

14

Inheritance (Provision for Family and Dependants) Act 1975 13.1 Background 13.2 Categories of applicant 13.3 Jurisdiction and choice of court 13.4 Time limits for applications 13.5 The test of reasonable financial provision 13.6 Criteria for deciding whether or not an order should be made 13.7 Property available for financial provision 13.8 Forms of provision which the court may make 13.9 The effect and burden of the order 13.10 Anti-avoidance provisions

241 241 242 248 248 250

Disclaimers and variations 14.1 Reasons for refusing a gift made by will or entitlement of intestacy 14.2 Disclaimers 14.3 Variations

265

256 256 258 259 259

265 267 268

Appendix: Draft Will

271

Glossary

275

Index

278

IX

Preface The law of succession is concerned with how a person's assets are disposed of on their death. It is also concerned with estate planning during a person's lifetime in order to minimise the effects of taxation on the estate on death. It is not, however, the intention of this book to provide a detailed explanation of either estate planning or the effects of taxation on death, but to ignore these areas entirely would result in providing an unreal view of the law of succession overall. All adults who have sufficient mental capacity may determine how their assets are to be disposed of on death by making a will in the form prescribed by the law. But if a person does not make a will, or if the will fails to dispose of all his or her property, the rules of intestacy set down in the Administration of Estates Act 1925 (as amended) provide fixed and detailed provisions as to how their property is to be disposed of. Technically speaking, people have total freedom as to how they dispose of their property on death, in the sense that they can execute a will disposing of all their property to whoever they wish. However, it is possible for the terms of a valid will (or the rules of intestacy) to be varied by the court after the death of the testator to make provision for certain dependants or for a cohabitee. The first part of this book (Part I) considers the law relating to wills; how a valid will is made and revoked, and the precise effect of gifts in wills and their construction. Part II looks at the inflexible rules of intestacy which operate if a person has not effectively disposed of their property by will. Part III considers the process of administration of an estate of a deceased person, whether the person has died testate (leaving a valid will) or wholly or partially intestate. Finally, Part IV deals with post-death alterations which may be made to a person's will or to the effect of the rules of intestacy, either by the court (to make provision for dependants or a cohabitee) or by the beneficiaries, who, for some reason, usually connected with tax consequences, do not want to receive their entitlement. CATHERINE RENDELL

x

Table of Cases Adams, In the Goods of (1872] LR 2 P & D 367 Adams, Re (1990) 134 SJ 518 Adamson, Re (1875) LR 3 Pe D 253 Agnew v. Belfast Banking Co. [1896] 2 IR 204 Alexander's Will Trusts, Re [1948] 2 All ER III Allen v. Maddock (1858) 11 Moo 427 Allhusen v. Whittell (1867) LR 4 Eq 295 Andrews v. Partington (1791) 3 Bro CC 401 Athill, Re (1880) 16 Ch D 211 Attenborough v. Solomon [1913] AC 76 Avondale NHS v. Bland, Re [1993] AC 789 Aynsley, Re (1973) 1 Ch. 172 Balfour v. Balfour (1919] 2 KB 571 Banks v. Goodfellow (1870) LR 5 QB 549 Barnard v. Pumfrett (1841) 5 My & Cr 63 Barnes' Will Trust, Re [1972] 1 WLR 587 Baron Kensington, Re (1902] 1 Ch 203 Barrington v. Tristam (1801) 6 Yes 845 Barry v. Butlin (1838) 2 Moo PC 480 Basham, Re [1987] 1 All ER 405 Bateman's Will Trusts, Re (1970] 1 All ER 817 Batten Singh v. Amirchand [1948] AC 161 Beadle, Re [1974] 1 All ER 493 Bean, In the Estate of [1944] P 83 Beaumont, Re (1902] 1 Ch 889 Beaumont, Re [1980] 1 All ER 266 Beaumont's Trust, Re [1950] Ch 462 Bellamy's Goods, Re (1866) 14 WR 501 Benjamin, Re [1902] 1 Ch 723 Benjamin, In the Case of [1934] 150 LT 417 Bennett v. Marshall 1856) 2 K & J 740 Besterman, Re [1984] Ch 458 Biggs Estate, Re [1966] P 118 Birch v. Treasury Solicitor (1951] Ch 298 Birks v. Birks (1865) Sw & Tr 23 Birmingham, Re [1939] Ch 523 Bishop v. Plumley [1991] 1 WLR 582 Bleckly, Re [1951] Ch 740 Bohrmann's Estate, Re [1938] 1 All ER 271 Bothamley v. Sherson (1875) LR 20 Eq Boughton v. Knight (1873) LR 3 P & D 64

40 57 138 13 98 49 214

108

188 142, 218, 222 24 59 17 28,29, 30, 31 218 97 188 213 35 17 48 32 46 42 12, 15 246 202 65

210 43

101

251 151, 163 15, 16 56 188 247

109

31 75,76

29

Table of Cases

Xl

Bowker's Goods, Re [1932] P 93 164 Bowlby, Re [1904] 2 Ch 685 213 Boyes v. Cook (1880) 14 Ch D 53 at 56 99 Bradshaw, In the Goods of (1888) 13 PD 18 156 Brice v. Wilson (1834) 8 Ad & E 349 186 Bridgewater's Estate, Re [1965] 1 All ER 717 60 Brooke v. Lewis (1882) 6 Madd 358 205 Brown v. Burdett (1882) 21 Ch D 667 91 Brown v. Skirrow [1902] P 3 44 Brown, Re (1877) 2 PD 110 139 Bullock, In the Estate of [1968] NI 96 46 Bullock v. Bennett (1855) 7 De GM & G 283 4 Bywater, Re (1881) 18 Ch D 17 98 12, 15 Cain v. Moon [1896] 2 QB 283 Callaghan, Re [1984] 3 All ER 790 244, 246, 253 Calow, Re [1928] Ch 710 79 Caney v. Bond (1843) 6 Beav 486 172 Carey, Re [1977] LS Gaz R 189 61 Casson v. Dade [1781]1 Bro CC 99 43 40 Cha1craft's Goods, Re [1948] p. 222 119, 120 Chaplin, Re [1950] Ch 507 Chapman, Re [1896] 2 Ch 763 172 Cheese v. Lovejoy (1877) 2 PD 251 57 Cherrington, Re [1984]1 WLR 772 63 Chichester Diocesan Board of Finance v. Simpson [1944] AC 341 87 Clark, in the Goods of (1858) 1 Sw & Tr 22 41 Clayton's Case (1817) I Mer 572 234 Clout and Frewer's Contract, Re [1924] 2 Ch 230 267 Cockburn's Will Trusts, Re [1957] Ch 438 222 Coleman, Re [1976] Ch 1 62,63 Coles v. Miles (1852) 10 Hare 179 218 Collin's Will Trusts [1971] 1 WLR 37 119 Colling, Re [1972]1 WLR 1440 44 Collins v. Elstone [1893] p. 1 36,56 Collins (deceased), Re [1990] 2 All ER 47 244 Collins, Re [1975] 1 WLR 309 123, 216 Commissioner of Stamp Duties (Queensland) v. Livingstone [1965] 206,207,268 AC 694 Cook, Re [1948] Ch 212 96, 97 Cook, Re (1956) 106 LJ 466 254 40 Cook's Estate, Re [1960] 1 All ER 639 Cooper v. Bockett (1846) 4 Moo PCC 320 65 Corbett v. Newey The Times, 2 May 1994 19, 43 Couser v. Couser NLJ, 3 May 1996 p. 651 44 Coventry, Re [1979] 2 All ER 408 245,252 Cowper v. Mantell (No.1) (1856) 22 Beav 223 79 Craven's Estate, Re [1937] Ch 423 15

xii

Table of Cases

Cresswell v. Cresswell (1868) LR 6 Eq 69 Crippen's Estate, Re [1911] p. 108 Crispin's Will Trust, Re [1975] Ch 245 Cross, Doe d. v. Cross (1846) 8 QB 714 Crowden v. Aldridge [1993]1 WLR 433 266, Crowther, Re [1895] 2 Ch 56 D (1), Re [1982] 2 All ER 37 Dadd's Goods, Re (1857) Dea & Sw 290 Daintree v. Butcher (1888) 13 PD 102 Dale, Re [1993]4 All ER 129 Daniels, Re (1918) 87 LJ Ch 661 Davies, In the Goods of [1850] 2 Rob Ecc 337 Debenham, Re [1986] 1 FLR 404 Debenham, Re [1986] FLR 101 Dennis, Re [1981] 2 All ER 140 Dew v. Clark (1826) 3 Add 79 Diplock, Re [1948] Ch 465 (see also Ministry of Health v. Simpson) 232, 233, Dixon v. Treasury Solicitor [1905] p. 42 CA Dobson, In the Goods of (1866) LR 1 P & M 88 Dowse v. Gorton [1891] AC 190 Doyle v. Blake (1804) 2 Sch & Lef 231 Drant v. Vause (1842) 1 Y & CC 580 Dudman, Re [1925]1 CH 553 Duffield v. Elwes (1827) 1 Bli NS 497 Dufour v. Pereira (1769) 1 Dick 419 Durance, Re (1872) LR 2 P & D 406 Durrant v. Friend (1852) 5 De G & Sm 343 Eastbourne Mutual Building Society v. Hastings Corporation [1965] 1 All ER 779 Edmonson's Will Trust, Re [1972]1 All ER 444 Edward v. Jones (1836) 1 My & Cn 226 Edwards, Re [1958] Ch 168 Eilbeck, Re [1910] 1 KB 136 Elliott v. Dearsley (1880) 16 Ch D 322 Endacott, Re [1960] Ch 232 Everest, Re [1975] Fam 44 Everett, Re [1944] 176 Fegan, Re [1928]1 Ch 45 Follett v. Pettman (1883) 23 Ch D 337 at 342 Fountain Forestry Ltd v. Edwards [1975] Ch 1 Fowler, Re (1915) 139 LT Jo 183 Freeman, Re [1910] 1 Ch 681 Freeman, Re [1984] 3 All ER Fullard, Re [1981] 2 All ER 796 Fulton v. Andrew (1875) LR 7 HL Gaskin v. Rogers (1866) LR 2 Eq 284

88 90 120

3

268, 269 181 33 58 44 20,22 104 44 245 254 249, 252 30,31 234, 235 60 18, 19 181 150 79 13 15 22 58 78 207 109 14 17 196 200 91 58 97 189 98 221 102 98 248 243,253 35 88

Table of Cases xiii Geering, Re [1964] Ch 136 Gibson, Re (1866) LR 2 Eq 669 Giles, Re [1972] Ch 544 Gill v. Gill [1909] p. 157 Gill's Goods, Re (1873) LR 3 P & D 113 Golay, Re [1965] 1 WLR 969 Goodchild, Re [1996] 1 FLR 591 Goodchild v. Goodchild [1996]1 All ER 670 Gordon, Re [1940] Ch 749 Gorringe v. Mahlstedt [1907] AC 225 Gossage, In the Estate of [1921] p.l94 Green v. Ekins (1742) 2 Ark 473 Gregory, Re [1971] 1 All ER Greville v. Brown (1859) 7 HCL 689 Groffman, Re [1969] 2 All ER 108 Grosvenor, Re [1916] 2 Ch 375 Guardhouse v. Blackburn (1866) LR P & D 109 Gurney v. Gurney (1855) 3 Drew 208 H, Re [1990]1 FLR 44 Hagger, Re [1930] 2 Ch 190 Hall v. Hall (1868) LR 1 P & D 481 at 482 Hamer's Estate, Re (1943) 113 LJP 31 Hammond, Re [1938] 3 All ER 308 Harden, Re [1959] CYLB 3448; (1959) The Times, 30 June Hardyman, Re [1925] Ch 287 Harland-Peck, Re [1941] Ch 182 Harrison v. Rowley (1798) 4 Yes 212 Harvell v. Foster [1954] 2 QB 367 Harwood v. Baker (1840) 3 Moo PC 282 Hawksley's Settlement, Re [1934] Ch 384 Haynes, Re (1842) 3 Curt 75 Heath's Goods, Re [1892] p. 253 Heathcote, In the Goods of (1881) 6 PD 30 Hepburn v. Skirving (1858) 32 LTOS 26 Hewson v. Shelley [1914] 2 Ch 13 Hickman v. Peacey [1945] AC 304 Hobbs v. Knight (1836) 1 Curt 768 Hodgkinson's Goods, Re [1893] p. 339 Hodson v. Barnes (1926) 43 TLR 71 Holder v. Holder [1968] Ch 353 Holdsworth (1937) 53 LQR 501 Hornby, Re [1946]2 All ER 150 Horsford's Goods, Re (1874) LR 3 P & D 221 Houghton, Re [1915]2 Ch 173 Hunt, In the Goods of [1875] LR P & D 250 Hutchinson, Re [1955] Ch 255 Ingall v. Moran [1944] KB 160

214 102 90 58 151 87 245 20 193 96 56 214 253 199 44 222 34 89 90 20 37 68 98 37 70 193 141 222 29 55 140 65 49 103 158 84, 85 57 70 39,40 230 48 42 67 90 36 120 150

XlV

Table of Cases

IRC v. Hawksley (1928) I KB 578 Itter, Re (1950) p. 130 James, Re (1947) Ch 256 Jelley v. IliITe [1981) Fam 128 Jennings, Re (1994) I FLR 536 Job v. Job (1877) 6 Ch D 562 John, Re [1933) Ch 370 Jones v. Lewis (1751) 2 Yes Sen 240 Jones, Re [1932)1 Ch 642 Jones, Re [1981) 1 All ER 1 K, Re [1985) 2 All ER Kay, Re [1897) 2 Ch 518 Keen, Re [1937) Ch 236 Kell v. Charmer (1856) 23 Beav 195 Kempthorne, Re [1930)1 Ch. 268 King's Will Trusts, Re [1964) Ch 542 Knatchbull v. Fearnhead (1837) 3 My & Cr 122 Knibbs, In the Estate of (1962) 2 All ER 829 Korvine's Trust, Re [1921)1 Ch 343 Kourkey v. Lusher [1981) 4 FLR 65 Ladd, Re (1932) 2 Ch 219 Lall v. Lall [1965) 3 All ER 330 Lamb v. Lord Advocate [1976) SLT 151 Lambell v. Lambell (1831) Hagg Bec 568 Land Credit Company of Ireland, Re (1872) 21 WR 1351 Land v. Devaynes (1793) 4 Bro CC 537 Lawes v. Bennett (1785) 1 Cox 167 Leach, Re (1985) 2 All ER 754 Leaper, Re [1916) 1 Ch 579 Leeming, Re [1912)1 Ch 828 Leigh's Will Trust, Re [1970) Ch 277 Lillingston, Re [1952) 2 All ER 184 Limond, Re [1915) 2 Ch 240 Lindsay v. Lindsay (1872) 27 LT 322 Long v. Symes (1832) 3 Hag Ecc 771 Lord Advocate v. M'court (1893) 20 R 488 Loring v. Thomas (1861) 1 Drew & Sm 497 Lowe v. Thomas (1854) 5 De GM and G 315 Lowthorpe-Lutwidge v. Lowthorpe-Lutwidge [1935] p. 151 MacCulloch, Re (1981) 44 NSR 666 (Nova Scotia) Malone v. Harrison [1979] 1 WLR 1353 Mann's Goods, Re [1942] p. 146 Marsden, Re (1884) 26 Ch D 783 Marsh v. Marsh (1860) 1 Sw & Tr 528 Marshall v. Broadhurst (1831) 1 Cr & J 403 Marshland, Re [1939] Ch 820 McGeorge, Re [1963] Ch 820

207 67,68 194 247, 248 253 228 191 172 213 50 90 228 48 39, 65, 100, 101 192 219 208 50 12 246 80 207 85 59 209 79 79 252 15 78 207 12, 14 89 19 141 14 105 95 55 120 252 42 230 69 181 17 214

Table of Cases xv 116,117,200 McKee, Re [1931]2 Ch 145 McMurdo's Goods, Re (1868) LR 1 P & D 540 50 McPhail v. Doulton [1971] AC 424 87 McPhail v. Torrance (1909) 25 TLR 810 17 Meade, Re [1951] Ch 774 197 Medlock, Re (1886) 55 LJ 738 213 Meldrum, Re [1952] Ch 208 194 97 Mellor, Re [1929] 1 Ch 446 Meredith, Re [1924] 2 Ch 552 83 Methuen v. Methuen (1816) Phil 416 57 Mette v. Mette (1859) 1 Sw & Tr 416 61 Midgley, Re [1955] Ch 576 200, 201 Miller, Re (1961) 105 Sol 10207 13 Mills v. Millward (1890) 15 PD 20 58 Milnes v. Fodent (1890) 15 PD 105 3 Ministry of Health v. Simpson [1951] AC 251 (see also Re Diplock) 232, 233 175 Moodie v. Hosegood [1952] AC 61 Moody v. Stevenson [1992] Ch 486 251 Moore, In the Goods of (1845) 3 NC 601 157 Morley v. Bird (1798) 3 Yes 629 80 Morgan, Re (1881) 18 Ch D 93 228 91 Morice v. Bishop of Durham (1804) 9 Yes Morton's Goods, Re (1887) 12 PD 141 57 Moss, Re (1977) 77 DLR (3d) 314 (British Columbia) 265 Murray [1963] CLY 3621 40 National Society for the Prevention of Cruelty to Children v. Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 96, 100 National Trustee co. Of Australasia v. General Finance Co. [1905] 229 AC 373 Newland, In the Goods of [1952] P 71 50 Nightingale, Re (1974) 119 Sol 10 189 30, 31 Noad, Re [1951] Ch 553 105 Ogilby, Re [1942] Ch 258 120 Oldham, Re [1925] Ch 75 20 Owen v. Delamere (1872) LR 15 Eq 134 181 Oxley, Re [1914] 1 Ch 604 181 Page v. Page (1728) 2 P Wms 489 80 Palmer v. Simmonds (1854) 2 Drew 221 87 Parfitt v. Lawless (1872) LR 2 P & D 462 37 Park, In the Estate of [1954] P112 CA 30 Parker v. Fe1gate (1883) 8 PD 171 31,32 Parsons v. Lanoe (1748) 1 Yes Sen 187 18 Pauling'S Settlement Trust [1964] 1 Ch 303 229 Pearson v. Pearson (1802) 1 Sch & Lef 10 206,213 Perkes, Doe d. v. Perkes (1820) 3 B & Aid 489 58 95,97 Perrin v. Morgan [1943] AC 399 at 406

xvi

Table of Cases

Perrins v. Bellamy [1899] 1 Ch 797 Perry v. Hicknell (1982) 34 OR (2d) 246 (Ontario) Perry's Goods, Re (1840) 2 Curt 655 Phelan, Re [1972] Fam 33 Phelps, Re [1980] Ch 275 Pollock, Re [1943] Ch 338 Ponder, Re [1921] 2 Ch 59 Posner, In the Estate of [1953] p. 557 Potter's Will Trust, Re [1944] Ch 70 Powell v. Osbourne (1992) The Times, 3 December Power, Re [1947] Ch 572 R v. Wade (1818) 5 Price 621 Radford v. Willis (1871) Ch App 7 Raine, Re [1929] 1 Ch 716 Rattenberry, Re [1906] 1 Ch 667 Rawling's Estate, Re (1934) 78 Sol Jo 338 Re Midgley Reed, Re (1888) 57 LJ Ch 790 Rees v. Hughes [1946] KB 517 Reeves, Re [1928] Ch 351 Reynolds, Re [1966] 1 WLR 19 Rhodes v. Smethurst (1838) 4 M & W 42 Ricketts v. Turquand (1848) 1 HL Cas 472 Rigden v. Vallier (1751) 2 Ves Sen 252 Roberts v. Walker (1830) 1 Russ & M 752 Rooke, Re [1933] Ch 970 Rose, Re [1949] Ch 499 Ross v. Caunters [1980] Ch 279 Rowe, Re [1941] Ch 343 Russell's Goods, Re [1892] p. 380 S, Re [1967] 2 All ER Sabatini, Re (1969) 114 Sol Jo 35 Saxton v. Saxton (1879) 13 Ch D 359 Scott v. Scarborough (1838) 1 Beav 154 Scott v. Jones (1838) 4 CL & F 382 Sehota (deceased), Re [1978] 3 All ER 385 Sen v. Headley [1991] 2 All ER 636 Shearn's Goods, Re (1880) 50 LJP 15 Sikes, Re [1927] I Ch 364 Sinclair, Re [1985] I All ER 1066 Skinner, Re [1958] 3 All ER 273 Slater, Re [1907] 1 Ch 665 CA Slinn v. Slinn (1890) 15 PD 156 Smalley, Re [1929] 2 Ch 112 Smart, In the Goods of [1902] P 238 Smith v. Harris (1845) 1 Rob Ecc 262 Somerset, Re [1894] 1 Ch 231

228 189 142 36,55,56 216 213 222 38 98 257 180 186 104 213 213 164 201 105 186 71, 103 120 231 100 12 199 211 75 89 199 138, 139 151 54 103 109 231 243 16 67 102 63,64 142 78 4 97 48 41 229

Table of Cases xvii Southerden's Estate, Re [1925] p. 177 61 Sperling, In the Goods of [1863] 3 Sw & Tr 272 46 Spracklan's Estate, Re [1938] 2 All ER 345 55 Spratt's Goods, Re [1897] p.28 18, 19 Stable, Re [1919] P 7 50 Stalman, Re (1931) 145 LT 339 CA 42 Steele's Goods, Re (1868) LR 1 P & D 575 70 Stevens v. King [1904] 2 Ch 30 84 150 Stevens, Re [1897]1 Ch 422 Stirrup's Contract, Re [1961]1 WLR 449 219 19 Stone v. Hoskins [1905] p. 194 Sugden v. Lord St. Leonards (1876) 1 PD 154 CA 59 Synge v. Synge [1894] 1 QB 466 5, 16 T, Re [1992] 3 WLR 782 23 Tankard, Re [1942] Ch 69 172, 184, 185, 206, 227, 228 Taylor's Estate, Re [1969] 2 Ch 245 186, 198,202 156 Thacker, In the Goods of [1900] P 15 Thomas, Re [1912] P 177 156 Thompson, Re [1936] Ch 676 199 Thorn v. Dickens [1906] WN 54 97 Thorpe v. Bestwick (1881) 6 QBD 311 88 Townley v. Watson (1844) 3 Curt 761 68 Trotter, Re [1899] 1 Ch 764 88 Truro, Lady, In the Goods of (1866) LR 1 P & D 201 48 Turner v. Hancock (1882) 20 Ch D 303 167 Tyrrell v. Painton [1894] P 151 35 University of North Wales v. Taylor [1908] p. 140 48 Valpy, Re [1906] I Ch 531 189 Vickery, Re [1931]1 Ch 572 178, 179 Villar v. Gilbey [1907] AC 139 105 Vynior's Case (1609) 8 Co Rep 816 5 Waddell v. Harshaw [1905] I Ir R 416 232 Wakeman, Re [1945] Ch 177 180 Wallace, In the Estate of [1952] 2 TLR 925 31,34 Walter, Re [1929] 1 Ch 647 186 Ward, Re [1965] Ch 856 109 Watkins, Re [1953] 2 All ER 1113 254 Weatherall v. Pearce (1994) The Times, 7 November 40,44,46 Welch v. Phillips (1836) I Moo PCC 299 59 Wellsted's Will Trusts, Re [1949] Ch 296 180 West, Re [1909] 2 Ch 180 211 Whitby, Re [1944] Ch 210 119 Whorwood, Re (1887) 34 Ch D 446 104 Whyte v. Ticehurst [1986]2 All ER 158 243 Wildish v. Fowler (1892) 8 TLR 457 14 Wilkes v. Allington [1931] 2 Ch 104 13, 14 Wilkinson, Re [1978]1 All ER 221 247

xviii

Table of Cases

Williams v. Johns [1988] 2 FLR 475 Willis, Re [1911] 2 Ch 263 Willocks, Re [1921] 2 Ch. 327 Wilson, Re [1967] Ch 53 Wingham, Re [1949] P 187 Wingrove v. Wingrove (1885) 11 PD 81 Wintle v. Nye [1959] 1 All ER 552 Wood v. Smith [1991] 3 WLR 514 Woodward v. Woodward [1992] RTR 35 CA Worthington, Re [1933] Ch 771 Wragg, Re [1919] 2 Ch 58 Yerburgh, Re [1928] WN 208

245, 254 103

76 190 50 37 35,36 42 15 199,200 180 222

XIX

Table of Statutes Administration of Estates Act 1925 s.2 (A) s.3 (2) s.3 (5) s.5 s.7 s.7 (3) s.7 (4) s.9 s.22 s.23 s.25 (a) s.25 (b) s.27 (1) s.27 (2) s.28 s.32 (1) s.33 s. 33 (1) s.33 (2) s. 33 (7) s. 34 (3) s.35 s.36 s.36 (4) s.37 s.39 s. 39 (1) s.41 s.41 (3) s.42 s.44 s.46 s.47 (1) (i) s.47 (1) (iii) s.47A(i) s.47 A (5) s.47 A (6) s.47 A (7) s.49 (1) (a) s. 55 (1) (iii)

117 174 174 150 142, 143, 155 143 143 150 152 151 171 172

157 157, 158 141, 175 192 116,117,175 117,200,201, 202 116,200 200 189-93,200,202 187, 188, 189, 191 217, 219, 223 219 158 158,175 158 116,124,125,176,216,217 216 176, 217, 222 205 127, 128 125, 126 127 122 122 122 122 127 158

xx

Table of Statutes

s. 55 (1) (ix) s.55 (1) (x) Administration of Estates Act 1971 s. 1

s.9

s.1O (2)

77, 141, 191 119, 120, 121

158 171 195

Administration of Estates (Small Payments) Act 1965 s.2 11, 173 s.6 11, 173 Administration of Justice Act 1982 s.17 38,39 s.19 81 s.20 37, 56, 96 s.21 62,88,99 s.21 (1) (a) 101 s.21 (1) (b) 100 s.21 (1) (c) 101 s.50 (1) (a) 141 s.57 226 Administration of Justice Act 1985 s.48 229 232 s.50 Adoption Act 1976 s. 39 (1) 129 s.39 (2) 129 s.42 107 s.42 (2) 129 s.45 107 Apportionment Act 1870 s.2 212 Betting and Gaming Duties Act 1981 196 Chargeable Gains Act 1992 s.62 (6) 267, 268 Children Act 1989 s.6 64 Colonial Probates Act 1892 158 Colonial Probates (Protected States and Mandated Territories) Act 158 1927 County Courts Act 1952 s.52 226 County Courts Act 1984 s.25 248 Enduring Powers of Attorney Act 1985 178 Family Law Reform Act 1969 s.3(1)(a) 27 56 s.3 (3) s.15 70, 106

Table of Statutes

XXI

70 s. 15 (8) Family Law Reform Act 1987 130 s. 1 130 s.18 130,211 s. 18 (2) 131 s.27 (1) 131 s.27 (3) 131 s.28 (2) 131 s.28 (6) (a) 242 Family Provision Act 1966 244 Fatal Accidents Act 1976 s. 1 (3) (b) Forfeiture Act 1982 90 s.2 (1) 90 s.2 (5) Friendly Societies Act 1974 196 s.59 9 Human Tissue Act 1961 242 Inheritance (Family Provision) Act 1938 Inheritance (Provision for Family and Dependants) Act 1975 242, 243, 248 s. 1 (1) 242,243 s.1 (1) (a) 242,243 s.1 (1) (b) 242, 244 s.1 (1) (ba) 242,244 s.1 (1) (c) 242, 243, 245-6 s.1 (1) (d) 244, 246-8, 256 s.1 (1) (e) 250 s. 1 (2) 247 s. 1 (3) 250 s. 1 (2) (a) 250,251 s.1 (2) (b) 258 8.2 (1) 259 s.2 (4) 255 s.2 (A) 254, 256 s.3 252 s.3 (1) 252 s.3 (1) (aHc) 253 s.3 (1) (d) 253 s.3 (1) (e) 254 s.3 (1) (f) 254 s.3 (1) (g) 251,254 s.3 (2) 255, 256 s.3 (3) 246, 247, 256 s.3 (4) 250, 256 s.3 (5) 253 s.3 (6) 248,249 s.4 259 8.5

xxii

Table of Statutes

s.6 s.9 (4) s.lO s. 10 (2) s.lO (3) s. 10 (4) s.lO (6) s.lO (7) s.l1 s. 11 (2) (i) s. 11 (2) (ii) s.l1 (3) s.l1 (4) s.12 s. 12 (2) s.14 s. 19 (1) s. 19 (2) s. 19 (3) s.20 s.25 s.25 (1) Inheritance Tax Act 1984 s. 142 s.200 Insolvency Act 1986 ss.292-7 s.328 (2) s.328 (4) s.329 s. 387 (b) s.421 Intestates' Estates Act 1952 s. 1 (4) s.5 Schedule 2 Schedule 2, para. 2 Judgments Act 1838 s.17 Judicial Trustees Act 1896 Law of Property Act 1925 s.27 (2) s.28 s.28 (1) s.52 s.136 s.175

259 257 257, 260 260 261 262 261 260 257, 260 262 262 262 261 260 261 251, 255 259 258 259 249 249,256,260 260 248 267,268 268 195 197 197 197 196 195 242 121-2 123 123, 124 124 197 226 221 179,180 180 219 218 212, 214

Table of Statutes xxiii s.l77 s. 184 Law of Property (Miscellaneous Provisions) Act 1989 s.2 Law of Property (Miscellaneous Provisions) Act 1994 s.14 s.16 s.18 s.19 Law Reform (Miscellaneous Provisions) Act 1934 s. (1) (1) Law Reform (Succession) Act 1995 s.1 s.2 s.3

s.4

Legitimacy Act 1976 s.3 (1) s.5 (1)-(4) s.5 (4) s.5 (5) s.1O (1) Limitation Act 1980 s.5 s.20 s.21 s.22 s.28 s.29 (5) s.32 s.38 s.38 (9) Married Women's Property Act 1882 s.11 Matrimonial and Family Proceedings Act 1984 s.15 s.15A Matrimonial Causes Act (1973) s.18 (2) Mental Health Act 1983 s.96 (1) s.96 (1) A Partnership Act 1890 s.2 s.3 Perpetuities and Accumulation Act 1964 Powers of Attorney Act 1971

62,63 84, 85, 86, 121 17

149 221 150 150 175 242 117 121, 127 64 64 106 130 106 106 130 231 231 221,222 231,235 232 232 232 232 232 174 243 243 117 28 28 28

198 198 107 178

xxiv

Table of Statutes

Proceedings Against Estates Act 1970 s.2 Queensland Succession Act 1982 s.9 Settled Land Act 1925 s. 18 s.22 s.73 Social Security Act 1975 Social Security Pensions Act 1975 Schedule 3 Suicide Act 1961 Supreme Court Act 1981 s.61 s.114 s. 114 (1) s. 114 (2) s.114 (4) s.116 s.117 s.118 s. 120 s.121 Schedule 1, para. 1 Surrogacy Arrangements Act 1985 Trustee Act 1925 s.14 s.15 s.19 s.23 (1) s.23 (3) s.25 (1) s.27 s.27 (2) s.30 s.31 s.61 s.62 s.63 (1) s.68 (17) Trustee Investment Act 1961 Trustee Savings Bank Act 1954 s.61 Wills Act 1837 s.7 s.9 s.l1

153 39 221 139 179, 180 196 196 13 225 139, 140 139, 140 140 139 140, 151, 164, 165 153 140 164 156 225 221 172,185 177 177,178,179 179 178 196, 208, 209, 210, 230 209,210 178, 179 212, 214 208, 228, 229 229 217 217 179-80 196 27 38, 39, 40, 41, 42, 43, 44, 46 49

Table of Statutes xxv s.15 s.18 s.18 A s. 18 A (1) s. 18 A (2) s. 18 A (3) s. 18 (2) s. 18 (3) s. 18 (4) s.20 s.21 s.22 s.24 s.33 s.33 (2) s.33 (3) s.33 (4) (a) s.34 Wills Act 1968 s. 1 Wills Act Amendment Act 1852 Wills (Soldiers and Sailors) Act 1918 Wills, Statute of 1540

45, 71, 88-9 61 63 61 62 62 61 62 62,63 54, 56, 57, 58 65,67 69,70 78, 79, 102, 103, 104 81, 82, 83, 84 83 81,82 82 70 89 41,42 49 241

xxvi

Tables of Rules and Orders Administration of Estates (Small Payments), Increase of Limit Order No. 539 para. 2 Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986 No. 1999) r.5 High Court and County Courts Jurisdiction Order 1991 (SI No. 724) Intestate Succession (Interest and Capitalisation) Order 1977 (No. 1491) s.47 (A) (3) (a) Non-Contentious Probate Rules 1987 r.6 (2) r. 12 (2) r. 13 r.16 146-7, 153, r.20 r.20 (e) 8, 148-9, r.22 f.22 (2) f.22 (4) f.27 (1) r. 27 (1A) f.27 (4) r.27 (5) 139, r.27 (6) r. 29 r.32 r. 32 (3) r. 35 r. 35 (4) r. 36 (1) (2) f.37 (3) f.37 (11) f.44 r. 44 (3) r.44 (6) r.47 (3) r.48 r.54 Supfeme Court, Rules of Ord 15 f.6A

11,173 11, 173 195 248 123

154, 154,

147, 140,

154,

163 46 35 65 155 147 156 149 149 145 145 147 149 147 139 154 154 155 155 140 151 151 164 165 165 166 166 60 153

xxvii

Ord 44 r.19 Ord 85, rules 2 (2) and 2 (3)

212 227

Part 1

The Law Relating to Wills

1 1.1

3

Nature and Function of Wills

Nature of a Will

The word 'will' either refers in a metaphysical sense to all that a person wishes to happen on their death, or much more commonly, it refers to the document or documents in which a person expresses their wishes on death. It is in this latter sense that the word 'will' is to be used. A person who makes a will is known as a testator if he is male, or a testatrix if she is female. There are five essential characteristics of a will, which may be summarized as follows: • • • • •

the wishes expressed are intended to take effect on death; the will only takes effect on death; a will can only operate as a declaration of intention; a will is ambulatory; a will is always revocable.

These characteristics are now considered in more detail.

(a) The wishes expressed in a will are only intended to take effect on or after death It is an essential characteristic of a will that the wishes expressed are intended to take effect on or after death. In practice it is not always easy to distinguish between a will and a lifetime (inter vivos) gift. Even if a document is described as being a will it does not follow that it is in fact a will. If the provisions of the document are to take effect some time before the death of the person drawing up the document, it is not a will. Nevertheless, if the document contains some provisions which are intended to operate on death, while others are intended to operate before death, it is possible for a court to sever the document and allow any provisions intended to operate only on death to be admitted to probate as a valid will (Doe d. Cross v. Cross (1846) 8 QB 714). Conversely, a document does not have to be described as a will to be a will. According to Milnes v. Fodent (1890) 15 PD 105, where an intention

4

The Law Relating to Wills

can be shown either in the document itself or in the surrounding circumstances, that the document was intended to take effect on death, it will be admitted to probate. For example, in Slinn v. Slinn (1890) 15 PD 156, the document was described as being a deed but in fact complied with the formalities set down for the creation of a valid will in the Wills Act 1837 (see section 2.3). Despite being described as a deed, extrinsic evidence showed that the document was only intended to take effect on the death of the person who executed it. Consequently the document was admissible to probate as a valid will. Thus the difference between a will and an inter vivos gift lies in: • the time the gift takes effect; and • the formalities which have to be complied with for the creation of the gift. If the gift is to take effect on death, the formalities of the Wills Act 1837 as amended (see section 2.3) have to be satisfied, whereas a completely different set of rules, which depend on the type of property that is the subject matter of the gift, govern inter vivos gifts. (b)

A will only takes effect on death

It is an essential characteristic of a will that the wishes expressed in it are intended to take effect on or after death, so it follows that a will only takes effect on death. Consequently, the beneficiaries under a will do not acquire an interest in the property before the testator's death. For this reason, if a beneficiary dies between the making of the will and the death of the testator the gift to the beneficiary, as a general rule, lapses and as such is not effective.

(c) A will is only a declaration ofintention There are two aspects to this third characteristic of a will. • Executing a will (that is, drawing it up in the proper form as required by the Wills Act 1837 as amended), cannot affect the way in which a testator deals with their property during their lifetime (Bullock v. Bennett (1855) 7 De GM & G 283). Thus, a testator may dispose of property given in the will by sale or gift during their lifetime. • The testator cannot be sure that a beneficiary will receive a particular asset which may be given to them by the will. The persons who are appointed to administer the deceased's estate on death (the personal

The Nature and Function of Wills

5

representatives) are under a duty to pay all debts and other liabilities of the deceased, and to enable them to do this they are given a general power of sale under the Administration of Estates Act 1925. Therefore, it is possible that if the debts of the estate are large, the gifts, including gifts of a specific asset, may be absorbed in the payment of the debts. Furthermore, the personal representatives have a supervening power of sale which enables them to select any asset of an estate, even one which is the subject matter of a specific gift, and sell it in the course of administration. (d)

A will is ambulatory

As a will only takes effect on death it follows that a will is ambulatory. This means that it is capable of dealing with property which is acquired after the date of the will. For example, if a clause in a will executed in 1995 stated that all the testator's land was to pass to Harry, this would include any land acquired by the testator after 1995. (e)

A will may always be revoked

This characteristic follows from the fact that a will only takes effect on death. A will may be revoked even where it expressly states that it is not revocable (Vynior's Case (1609) 8 Co Rep 816) or where there is a contract not to revoke the will (Synge v. Synge [1894] 1 QB 466). However, for an effective revocation the testator must have capacity to revoke and the formalities set down in the Wills Act 1837 as amended, must be complied with (see section 3.1). Finally, in considering the nature of a will, it should not be thought that a will is simply to effect the disposal of property on death. Its purpose can also be to give many other directions. It can appoint: • persons to administer the deceased's estate (a personal representative appointed by a will is known as an executor, or executrix if they are female); • trustees to administer trusts set up under the will; and • guardians for children of the testator who are minors at the date of the testator's death. A will can also give testamentary powers of appointment and make directions as to the payment of taxes and other liabilities of the deceased. Also, although this is not legally binding on the deceased's personal

6

The Law Relating to Wills

representatives, it can give directions as to the manner of disposal of the deceased's body or that the deceased's body or part of it be donated for medical or scientific purposes.

1.2

Functions of a Will

The majority of people die without having made a will. This may be out of a reluctance to contemplate their own death, the mistaken belief that a will is pointless in their case, or simply out of ignorance as to the possibilities open to them. Over the last forty years approximately only 30 people of people have died leaving a will (Judicial Statistics). It appears that twothirds of people intend to make a will, but that for many that intention does not turn into action (Law Commission Report No. 187 (1989) HC nA Table lA). However, there is evidence of an increasing tendency to make wills. This is probably in part due to the increase in the number of homeowners who consider that they now have something to give away under their will. It remains to be seen whether this trend will continue with the recent requirement that elderly people dispose of their homes in order to pay for their care. There are many advantages to be gained from making a will. Of considerable personal importance, there is the advantage of peace of mind. The more tangible advantages are now considered in turn.

(a)

Avoiding the rules of intestacy

If a person dies without leaving a valid will, they are said to have died intestate and their estate will be distributed in accordance with the provisions set down in the Administration of Estates Act 1925. (These are explained in Chapter 6.) Though the provisions ensure that the next of kin benefit from the estate of the deceased, the shares of the estate which the next of kin receive are arbitrary, and consequently they are often unsuitable in the circumstances in which they are made to operate. They may be unsuitable from the tax point of view, or because they make inadequate provision for the next of kin in greatest need. The latter is a common problem in relation to relatively small estates where the deceased dies leaving a spouse and children. Under the rules of intestacy, the surviving spouse will only get the deceased's personal chattels, a statutory legacy of £125,000 and a life interest in half the residue of the estate. This may be insufficient for the surviving spouse, especially if the matrimonial home was owned by the deceased and this forms a major part of the deceased's estate.

The Nature and Function of Wills

(b)

7

Demonstrating generosity

The rules of intestacy only make provision for the deceased's next of kin. It is only by making a will that a testator can benefit others - for example, friends and charities. (c)

Maintaining control over property

The maintaining of control over property may be a significant consideration in drawing up a will for a person with a partner (married or unmarried) and children. For example if a wife draws up a will so as to leave all her estate to her husband, she loses control over the ultimate destination of the property on the death of her husband if she dies first. She simply has to hope that he will dispose of what was originally her estate to the children of the marriage rather than, say, marrying someone else after her death and leaving the combined estates to his second wife. Control could be achieved by giving her husband simply a life interest in her estate with the remainder passing on his death to the children. However, whether this is a desirable option has to be considered in the light of all the circumstances. If the husband has only a life interest, he will only be entitled to the income from the estate. If the husband has limited capital of his own and his wife was the sole owner of the matrimonial home (or they were co-owners holding as tenants in common), a right to only the income of the estate may not leave the husband with sufficient funds to be able to acquire the matrimonial home. Further, depending on the size of the estate, the creation of a life interest may be undesirable from the inheritance tax point of view. (d)

Tax considerations

In drawing up a will a testator is advised to consider the ways in which benefit can be conferred to the maximum tax advantage. The main taxes which will require consideration in planning a will are inheritance tax and capital gains tax, but income tax considerations may also be important. In considering the tax implications all the possible circumstances must be taken into account. For example, in the case of a married person it is important to consider not only the tax consequences of the testator's death, but also the tax consequences on the death of the surviving spouse. A common consideration is the inheritance tax consequences of one spouse leaving all their estate to the survivor. In this situation no inheritance tax will be payable on the death of the first spouse, as for inheritance tax purposes gifts to spouses are exempt. However, if on the

8

The Law Relating to Wills

death of the survivor, the property passes, say, to the children of the marriage, inheritance tax is payable at 0 per cent for the first £200000 under the nil rate band (figures at the time of writing), and thereafter at 40 per cent. Suppose the first spouse to die leaves a net estate of £300000. This passes to the survivor without inheritance tax being paid, because of the spouse exemption. The survivor's estate is worth £500000, of which £300000 came from the estate of the first spouse to die. When the survivor's estate passes to the children of the marriage, inheritance tax will be chargeable at 40 per cent on £300000 (the first £200000 being charged at 0 per cent as the nil rate band). Thus inheritance tax of £120000 would be payable. It would have been more tax effective if the first spouse to die had given £200000 to the children of the marriage, rather than all to their surviving spouse. There would still have been no inheritance tax payable on the death of the first spouse, as the first £200000 falls within the nil rate band and the rest would have been spouse exempt. On the death of the survivor, the survivor's estate will only amount to £300000, as now only £100000 will come from the estate of the first spouse to die. This will mean that inheritance tax will only be payable on £100000 at 40 per cent, the first £200000 falling within the nil rate band. The tax payable on the death of the survivor will therefore only be £40000 - a saving of £80000. (e)

Choice of personal representatives

Personal representatives are the persons who are appointed to administer the estate of a deceased person. If a person dies intestate the personal representatives are known as administrators. The persons entitled to take out a grant of letters of administration to administer the estate of an intestate are governed by Rule 22 Non-Contentious Probate Rules 1987. The deceased therefore will have had no choice in the matter. In contrast, if a person makes a will he or she may choose the personal representatives whom they wish to administer the estate. Such persons are known as executors, and are entitled on the death of the testator to obtain a grant of probate to administer the estate. (I)

Administrative convenience

An appointment of executors under a will is more convenient than relying upon the court to appoint administrators, as the executors derive their authority from the will and can therefore begin to administer the estate

The Nature and Function of Wills

9

from the date of the deceased's death. The grant of probate merely confirms their authority. In contrast, administrators derive their authority from the grant of letters of administration - so where a person dies intestate the administration of the estate cannot commence until a grant of letters of administration has been obtained. A further aspect of the administrative convenience in executing a will is that it is possible to give many useful and desirable powers of administration to executors under will. If a person dies intestate the Administration of Estates Act 1925, the Trustee Act 1925 and the Trustee Investment Act 1961 all give personal representatives powers in the administration of an estate, but many of these powers are subject to unhelpful limitations and are in themselves limited. For example, the power to invest assets of the estate will be governed by the very limited investments set down in the Trustee Investment Act, 1961 which are not necessary the best investments in present-day economic circumstances. (g)

Appointment of testamentary guardians

A parent who has minor children may wish to appoint a guardian or guardians to take parental responsibility for the children, should he or she die while the children are minors. A parent may need also to consider in drafting the terms of the will the additional expense the guardians will incur in caring for the child(ren). (h)

Directions for burial and disposal of the deceased's body

Some people are concerned about the precise method by which their body is disposed of or they may wish that their body or a part of it is donated to medical education, research or treatment of patients. Directions concerning such matters can be included in a will. However, provisions concerning the disposal of one's body do not have binding legal effect. This is because the law recognizes no property in the dead body of a human being, so a testator cannot by will dispose of their dead body. Directions to the executors are therefore not legally enforceable but only have the status of a request to the executors of the will to comply with the testator's wishes. Under the Human Tissue Act 1961, if a person either in writing at any time or orally in the presence of two witnesses during their last illness requests that their body or some part of it be used for therapeutic purposes or for medical research or education, the person in lawful possession of their body after death (for example, executors) may authorize this, but is not bound to so authorize.

10

1.3

The Law Relating to Wills

Property Passing on Death Other than by a Will

Property is capable of passing on death other than by will. It may pass by: • survivorship, in the case of property held by the deceased as a joint tenant; • under a nomination; • as a donatio mortis causa. Each of these methods is now considered in turn.

(a)

Property held as a joint tenant

Where a co-owner of property is a beneficial joint tenant of the property, whether real or personal, their interest will automatically pass to the surviving joint tenant(s) on their death by virtue of the principle of survivorship. Thus, for example, where the matrimonial home is held by a husband and wife as joint tenants, and the husband dies first, the house will pass to the wife by reason of her survivorship and will not form part of the husband's estate or pass under his will. It is necessary to distinguish coownership under a joint tenancy from a tenancy in common because the beneficial share of a tenant in common can pass under their will.

(b) Nominations A nomination is a direction by a person (the nominator) to another who is holding investments on their behalf, to pay the funds on the nominator's death to a third party (the nominee) nominated by the nominator during the nominator's lifetime. Although the direction is made during the nominator's lifetime, like a will, the gift only takes effect on death. The nomination operates under the rules of the particular scheme, and although it does dispose of property on death, it does not have to comply with the formalities of the Wills Act 1837 as amended. The property does not form part of the nominator's estate (except for inheritance tax purposes in the case of a statutory nomination), and as such cannot pass under a will. The property which is the subject matter of the nomination does not vest in the nominator's personal representatives as it does not form part of the nominator's estate. In consequence the payer does not require a grant of probate or letters of administration before paying the funds to the nominee, but as the direction is to pay only on death, the payer will want to see the nominator's death certificate before making payment.

The Nature and Function of Wills

11

Another significant difference between gifts by will and nominations is that whereas a minor cannot make a will unless they have privileged status (see section 2.5), a minor of 16 years or over can make a nomination. As with a beneficiary under a will, the nominee does not have an interest in the nominated funds during the lifetime of the nominator, who may deal freely with the property at any time during their life. A nomination may be revoked by: • a later nomination • the subsequent marriage of the nominator, or • by the death of the nominee prior to the death of the nominator. A nomination is not, however, revoked by a subsequent will or codicil. Nominations can operate either • by virtue of statute, or • under discretionary pension schemes. Under various statutory provisions, deposits of up to a limit of £5 000 each in Trustee Savings Banks, Friendly Societies and Industrial and Provident Societies may be nominated (s. 2 and s. 6 Administration of Estates (Small Payments) Act 1965; Administration of Estates (Small Payments), Increase of Limit Order 1984 No. 539 para. 2). It should be noted that prior to 1 May 1987 nominations could be made of National Savings Certificates and National Savings Bank Deposits. This is no longer possible but nominations made before 1 May 1987 remain valid. A statutory nomination must be made in writing and requires one witness. Under some discretionary pension schemes the contributor to the scheme is allowed to nominate a third party to receive benefits on their death in the form of either a lump sum or a pension. Such nominations are different from statutory nominations in that they are not binding on the trustees of the pension fund but are merely an indication of the deceased's wishes. The trustees of the pension scheme are not bound to pay the nominated funds to the third party. If the trustees do decide to exercise their discretion in favour of the nominee, the trustees of the pension fund should pay the funds directly to the third party. This is because, as with statutory nominations, they do not part of the deceased's estate, However, they differ from statutory nominations in that they do not even form part of the deceased's estate for inheritance tax purposes. As the deceased has no right to the subject matter of the nomination prior to his death, the property cannot be taxed as part of the deceased's estate and payment of

12

The Law Relating to Wills

inheritance tax is thereby avoided. For this reason such schemes are popular. (c)

Donatio mortis causa

A donatio mortis causa is a gift made by a person during their lifetime which is conditional upon their death. In Re Beaumont [1902] 1 CH 889 at 892 Buckley LJ said of a donatio mortis causa 'It may be said to be of amphibious nature, being a gift which is neither entirely inter vivos or testamentary .. .'. The origins of donationes mortis causa lie in Roman law, where they were used to avoid testamentary law. A donatio mortis causa is similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the donor's lifetime. According to Rigden v. Vallier (1751) 2 Yes Sen 252, once the condition of dying has been satisfied, the gift takes place retroactively from the date of the gift. For this reason a donatio mortis causa cannot be revoked by a subsequent will. Consequently, if a donor delivers property to the donee during their lifetime, with the intention of making the gift conditional on death, and then makes a gift of the same property by will to another person, the beneficiary named in the will will receive nothing. As a donatio mortis causa is not a testamentary gift, the subject matter of the gift does not form part of the deceased's estate on death except for inheritance tax purposes. However, despite this, if the estate proves insufficient to pay the deceased's debts, the subject matter of a donatio mortis causa may be used (Re Korvine's Trust [1921] 1 Ch. 343). In Cain v. Moon [1896] 2 QB 283 Lord Russell set down four conditions which need to be satisfied for a valid donatio mortis causa: • • • •

the gift must be made by the donor in contemplation of death; and the gift must be conditional on the donor's death; and the subject matter of the gift must be delivered to the donee; and the property must be capable of forming the subject matter of a donatio mortis causa.

The onus lies on the donee to establish that all four conditions have been satisfied. We shall deal with each of these four conditions in turn. Condition 1: the gift is made by the donor in contemplation of death The contemplation of death may be express or implied from the circumstances. In Re Lillingston [1952] 2 All ER 184, the testatrix expressed the opinion that she was 'done for', and this was sufficient for the court to infer that the gift was made by her in contemplation of her death. The death of the

The Nature and Function of Wills

13

donor need not be imminent but the donor must believe that they are dying or they are likely to die in a particular way. For example, they believe that they are dying from a terminal illness, or that they are at risk of dying from a dangerous expedition. It is generally irrelevant that the donor dies from some cause other than the one within their contemplation. In Wilkes v. Allington [1931] 2 Ch 104, the first condition was held to be satisfied where the deceased thought that he was going to die of cancer but in fact died of double pneumonia. All that needed to be established was that the condition from which the deceased thought he was dying, continued up until the date of the donor's death. However, in Wilkes v. Allington it was also said that if the contemplation of death was made conditional on dying from some particular cause, death from something else would not give rise to a valid donatio mortis causa. The question has arisen as to whether the condition that the gift be made in contemplation of death can be satisfied where the donor contemplates their own death by suicide. In an Irish case, Agnew v. Belfast Banking Co. [1896] 2 IR 204, it was said to be against public policy to uphold a gift which was intended to take effect by means of suicide. This was followed in Re Dudman [1925] 1 CH 553, where the testator committed suicide as he could not cope with his terminal illness. However, at the time of both these decisions suicide was a crime and this fact clearly influenced the reasoning of the judge in Agnew v. Belfast Banking Co. Since the Suicide Act 1961 suicide is no longer a crime. This may mean that the pre-196l decisions will not be followed. However, a further reason for the decisions in Agnew v. Belfast Banking Co. and Re Dudman was that in order to establish a donatio mortis causa the donor must remain sane up until the moment of death. If this is followed the result may be the same despite the Suicide Act 1961. A further question which has arisen is whether the donor's contemplation of death from the specific cause must be reasonable. For example, suppose the donor believed they were going to die of leukaemia, despite assurances by doctors that they were not suffering from this illness, and the donor then dies in a road accident. There is no actual case in which the fear of death has in the circumstances been held to be unreasonable, but the decision in Re Miller (1961) 105 Sol 10 207, seems to suggest that the test may to a certain extent be sUbjective. Although not argued, it was accepted that a woman who made a donatio mortis causa when she was about to fly from London to Geneva because she (quite rightly as it turned out) feared death in a plane crash, was held to have satisfied the first condition for a valid donatio mortis causa even though it is statistically safer to fly in an aeroplane than to travel by car. The donatio mortis causa on the facts of the case failed on other grounds. Re Miller is different from

14

The Law Relating to Wills

the hypothetical example of unfounded fear of dying from leukaemia as in the circumstances of the case it is difficult to say that the fear was unreasonable, given that the plane did crash. Nevertheless, it remains questionable whether the reasonable person contemplates their death before making a journey by car or plane in normal circumstances. Condition 2: the gift must be conditional upon the death of the donor If the donor does not die, the gift will not take effect and the donor will be entitled to recover possession of the property from the donee. A gift can expressly be stated by the donor to be conditional upon death, but it may also be implied from the circumstances. The courts are likely to imply that the gift is conditional on death if it is made in the last few days of the donor's final illness. However, where a gift in these circumstances is made in writing, as opposed to orally, it is presumed by the courts that the gift is not a donatio mortis causa. It is either an attempted lifetime gift, or an attempted testamentary gift, which does not comply with the proper formalities set down in the Wills Act 1837 as amended (Edward v. Jones (1836) 1 My & Cn 226). Nevertheless, the presumption can be rebutted as it was in Wilkes v. Allington. In that case a note written on an envelope containing a mortgage deed was held to be made merely to identify the subject matter of the donatio mortis causa. Arguably, in order for it to be said that the gift has been made conditional upon death, it is essential that the death of the donor is not a certainty so that there is a possibility that the gift can be revoked by the recovery of the donor. This requirement seems to be implicit in the reasoning of Lord M'Larn in Lord Advocate v. M'court (1893) 20 R 488. Lord M'Larn suggests that, where the death of the donor is certain to occur, the gift should either be construed as an attempted lifetime gift or as a failed testamentary gift .The issue was also considered in Re Lillingston, which also indicated that there could be no donatio mortis causa if a donor knew that they were certain to diejn the immediate future. On the facts of the case, however, Wyn Parry J held that there was no certainty that the donor was going to die in the immediate future. Condition 3: the subject matter of the gift must be delivered to the donee The donor must have handed over to the donee (or an agent of the donee) the subject matter of the gift, or the means to controlling it, for example, the keys. The expression used in a number of cases is that the donor must have parted with dominion over the subject matter of the gift. For example in Wildish v. Fowler (1892) 8 TLR 457, a landlady was handed property by her sick lodger with the instructions to 'take good care of this'. It was held that there had been no donatio mortis causa of the property as the donor had not parted with dominion over the property,

The Nature and Function of Wills

15

but merely delivered it to her for the purpose of safe custody. However, if property is delivered to the donee for safe custody (or in any other circumstances), before their is an intention to give, but later an intention to give arises, then constructive delivery will be said to have occurred. For example in Cain v. Moon the donor originally delivered a deposit note to her mother for safe custody. She later became very ill and at a time when it was likely that she was going to die she told her mother that the deposit note, along with other property was to be the mother's should she die. There was held to have been effective delivery of the deposit note. In order to establish that the subject matter of the gift has been delivered to the donee for the purposes of a donatio mortis causa it must be shown that the donee has exclusive dominion over the subject matter of the gift. In Re Craven's Estate [1937] Ch 423, it was said that if the donor retains a set of keys to the property, this may indicate that they have not parted with dominion over the subject matter of the gift. However, it is necessary to look at the surrounding circumstances. In Woodward v. Woodward [1992] RTR 35 CA, a father handed over the keys to his car to his son at a time when he seriously ill, but the father kept a duplicate set. The court held that the father had effectively parted with dominion over the car because in the circumstances he was so ill that the practicalities were that only the son had access to the car. It has been said that the donor must deliver the subject matter of the gift or the means of access to it. In the case of a chose in action this is of course not strictly possible. Consequently, the courts will accept delivery of the 'essential indicia' or evidence of title, as delivery of a chose in action for the purposes of a valid donatio mortis causa. It was explained by Evershed MR in Birch v. Treasury Solicitor [1951] Ch 298 that 'essential indicia' is such evidence of title as would enable the person presenting the evidence to obtain access to the money or property it represented. For example, a building society pass book or a bank deposit book enables the possessor to withdraw money: handing over of such evidence of title by the donor to the donee is effective delivery of the subject matter of the donatio mortis causa. Condition 4: the property is capable offorming the subject matter of such a gift This will not be a problem in most cases, but it was established in Re Beaumont that a cheque drawn by the donor cannot form the subject matter of a donatio mortis causa as it is not enforceable without consideration, and only therefore amounts to a revocable order to the donor's banker. Similarly there cannot be a donatio mortis causa of a promissory note drawn by the donor (Re Leaper [1916] 1 Ch 579). The House of Lords in Duffield v. Elwes (1827) 1 Bli NS 497 suggested, obiter dicta, that land, either freehold or leasehold, could not form the subject matter of a donatio mortis causa.

16

The Law Relating to Wills

However, in Sen v. Headley [1991] 2 All ER 636 the Court of Appeal took a different view in relation to freehold land the title to which was unregistered. At a time when the deceased was terminally ill in hospital and was being visited by the woman with whom he had been living for a number of years, the donor said to her, The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.' After the deceased's death, the woman found in her handbag a bunch of keys, which included one to the box containing the title deeds to the house. The keys had been slipped in the handbag by the deceased during a visit by the woman to the hospital. The leading judgement was given by Nourse LJ, who could see no reason why land should be treated any differently from any other property for the purpose of a donatio mortis causa. He pointed out the principle of a donatio mortis causa was anomalous, but this did not justify excluding land. It should be noted that the Court of Appeal did not express a view on whether delivery of a land certificate with regard to registered title would be sufficient. Since the title to most freehold land is now registered, this is a crucial issue. The answer would seem to depend upon whether under the test set down in Birch v. Treasury Solicitor, a land certificate is a sufficient 'essential indicia' of title.

1.4 (a)

Contracts to Create a Will; Proprietary Estoppel Contracts to create a will

A person may make a contract during their lifetime to make provision for someone under their will. For example a man may promise to leave his girlfriend the house in which they are living in consideration of her marrying him. Or, a testatrix may enter a contract with a friend whereby she agrees not to revoke her will made in favour of the friend in consideration of the friend becoming the testatrix' companion/housekeeper for the rest of the testatrix' life. It has already been said that one of the characteristics of a will is that it is always revocable. Consequently a contract to create a will, although capable of being valid, cannot alter the principle that the testator is free to revoke their will at any time and to make a new will (Synge v. Synge [1894] 1 QB 466). The remedy of the disappointed party to the contract is to sue the testator's estate for breach of contract. In order to enforce a contract to create a will, it is necessary for the disappointed party to establish that all the elements for the creation of a valid contract are present (that is: intention to create legal relations, agreement, consideration, privity of contract, certainty of terms, and

The Nature and Function of Wills

17

any formalities necessary in the circumstances). An example of a contract to dispose of property by will which failed because all the requirements of a valid contract could not be shown, is McPhail v. Torrance (1909) 25 TLR 810. An agreement to make 'ample provision' on death for the other party to the agreement, failed because of uncertainty of terms. It may be difficult to show an intention to create legal relations where the relationship between the testator and the other party to the contract is very close. The case of Balfour v. Balfour [1919] 2 KB 571 establishes that there is a presumption against an intention to create legal relations in the domestic and family sphere. Also, where the contract to dispose of property by will involves land, the agreement will now have to comply with the formalities set down in s.2 Law of Property (Miscellaneous Provisions) Act 1989. Once it is established that a valid contract has been made, the disappointed beneficiary may be able to obtain damages for breach of contract from the testator's estate. An order of specific performance may also be available where a particular asset of the deceased's estate has been promised. According to Re Edwards [1958] Ch 168, where a particular asset is promised, another beneficiary of the asset under the will may be required to hand the asset over to the disappointed beneficiary, or, where the asset has not yet been distributed by the personal representatives, they may be required by the court to hand over the asset to the disappointed beneficiary. It should be noted that there is apparently no breach of contract involved where the deceased contracted to leave property by will and the will is automatically revoked by operation of law, such as the testator's marriage subsequent to the execution of the will (Re Marshland [1939] Ch 820).

(b)

Proprietary estoppel

In practice, it may be difficult to establish a contract in many of the circumstances in which an agreement to leave property by will is made. Another approach to obtaining part of a deceased's estate other than by the terms of the deceased's will or the rules of intestacy, is by placing reliance on the doctrine of proprietary estoppel. This operated, for example in Re Basham [1987] 1 All ER 405. On the facts of this case the plaintiff was the step-daughter of the deceased. She had helped the deceased in his business for 30 years without payment. At the time when the plaintiff and her husband were contemplating moving away from the area where the deceased had lived, he persuaded the plaintiff to stay by encouraging her in the belief that he would leave his estate to her. He subsequently died intestate, leaving two nieces as his next of kin. It was held that the plaintiff had acted to her detriment directly in the belief, known and encouraged by the deceased, that he would leave his estate to her. For this reason he was

18

The Law Relating to Wills

estopped from doing otherwise and the plaintiff was entitled to his whole estate on the basis of proprietary estoppel. For proprietary estoppel to operate it is necessary to establish that the claimant has in some way acted to their detriment, directly because the deceased led them to believe that the deceased's estate or some part of it was to be left to them. The claimant will then be entitled to such part of the estate as they were led to expect that they would receive.

1.5

Conditional, Joint and Mutual Wills

It is important to distinguish between conditional, joint and mutual wills,

none of which are very common in practice.

(a)

Conditional wills

A conditional will is one which is only intended to operate on the happening of some event specified in the will. In other words, the characteristic of a conditional will is that the happening of the specified event is a pre-condition to the will operating (Parsons v. Lanoe (1748) 1 Yes Sen 187). For instance, a testator may provide that his will is only to operate if his wife predeceases him, or if he dies on a dangerous mission which he is about to undertake. Given that it is usually perceived immediate danger which precipitates the making of a conditional will, it is sometimes difficult to decide whether the danger to be faced is merely the motive for making the will, or whether death in the circumstances envisaged is a pre-condition for the operation of the will. For example, in Re Spratt's Goods [1897] p .28 a privileged will (which can be made without the need to comply with the formalities set down in the Wills Act 1837 as amended; see section 2.5), was made by an army officer serving in New Zealand during the Maori War. The will took the form of a letter to the officer's son saying that if anything happened to him, the son was to have everything. In fact he was not killed in the Maori War and lived for another 32 years without executing a new will or revoking the one made at the time of the Maori War. On the facts the court held this will was admissible to probate and the son could take all of his father's estate under it. The will was as a matter of construction, not subject to the condition precedent that he died during the Maori War. Similarly, in In the Goods of Dobson (1866) LR 1 P & M 88, the testator's will, which commenced with the words, 'In case of any fatal accident happening to me, being about to travel by railway, I leave ... ' was held not to be a conditional will. The testator's belief that he might die in the course of the railway journey was merely the motive in drawing up

The Nature and Function of Wills

19

the will and it was not a precondition that he died on the railway journey before the will operated. Re Spratt's Goods and In the Goods of Dobson should be contrasted with Lindsay v. Lindsay (1872) 27 LT 322, where a will which commenced 'IfI should die at sea or abroad ... ', was held, as a matter of construction, to be conditional. Consequently when the testator died in England, it was held to have no effect, the pre-condition of dying at sea or abroad not having been satisfied. A recent decision on conditional wills, is authority for the principle that extrinsic evidence is admissible to determine whether the will is in fact conditional. In Corbett v. Newey (The Times, 2 May 1994) the condition was not apparent from the face of the will. The testatrix had executed a new will, but before she executed it she told her solicitor that she did not wish to sign it until a lifetime gift of certain farms which she owned had taken effect. She therefore signed the will (which made no mention of this pre-condition) but she did not date it. Instead she sent it back to her solicitor with a note to the effect that the will should not be dated until the lifetime gift of the farms had taken effect. When the gift of the farms was effected, the solicitor dated the will accordingly, and some time after this the testatrix died. On the facts of the case the pre-condition was established by extrinsic evidence but the will was held to be invalid on the ground that the testatrix lacked testamentary intention at the time she executed the will (see further section 2.3).

(b)

Mutual wills

Mutual wills arise where two or more people, by agreement, execute wills in which they leave their property or part of it, in substantially similar terms, agreeing not to revoke the wills. They usually arise between husband and wife. For example, a husband (H) and his wife (W) might make an agreement that they will each leave all of their property in their respective wills to the survivor of them, on the understanding that on the death of the survivor their joint property will pass to their daughter Miranda. Mutual wills can be varied or revoked by the parties by mutual agreement. If during the joint lives of the parties a unilateral revocation is made, this will have the effect of releasing the other party from their obligation not to revoke (Stone v. Hoskins [1905] p. 194). The problem with mutual wills is that there is an established principle that all wills are revocable, and that this is still the case even where the will expressly provides that it is not revocable. Thus, a new will in breach of the agreement is valid and takes effect. However, equity, in order to prevent a party from reneging on their agreement, imposes a constructive trust on the beneficiary or beneficiaries under the new will. A beneficiary under the

20

The Law Relating to Wills

new will, will hold the property which is subject to the agreement on constructive trust for the person(s) to be benefited from the agreement. There are conflicting views as to precisely what property will be the subject of the constructive trust (see Mitchell (1951) 14 MLR 136). Figure 2.1 illustrates the possible effects of mutual wills. It is quite clear that the constructive trust imposed on the beneficiaries under the new will, will include the property received by the beneficiaries which originally came from the estate of the first party to die, but in Re Hagger [1930] 2 Ch 190, the view was taken that the constructive trust would also attach to all property which was owned by the survivor at the date of the death of the first party to die. As to whether it includes property subsequently acquired by the survivor after the death of the first party to die is less clear and is fraught with problems. In Goodchild v. Goodchild [1996] 1 All ER 670 Carnwath J stated that the law would give effect to the agreement by way of a floating trust which becomes irrevocable following the death of the first testator but which only crystallises on specific assets on the death of the second testator. On the facts of the case, it was held that the wills in question were not mutual wills. Due to the many uncertainties surrounding mutual wills, Burgess «1970) 34 Conv. (NS) 230 at 246) advises that mutual wills should be avoided 'like the plague'. In order for a mutual will to arise there must be clear evidence of a prior agreement not to revoke the will without the consent of the other party or parties. The evidence of such agreement need not be in the will itself but can be established from clear oral or written extrinsic evidence. According to the decision in Re Oldham [1925] Ch 75, the fact that the wills are made in identical terms is not sufficient to imply that the wills are mutual. The recent case of Re Dale [1993] 4 All ER 129 (see Brierley (1995) MLR 95 cf. O'Hagan (1994) NLJ 1272) has added further uncertainty to the doctrine of mutual wills. Before this case there was no authority in English Law on the question of whether it is a necessary condition to establish mutual wills that the testators involved should confer benefit on one another. The usual circumstances in which mutual wills have been found to exist are: • where Tl and T2 leave property to the survivor absolutely, with a provision that on the death of the survivor the property will pass to agreed third parties; or • where TI and T2 give a life interest to the survivor, with the remainder passing to agreed third parties on the death of the life tenant. On the facts of Re Dale, the circumstances were somewhat different. A husband and wife had made identical wills leaving their respective estates to their son and daughter in equal shares. The husband died without

The Nature and Function of Wills

~

H'SWILL

BOTH EXECUTED 1 JANUARY 1990 AFTER AN AGREEMENT TO LEAVE PROPERTY IN A SPECIFIED WAY AND NOT TO REVOKE THE WILL

'All my estate to my wife absolutely but if she predeceases me to my daughter Miranda'

21

Y

W'SWILL

'All my estate to my husband absolutely but if he predeceases me to my daughter Miranda'

H dies on 11 June 1990. W marries (to H2) on 24 December 1990. W dies on 1 January 1991 without executing any further will. (W's will of 1 January 1990 will automatically be revoked by her marriage to H2.) DEVOLUTION OF HAND W'S PROPERTY UNDER H'S 1990 WILL H'S ESTATE

.....

W

W'S ESTATE

ON INTESTACY W'S PERSONAL O~W REPRESENTATIVE (CONSTRUCTIVE TRUSTEE)

...

H'S ESTATE

(MIRANDA)

t

(a) ALL W'S ESTATE? ALL H'S ESTATE

AND?

(b) ALL PROPERTY W OWNS ATTHE DATE OF H'S DEATH? (c) ALL PROPERTY W HAS OWNED SINCE THE MUTUAL WILL WAS EXECUTED?

Figure 1.1

22

The Law Relating to Wills

revoking his will, but after his death his widow revoked her will and made another leaving all her estate (of about £15000) to their son, with a pecuniary legacy of just £300 for the daughter. The son argued that he did not take subject to a constructive trust on the basis of the doctrine of mutual wills. It was necessary for the existence of a mutual will to establish that the parties to the agreement conferred benefit on one another. Morritt J held that this was not the case. The basis of mutual wills, he said, lies in the doctrine of fraud. He quoted Lord Camden LC in Dufour v. Pereira (1769) 1 Dick 419 where he said: ' ... he, that dies first, does by his death carry the agreement on his part into execution. If the other then refuses, he is guilty of fraud; he can never unbind himself and he becomes a trustee in course. For no man shall deceive another to his prejudice .. .' If the essence of the fraud lies in the taking of the benefit under the will of the first party to die, the decision in Re Dale is wrong. But if the fraud consists simply of reneging on the agreement at a time when the first testator to die is dead and so powerless to do anything about it, so that there is fraud in the broad sense, the decision is correct. The problem is that in Re Dale Moffitt J seems to equate breach of contract per se with fraud. Arguably, simply reneging on the agreement is not sufficient. Normally in the case of equitable fraud where no benefit is conferred on the defendant, an element of dishonesty or unconscionable behaviour is required. There could be very good reasons for reneging on the agreement, such as a change in circumstances. Supposing the daughter in Re Dale had married a very wealthy man, while the son had become disabled, the husband might well have gone along with the decision of his widow. The reasoning in Re Dale also raises an issue to date unresolved, of whether it is necessary to establish that mutual wills are in substantially the same or identical terms. If, as Re Dale the fraud consists of reneging on the agreement at a time when the other party has performed it and is powerless to do anything about the breach, then whether or not the wills are identical or substantially the same would seem to be irrelevant. (c)

Joint wills

A joint will is created where two or more persons express their wishes on death in one document which complies with the formalities of the Wills Act 1837 as amended. The joint will takes effect as the separate wills of the parties who have made it. So, for example, if a joint will is made by a husband and wife, and the wife dies first, it is admitted to probate as the will of the wife in the first instance, then when the husband dies, as the will

The Nature and Function of Wills

23

of the husband. Because of the practical implications of the same will being admitted to probate twice, joint wills are not to be encouraged. They may, nevertheless, be useful where the parties have been given a joint testamentary power of appointment or where mutual wills are intended; it is possible to create a joint mutual will.

1.6

Living Wills

A living will is sometimes referred to as an 'advance directive'. In essence it sets out the types of treatment which a person either wishes or does not wish to receive in the event of mental incapacity or permanent unconsciousness ('persistent vegetative state'). It is different from a normal will in that it takes effect at some future point within the testator's lifetime, albeit usually close to their death. The legal status of such wills is at the present time unclear in English Law. However, one body of opinion is that living wills are valid under the existing common law principles. Following this view a number of charitable organisations (for example, the Terence Higgins Trust, a registered charity supporting people with AIDS and HIV infection) have produced living will precedents. The British Medical Association has endorsed the use of living wills in a statement made in May 1992. The Law Society has also produced a living will precedent in its 'Elderly Client Handbook' (p. 214). The Terence Higgins Trust living will consists of a declaration that where the testator suffers from an illness which leads to mental impairment or permanent unconsciousness, the testator should not be kept alive. The body of opinion to the effect that living wills are valid under the existing common law principles without, therefore, the need for legislation to make them valid, is indirectly supported by two English cases. The first is Re T[l992] 3 WLR 782, where a patient signed a 'Form of Refusal' to a life-saving blood transfusion on religious grounds. The court had to decide whether the Form of Refusal was valid. On the facts of the case it was decided that the refusal was not valid, as at the time the patient signed she was under the influence of drugs as well as being subject to the undue influence of her mother, who was a Jehovah's Witness. Nevertheless, Lord Donaldson supported the long-established principle that a person who is mentally competent has the absolute right to grant or withhold consent to medical treatment. He went on to confirm that such right exists notwithstanding the fact that the reasons for making the decision are 'irrational, unknown, or even non-existent'. Following the line of reasoning of Re T, if someone who is mentally competent can sign a Form of Refusal to withhold their consent to a blood transfusion in life-threatening circum-

24

The Law Relating to Wills

stances, then arguably it follows that other forms of treatment to keep a person alive can validly be refused. The other significant case which lends support to the validity of living wills is Re Avondale NHSv. Bland [1993] AC 789. This sets down that, as a general rule, the consent of the court is required before the termination of artificial feeding of a person in a persistent vegetative state. In this case Lord Goff acknowledged that in some circumstances the fundamental principle of sanctity of human life must give way to 'self-determination'. He went on to say that 'a patient of sound mind, when properly informed, may request the withholding of specified medical treatment, even if it were life-sustaining ... ' (p. 799). As neither Re T nor the Bland case was dealing with the validity or otherwise of a living will, it remains uncertain as to whether such wills are of legal effect in English Law.

Summary 1

2 3

4

5

A will is a document or documents in which persons express their wishes on death. The wishes need not only concern how their property is to be disposed of but also such matters as who is to administer their estate, and who are to be guardians for any minor children. A will must be intended to take effect on death. It operates only as a declaration of intention, and has no actual effect until the death of the testator. A will is always revocable, and is in its nature ambulatory. The majority of people die intestate, but there are many advantages to be had from making a will, at least some of which will apply to most people. Important advantages include avoiding the effect of the somewhat arbitrary rules of intestacy, and tax considerations. Property can pass on death other than by will, such as by survivorship in the case of a joint tenancy, or by nomination. A gift by way of donatio mortis causa is another important way in which property passes on death outside a will. To establish a valid donatio mortis causa it must be shown that: (i) the gift is made in contemplation of death; (ii) the gift is conditional upon the death of the donor; (iii) the subject matter of the gift has been delivered to the donee; and (iv) the subject matter of the gift is capable of forming the subject matter of such a gift. A person may make a valid contract to dispose of property to another under the terms of his or her will. Such contracts cannot alter the principle that testators are free to revoke their wills at any time. The remedy of the disappointed beneficiary is to sue the testator's estate for damages, or possibly specific performance. It may be difficult to establish that an agreement which has the force of a contract, has been entered into. In this case another possible option may be to claim against the estate on the basis of proprietary estoppel. This will require that the claimant has acted to their detriment directly because the deceased encouraged them to believe he or she was going to make them a gift by will.

The Nature and Function of Wills

25

6 A conditional will is one which only takes effect if a specified event occurs. It is often difficult in practice to distinguish between the situation where a specified event is simply the motive for making the will, and where the specified event is a pre-condition for the operation of the will. Only in the latter situation is the will a conditional will. 7 Mutual wills occur where parties agree to leave their respective estates in usually (and possibly necessarily) a substantially similar way. The parties also agree not to revoke their wills in breach of the agreement. As a will can by nature always be revoked, if a mutual will is revoked after the death of one of the parties to the agreement, the law will impose a constructive trust on the beneficiaries under the new will. The precise property subject to the constructive trust is unClear, as is the basis for the imposition of the constructive trust. 8 A joint will arises where two or more persons express their wishes on their respective deaths in one document. Joint wills may also be mutual wills. 9 A living will sets out the types of treatment that a person does or does not wish to receive during a terminal illness or should they enter into a 'persistent vegetative state'. The legal validity of such documents is currently uncertain in English Law.

Exercises 1 What are the essential characteristics of a will? 2 What are the possible disadvantages of dying intestate? 3 Explain the differences between a gift by will and (i) a lifetime gift; (ii) a statutory nomination; (iii) a donatio mortis causa. 4 In 1993, at a time when Ernest knew that he was seriously ill with cancer, he told his housekeeper, Jenny, to take down a valuable painting from his bedroom wall and to hang it on the wall of the sitting room in Jenny's own quarters of the house. When Jenny returned from doing this he said to her 'I want you to have the painting for the years of service you have given me'. In 1994 Ernest executed a will in which he left the painting to his son Robert. In 1995 Ernest died. 5

Advise Jenny as to her position with regard to the painting. In 1985, at a time when Glenis was feeling fearful about flying to Australia to visit her sister, she executed a home-made will complying with the formalities set out in the Wills Act 1837 (as amended), which read: 'Lest I should not return from Australia, I leave all my property to my brother Russell'. Glenis did in fact go to and return from Australia safely, but died in 1995, without making a further will and leaving an estate of £300000. Her next of kin are three brothers who include Russell and three sisters. Russell claims to be entitled to the whole of Glenis's estate under the 1985 will.

Advise Russell. 6 Distinguish between a joint will and a mutual will.

26

The Law Relating to Wills

7

Moira and Stephen are husband and wife. In 1993 they executed wills in identical terms after agreeing that their respective estates were to be divided equally between their four adult children. In 1994 Moira died, without having revoked the 1994 will, and her estate passed to the four children of her marriage to Stephen. In 1995 Stephen executed a new will leaving all of his estate to just two of the children of his marriage to Moira. He excluded one child from benefit as he had just been convicted of serious drugs offences, and the other because she had won £1 m. on the National Lottery.

a

Advise the two children excluded from Stephen's will. Discuss the validity or otherwise of living wills.

27

2

The Creation of a Valid Will

A will is only valid if it is made in the proper form, by a person of sufficient age, and certain things are established about the mind of the testator at the time the will was made. As regards the mind of the testator, it must be established that: • they had testamentary capacity • they had knowledge of, and approved the contents of their will, and • the making of the will was not induced by force, fear, fraud, or undue influence. The mental requirements are often referred to as animus testandi. These mental elements of capacity, knowledge and approval, and free will are examined in the first part of this chapter, before turning to the formalities that have to be satisfied for the creation of a valid will, in the second part of the chapter.

2.1 (a)

Capacity to Make a Valid Will Age

A person under the age of eighteen has no capacity to make a will unless he or she is of privileged status (see section 2.5) (Wills Act 1837 s. 7 as amended by the Family Law Reform Act 1969 s. 3(1)(a)). Consequently if a minor dies, his estate will pass in accordance with the rules of intestacy (see Chapter 6). However, it was seen in the previous chapter (section l.3) that a person over the age of sixteen years can make a valid statutory nomination of certain types of property.

(b)

Testamentary capacity

Apart from the age restriction, a testator must have testamentary capacity to make a will; that is to say, the testator must be mentally capable of making a will. The test of mental capacity to make a will is not directly

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The Law Relating to Wills

linked to the concept of 'mental disorder' under the Mental Health Act 1983. A person suffering from a 'mental disorder' under the Act may in some circumstances have capacity to make a will. Conversely, a person who has never been adjudged to be suffering from a 'mental disorder', may lack capacity to make a will. In Banks v. Goodfellow (1870) LR 5 QB 549 Cockburn CJ said of the capacity of a testator to make a will: 'he must ... have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner in which it is to be distributed between them .. .' This dictum requires three things of a testator: that he should have: • a sound mind • a sound memory • and sound understanding. Sound mind For a testator to have a sound mind he must understand the nature of the act of making a will and its effects. The testator should comprehend that in making a will he is disposing of his property on death. Whether a testator satisfies this requirement is a question of fact. There are a variety of reasons why a testator may not understand that in making a will he is disposing of his property on death. For example, he may be of a very low mentality, or he may be suffering from some physical or mental illness, or he may even be under the influence of drink or drugs. It is important to note, however, that it is not necessary to establish that the testator understands the precise legal effect of the provisions of the will (per Cockburn CJ Banks v. Goodfellow). Sound memory Sound memory requires that the testator should have recollection of the property of which he is disposing. In Banks v. Goodfellow Cockburn CJ does not indicate the detail with which a testator should be able to recollect his property. This probably, as Professor Mellows suggests (Law of Succession, 4th edn), relates to the testator's wealth. Mellows gives this example:

A poor university teacher would easily be able to have in contemplation for example every item of real property which he owns; usually just his house. On the other hand, the Charlie Clores of this world might own so much property that one of them could not be expected to remember

The Creation of a Valid Will

29

where it all is. In this case, he may merely recall that he owns office blocks in various different parts of the country, and it may be sufficient if he intends to leave all his office blocks in, say, London to make a will in those terms, without having in mind each of the buildings that will pass under that description. Sound understanding Sound understanding requires that the testator has an appreciation of the moral claims upon him. In Banks v. Goodfellow Cockburn CJ said that a testator must have a recollection of 'the persons who were the objects of his bounty'. It is quite clear that it is not sufficient for a testator merely to be able to remember the persons who are actually named in his will; he must also be aware of any other person who has a moral claim on him who is not named in his will. In Boughton v. Knight (1873) LR 3 P & D 64 Sir J. Hannen said that a testator must have the memory to recall 'the several persons who may be fitting objects of the testator's bounty and an understanding to comprehend their relationship to himself and their claims upon him'. Thus, in Harwoodv. Baker (1840) 3 Moo PC 282, a testator who was executing a will on his death bed while suffering from a disease affecting his brain, left all of his estate to his second wife to the exclusion of other family members. It was held, on the basis of evidence, that the disease produced torpor of the brain, that he did not have sufficient recollection of his other family members. In practice, in ascertaining testamentary capacity the courts restrict the class of those who are regarded as having a moral claim upon the testator to the testator's spouse and children, and any other person to whom the testator stands in loco parentis (that is, in the position of a parent in terms of taking on some financial responsibility for that child, although not their own). It is important to appreciate that the principle that a testator should understand the moral claims upon him does not require him to distribute his estate to those who have a moral claim on him. The question is whether the testator knew when he was executing the will that, say, he was excluding his children who had a moral claim on him. As Sir J. Hannen said in Boughton v. Knight, provided that a testator has testamentary capacity, he 'may disinherit ... children, and leave property to strangers in order to gratify spite, or to charities to gratify pride'. However, it is vital to understand that although a will that takes no account of the testator's moral obligations can be valid, persons to whom the testator may in fact owe a moral obligation may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. An application under the Act may result in the terms of the will being altered after the testator's death in order to make provision for the applicant under the Act (see Chapter 13).

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It should not be thought that the test of testamentary capacity as explained in Banks v. Goodfellow is very onerous. Whether the test of testamentary capacity has been satisfied has to be considered in relation to the particular will in question. A particular testator may be adjudged to have capacity to execute the simple will that he did, whereas had the will been far more complex, the position might have been different. These principles are quite well illustrated by the decision in In the Estate of Park [1954] P 112 CA. A wealthy and elderly testator who had suffered a stroke and was incapable of looking after himself, married a young cashier at his club. On the same day as his marriage he executed a complex will, largely in favour of the young cashier. He had many years before made a will in favour of his previous wife, who had died a short time before. After his death a dispute developed between his second wife and his next closest relative, a step-nephew. The second wife argued that the will recently executed largely in her favour was invalid, as the testator lacked testamentary capacity. As her marriage to the testator revoked his earlier will (see section 3.5), she took all his estate under the rules of intestacy. The step-nephew argued that if the testator had not had capacity to make a will, neither could he have had capacity to marry, and therefore the testator's first will was effective. It was held that the testator did have capacity to enter the straightforward contract of marriage, but in view of the complexity of the will he did not have capacity to make this on the same day as the marriage took place. Consequently the testator's second wife took his estate under the rules of intestacy.

(c)

Insane delusions

A testator may be said to be suffering from an insane delusion if he holds a belief on a particular matter which no rational person could hold and the belief cannot be eradicated from their mind by reasoning with him (Dew v. Clark (1826) 3 Add 79). An insane delusion is a good example of a form of mental illness which may not affect the testator's ability to make the will. An insane delusion will only affect the testator's capacity to make a will, if it in some way affects the way in which he disposes of his property. In Dew v. Clark, the testator made a will which was perfectly rational on the face of it, but which excluded his daughter from benefit. The daughter was able to show that her father lacked testamentary capacity by bringing extrinsic evidence of his insane aversion to her. This included evidence that he had refused to see his daughter for the first three years of her life and that he had also made her sleep with an insane woman. Similarly in Re Nightingale (1974) 119 Sol Jo 189, lack of testamentary capacity was shown where a son was excluded from his father's will because the father wrongly and insanely believed that his son was trying to kill him by reason

The Creation of a Valid Will 31

of the fact that the son had on two occasions pushed him back on his pillow as the father was struggling for breath in a hospital bed shortly after an operation to his lung. Dew v. Clark, and Re Nightingale should be contrasted with Banks v. Goodfellow (see p. 28 above). In this case the testator believed that he was being pursued by evil spirits and by a person who was already dead and who had not been connected to him in any way. Although the court considered that the testator was suffering from an insane delusion, it did not affect his testamentary capacity, as the insane delusion did not affect the way in which he disposed of his property by will. Consequently, the will was valid. It is possible that an insane delusion may only affect the validity of part of a will. If this is so, probate will be granted to such parts of the will as are not affected by the insane delusion. In In Re Bohrmann's Estate [1938] 1 All ER 271 a testator made three codicils to his will all giving substantial gifts to various charities. He later began to suffer from the insane delusion that the London County Council (now abolished) was persecuting him. This insane belief arose out of the fact that the Council was trying to acquire a part of his land on which to build a hospital. As a result of this delusion the testator executed a fourth codicil, of which one clause provided that all references to English charities should be read as referring to corresponding American charities. Probate was granted of the will and the four codicils excluding this particular clause in the fourth codicil.

(d) The time at which a testator must have testamentary capacity As a general rule it must be established that the testator had testamentary capacity at the time he executed the will. However, under the rule in Parker v. Felgate (1883) 8 PD 171, where a testator dies leaving a professionally drawn will, he can be regarded as having sufficient testamentary capacity if: (i)

he had such capacity at the time when he gave instructions to a solicitor for the preparation of the will; and (ii) the will was prepared in accordance with his instructions; and (iii) at the time of executing the will, he was capable of understanding, and did in fact understand, that he was executing a will for which he gave instructions. The rule was extended in In the Estate of Wallace [1952] 2 TLR 925 to apply to a will drafted by a solicitor on the basis of the client's written instructions contained in a document entitled 'Last wish' and signed by the

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testator. But in Batten Singh v. Amirchand [1948] AC 161, the Privy Council expressed the view that due to the obvious potential for abuse, the rule in Parker v. Felgate should be applied only with the greatest of caution - particularly where, as in the case before them, the testator was relying upon a third party to convey the instructions to the solicitor. The testator in this case had previously made a will in favour of his nephews. Subsequently, shortly before he was to die of consumption, he made a will in favour of two of his creditors, the instructions being sent to the solicitor via a lay intermediary. One of the grounds on which the Privy Council refused to uphold the will was that there were reasons to be suspicious as to whether the wishes of the testator had been correctly relayed to the solicitor by the intermediary. (e)

Burden of proof

The legal burden of proof is on the person(s) seeking to uphold the will (known as the propounder(s) of the will) to establish that the will is valid. However, where one of the following rebuttable presumptions apply, the evidential burden may, in some circumstances, be on the person(s) attacking the will to bring forward evidence that the will is invalid: (i J Where the will is rational on the face of it In this circumstance it is presumed that the testator had testamentary capacity at the time the will was made and therefore the person(s) attacking the will must bring before the court evidence of lack of testamentary capacity. An example of a will that was irrational on its face was the will of Sir Joseph Jekyll, once Master of the Rolls, who left all his estate to payoff the National Debt. The will was set aside on the grounds of lack of testamentary capacity, the judge commenting that the gift was a very foolish one, such that he 'might as well have attempted to stop the middle arch of Blackfriars Bridge with his full bottomed wig' (Croake James 'Curiosities of Law and Laywers', p. 491) (iiJ Where the presumption of continuance applies Under this presumption, the existence of a particular state of affairs in the past justifies an inference that it is continuing down until the moment in time into which the court is inquiring. For example, if it is proved to the satisfaction of the court that the testator had testamentary capacity on 23 September 1995, this is presumed to continue until satisfactory evidence is brought to the contrary. So if the testator executes his will on 28 September, any person attacking the validity of the will will need to bring evidence of a change in circumstances between 23 September and 28 September.

The Creation of a Valid Will

33

Finally, a practical note on the issue of testamentary capacity. Where doubt may be cast upon the testamentary capacity of the testator, it is normal practice in the case of professionally drawn wills to get a doctor to examine the testator at the time of execution of the will and to provide a statement as to the testator's mental capacity. If possible it is also desirable to ask the doctor to witness the will.

(1)

Statutory wills

Where a person lacks testamentary capacity, it may be possible for a 'statutory' will to be executed on their behalf so as to enable them to die testate. Under the Mental Health Act 1983 s. 96 (1) the Court of Protection has the power to order that a will be executed for an adult who is mentally disordered within the meaning of the Act, where the court believes that the person does not have sufficient mental capacity to execute a will for themselves. In Re D (J) [1982] 2 All ER 37, Megarry VC explained that in drawing up a statutory will it is the actual mental patient in question who must be considered, and not a hypothetical patient. Moreover the court must take the patient as she was before she lost their mental capacity and draft the will as she would probably have done for herself. In doing this the patient should be envisaged as being advised by competent solicitors as to the terms of the will. A statutory will has to be executed in accordance with the special formalities set out in s.103A Mental Health Act 1983.

2.2

Knowledge and Approval

In addition to having testamentary capacity, a testator must know and approve the contents of their will. (Statutory wills - see section 2.1 - form an exception to this rule.) • To be taken to know the contents of their will, a testator must be aware of, and understand the terms of the will, although understanding does not necessarily require an understanding of the precise legal effect of the terms . • To approve the terms of the will, the testator must execute a will in those terms of his own volition, and not as a result of the undue influence of another (see below). The knowledge and approval of the testator may also be absent on account of mistake or fraud. The requirement of knowledge and approval is particularly significant in the circumstances where the will has been

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The Law Relating to Wills

drawn up for the testator by a third party. The third party may be a friend or relative or a professional person such as a solicitor. (a)

Time of knowledge and approval

As a general rule, the point in time at which the testator must know and approve the contents of their will is at the time when he executes the will. However, following the principle laid down in Parker v. Felgate (see p. 31 above) for testamentary capacity, it was held in In the Estate of Wallace [1952] 2 TLR 925, that a will may be valid despite lack of knowledge and approval at the time of execution provided: (i)

the testator knew and approved the contents of the will at the time at which he gave instructions to a solicitor to draft their will; (ii) the will was prepared in accordance with his instructions; and (iii) at the time the will was executed the testator understood that he was executing a will for which he had earlier given instructions. On the facts of the case a testator who was seriously ill had written and signed a document entitled 'Last wish'. At this time he knew and approved the contents of the document. A solicitor then prepared his will in accordance with the document. At the time when the testator executed his will, which was on the day before he died, he did not know and approve the contents, which were not read over to him. Nevertheless, on the basis of the above principles the will was held to be valid. (b)

Burden of proof

The legal burden of proof to establish knowledge and approval lies with the propounder of the will. However, once it has been established that the testator had testamentary capacity and that the proper formalities for the execution of the will have been complied with, a presumption of knowledge and approval arises. The evidential burden then shifts to the person(s) attacking the will to provide evidence to rebut the presumption (Guardhouse v. Blackburn (1866) LR P & D 109). Nevertheless, there are two circumstances where there is no presumption of knowledge and approval even in circumstances where it can be shown that the testator had testamentary capacity and the will was properly executed. These are: • where the testator is blind, dumb, or illiterate or the will is signed on behalf of the testator; and • where there are suspicious circumstances.

The Creation of a Valid Will

(c)

35

Blind, dumb or illiterate testators: wills signed on a testator's behalf

In order for a will to be properly executed it must, among other things, be signed by the testator, or by someone else on the testator's behalf and under the testator's direction (see section 2.3). Under Rule 13 NonContentious Probate Rules 1987, where a will is signed on behalf of the testator or where the testator is blind, dumb, or illiterate, evidence that the testator had actual knowledge of the contents of the will is required before the will can be admitted to probate. The registrar may require evidence on affidavit of the testator's knowledge and approval. One form of affirmative evidence, although not conclusive, is to establish that the will was read over by, or read to the testator when it was executed. At a practical level, the need for affirmative evidence is usually avoided by including as part of the attestation clause (see section 2.3) words to the effect that the will was read over to the testator and that the testator thoroughly understood and approved the contents of the will. (d)

Suspicious circumstances

Where a person who writes or otherwise prepares a will takes a substantial benefit under that will, this will be regarded as a suspicious circumstance. Similarly, where a person, rather than preparing or writing the will themselves, suggests the terms of the will to the testator and takes that testator along to a solicitor of that person's choice, the circumstances will be regarded as being suspicious; Fulton v. Andrew (1875) LR 7 HL. It will also be a suspicious circumstance if the will is written or prepared by a close relative of a substantial beneficiary (Tyrrell v. Painton [1894] P. 151). In Wintle v. Nye [1959]1 All ER 552, the House of Lords pointed out that the degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled, or it may be so serious that it is virtually impossible to remove it. On the facts of the case the suspicion was very great and could not be dispelled. An elderly woman, who had no experience of dealing with money and who placed heavy reliance upon the family solicitor, died leaving most of her sizeable estate to him. This case should be compared to Barry v. Butlin (1838) 2 Moo PC 480, where a testator made a will at the home of his attorney, in the attorney's handwriting, and left approximately one-quarter of his estate to the attorney, leaving the rest to friends. The testator's son challenged the will on the grounds of (among other things) suspicious circumstances. The court held that evidence that the will was executed before two independent witnesses, coupled with evidence that the testator's son had been excluded from his will because of his criminal conduct, was sufficient to dispel the suspicion.

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The Law Relating to Wills

It is important to understand that, although the House of Lords in Wintle v. Nye stated that the law did not prevent a solicitor from taking a benefit under a will, a solicitor might now be in breach of the Law Society's Rules of Professional Conduct if he or she takes a benefit in some circumstances. The Rules provide that where a client intends making a gift to a solicitor, or to the solicitor's partner, or to a member of the solicitor's staff, or to the families of any of them, and the gift is of a significant amount - either in itself or in relation to the size of the client's estate and the reasonable expectations of the beneficiaries - the solicitor must advise the client to be independently advised as to the gift; if the client declines, the solicitor must refuse to act. Thus, where a gift is of a significant amount for the purpose of the Rules of Professional Conduct, but the testator has been independently advised, under succession law the gift will still be regarded as being made in suspicious circumstances where the solicitor takes a substantial benefit. Nevertheless, the affirmative evidence of the independent advice should enable the solicitor who has benefited to provide the affirmative evidence of knowledge and approval.

(e)

Mistake

The knowledge and approval of the testator may be absent by reason of a mistake on the part of the testator or of a person employed by the testator to draft the will. The mistake may relate to the whole will or to only part of it. In In the Goods of Hunt [1875] LR P & D 250, the mistake related to the whole will. A woman who was living with her sister prepared two wills in similar terms for their respective execution. By mistake, she executed the will of her sister rather than the will she had prepared to be her own. Probate of the will was not granted on the ground that the woman would not have executed the will had she known it had the content of the will she had drawn up for her sister. In Re Phelan [1972] Fam 33, parts of a will were excluded from probate. The facts of the case are more fully explained in section 3.1, but revocation clauses contained in each of three wills executed by a testator were excluded from probate on the grounds that the testator did not know and approve them. In the circumstances the court found that he had inadvertently included the revocation clause in each of the three wills. A distinction must be drawn between the situation where a testator does not know and approve the contents of their will, and one where he knows and approves the contents but is mistaken as to the legal effect of the words. In the latter case the words will be admissible to probate despite the testator's mistake. Thus, in Collins v. Elstone [1893] p. 1, where a testatrix was given incorrect information as to the extent to which a revocation

The Creation of a Valid Will

37

clause in her will operated, but where she knew about and approved the clause, the words were nevertheless admitted to probate. Section 20 Administration of Justice Act 1982 allows the court to order rectification of a will, either by omitting or inserting words, where there has been a failure to carry out the testator's instructions due to clerical error or a failure to understand the testator's instructions. An application for rectification must be made to the registrar within six months of the grant of representation and should be supported by an affidavit setting out the grounds for rectification.

(1) Undue influence Undue influence occurs when a testator is coerced into making a will or some part of a will which he does not want to make. It was said by Lord Penzance in Hall v. Hall (1868) LR 1 P & D 481 at 482, that undue influence was 'pressure of whatever character ... so exerted as to overpower the volition without convincing the judgement'. This needs to be contrasted with the situation where a person is persuaded, so that at the end, they do wish to dispose of their property in the particular way they have been pressurized into leaving it. In Wingrove v. Wingrove (1885) 11 PD 81, it was said that if a young man became 'caught in the toils of a harlot' who was able to exert much influence over him and induced him to make a will in her favour to the exclusion of his wife and children, this would not amount to undue influence. The exercise of an immoral influence over the testator does not amount to undue influence if the young man wishes to leave his property to the harlot as a result of her persuasion. The coercion which is essential to a finding of undue influence can take various forms. It may involve actual physical force, or perhaps incessant talking to a sick, frail or elderly testator. The burden of proof always lies with the person who alleges undue influence. This is even so where there is a confidential relationship between the testator and the beneficiary which in the law of contract would give rise to a presumption of undue influence. Thus, in Parfitt v. Lawless (1872) LR 2 P & D 462 a testatrix left her residuary estate to a Roman Catholic priest who was her confessor, and who lived with her and her husband. Undue influence was not established as there was no positive evidence of undue influence and the equitable presumption of undue influence applicable to contractual relationships could not be raised. Although the presumption of undue influence will not arise out of a confidential relationship recognized by law, such a presumption may arise from the circumstances which surround the making of the will. In Re Harden [1959] CYLB 3448; (1959) (The Times 30 June) the beneficiary, a

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The Law Relating to Wills

spiritualist medium, transmitted messages 'from the other side' to the testatrix as to what she should do with her property on death. The messages were dictated to the testatrix and resulted in her executing two wills which made the medium a substantial beneficiary of her estate. Stevenson J held that the medium had taken control of the testatrix's mind, so that effectively she had written what he wanted rather than 'the record of her own mind'. As a result the wills were invalid on account of undue influence.

(g)

Fraud

Knowledge and approval will not be present if a testator either makes a gift by will, or excludes a person from benefit as a result of false statements which have been made about the intended beneficiary's character or conduct. In one case a will was held to be invalid where it revoked a gift to a beneficiary whom the testator was wrongly led to believe was trying to poison him. Further, in In the Estate of Posner [1953] p. 557 a gift to a beneficiary who fraudulently misrepresented herself to be the testator's wife, was held to be invalid. As with undue influence, the legal burden of proof lies with the person who is alleging the fraud.

2.3

Formal Requirements for the Creation of a Will

The Wills Act 1837 s. 9, as substituted by the Administration of Justice Act 1982 s. 17, sets out the formal requirements to be satisfied for the creation of a valid will. The section provides that No will shall be valid unless: (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either: (i) attests and signs the will; or (ii) acknowledges his signature in the presence of the testator (but not necessarily in the presence of the other witness) but no form of attestation shall be necessary. These requirements apply to all persons who die after 31 December 1982. It should therefore be noted that the date on which the will was executed is

The Creation of a Valid Will

39

irrelevant, so that even a will executed prior to 1983 is still governed by the substituted s. 9. The requirements, although still substantial, represent a slight relaxation of the requirements set down in the original s. 9. They exist in an attempt to safeguard against fraud, forgery and undue influence. The formalities are also designed to achieve certainty of intention on the part of the testator, and to encourage the testator to think carefully about how he disposes of his property on death, rather than making hasty, ill-considered dispositions. Most of the wills that fail to satisfy the formal requirements are 'homemade' wills, but it is impossible to assess the extent to which a failure to comply with formalities causes such wills to be invalid, as many wills where the formalities have not been complied with are never submitted to probate on legal advice obtained after the death of the testator. However, the proportion of home-made wills has declined from 31 per cent in 1959 to 11.5 per cent in 1989 (Masson [1994] Conv. 267). Some countries have attempted to deal with the problem of failure to satisfy the exact formalities, by conferring on the courts a dispensing power to admit a will to probate if the court is satisfied that the will is genuine, despite its defective execution (see, for example, Queensland Succession Act 1982 s. 9). This is known as the doctrine of 'substantial compliance'. The problem with the whole idea behind such a power is that it tends to lead to litigation, causing expense and delay. This is particularly unacceptable where the testator's estate is small, as is often the case where a home-made will has been drawn up. Another alternative, and an equally unacceptable approach to the problem, would be to require that all wills are prepared by a solicitor. The Law Reform Committee (22nd Report (1980) Cmnd 7902 para 2.23) rejected this suggestion, mainly because they thought that this would deter some people from making wills. The various elements of the requirements set out in the substituted s.9 are now examined. Privileged wills, which form an exception to the need to satisfy formalities, are discussed in section 2.5.

(a)

Writing

The substituted s. 9 Wills Act 1837 provides that a will must be in writing. The will may be hand-written, typed, printed or in lithographed form. The writing may be that of the testator or of any other person, and it may be written in any language or even in code, provided that the code can be deciphered (Kell v. Charmer (1856) 23 Beav 195; written in jeweller's code). There is no restriction as to the materials with which and on which the will may be written, provided that the materials produce a visible form (Hodson v. Barnes (1926) 43 TLR 71). However, a 1974 direction from the Principal Registry of the Family Division says that it is desirable that wills

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The Law Relating to Wills

are prepared in a form which makes their photographic reproduction easy. Nevertheless wills have been produced in some very odd ways indeed. For instance, in Hodson v. Barnes the will was written on an eggshell; and in a Canadian case Murray [1963] CLY 3621, the will was written on a cigarette packet. It is arguable that in view of technological advances, the requirement of writing should be relaxed to allow, for example, a will to be produced on a video tape. This would seem to be possible in any case if the video is in teletext form, as this would satisfy the requirement of writing. But other video forms ought to be equally acceptable, as they would equally achieve the aims of formal requirements in reducing the chances of fraud, forgery and undue influence and making the testator give adequate consideration to the dispositions. Although a will may be written in pencil throughout, where it is written in a combination of pencil and ink, there is a rebuttable presumption that any pencil writing is merely deliberative, and such parts will be excluded from probate unless evidence can be provided to the effect that the testator intended the pencil to be final (In the Goods of Adam [1872] LR 2 P & D 367).

(b) The meaning of signature The substituted s. 9 Wills Act 1837 provides that the will must be signed by the testator or by some other person in the testator's presence and under his direction. The term 'signature' has been widely interpreted by the courts to cover any mark of the testator which is intended as a signature. Thus, a thumb print, the initials of the testator, signature in an assumed name, and a mark made by a rubber stamp with the testator's name on it have all been held to amount to valid signatures. Moreover, it was decided in Re Cooks' Estate [1960] 1 ALL ER 639 that the signature need not consist of a name at all. In that case a will was signed with the words 'your loving mother' placed at the end of the document. It seems that part of a signature may in some cases be sufficient to validate a will. This will be so in circumstances where the testator intended the part actually written down to be the complete signature. In the somewhat dubious decision of Re Chalcraft's Goods [1948] p. 222, it was held that a signature was valid where a testatrix, on the point of death, started to sign her normal signature 'E. Cha1craft' but after writing 'E. Chal' became too weak to continue. It was held that the signature was valid on the basis of a finding that this was all she intended to put for her signature, being the best she could do in the weak condition she found herself. In Weatherall v. Pearce (1994) The Times, 7 November, the question arose in relation to a home-made will made on a pre-printed form

The Creation of a Valid Will 41

purchased from a stationers, as to whether the testatrix's name appearing in the middle of the attestation clause, but nowhere else at the end of the will, could constitute her signature for the purpose of the substituted s.9. With the aid of extrinsic evidence Kolbert J held, on the facts, that the testator had intended her name as included in the attestation clause to be her signature and thus the will had been signed by the testator in accordance with s.9 as substituted.

(c)

Signature by another person

The will need not be signed by the testator, provided that it is signed by another person both in the testator's presence and under his direction. The concept of 'presence' has a physical and mental dimension to it, which will be discussed below in relation to the requirement that witnesses be present. As the signature must also be made under the testator's direction, the testator's physical and mental condition must be such that he could either object to, or assent to the signature made on his behalf. In practice, a will is most likely to be signed on behalf of a testator in circumstances where the testator is too weak through illness to sign for himself. The person who signs on behalf of the testator may sign his or her own name or in the testator's name (In the Goods of Clark (1858) 1 Sw & Tr 22). The person may be one of the witnesses to the will (Smith v. Harris (1845) 1 Rob Ecc 262). It is preferable in any case for the person signing on behalf of the testator to sign in his or her own name and to state that he or she is signing on behalf of the testator, in the testator's presence and under his direction, as this avoids any uncertainty as to whether he or she is only signing as a witness.

(d) Intention to give effect to the will The substituted s. 9 provides that it must appear from the will that the testator intended by his signature to give effect to the will. Originally the Wills Act 1837 s. 9 required that the signature of the testator was 'at the foot or end' of the will. The courts invariably construed this requirement strictly, and as a result the Wills Act Amendment Act 1852 was passed to allow a wider meaning to the requirement. This Act basically provided that a will could not be challenged merely because there was a space between the end and the signature. This really defeated the purpose of the original s.9, which was to ensure that nothing could be added in later, between the end and the testator's signature, and it also led to much litigation, resulting in a number of unsatisfactory decisions. Under the present provisions the signature can theoretically be placed anywhere on the document so long as it is apparent from the position that it is intended

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The Law Relating to Wills

to give effect to the will. If a court accepts that the signature was so placed as to show an intention to give effect to the will, it seems that all of the will could, depending on the circumstances, be admissible to probate even though some of the content appears physically after the signature. It is instructive to look at some pre-1983 cases, decided under the old rules, in order to speculate on whether an intention to give effect to the will would be shown for the purpose of the new rules. In Re Hornby [1946] 2 All ER 150, a case decided under the Wills Act Amendment Act 1852, the testator had drawn an oblong box on the right-hand side, half-way down the sheet of paper on which his will was written, the content of the will completely filling the page. The will was upheld on the basis of an intention to validate the whole will, and thus the position would seem to be the same today. This case can be compared with Re Stalman (1931) 145 LT 339 CA, also decided under the 1852 Act. The testator in this case had written his will on a single sheet, and there being no room at the bottom, had placed his signature in the top right-hand comer. The court refused to admit the will to probate on the ground that the 1852 Act did not give the court the liberty to sanction a signature which was placed at the beginning of the will. It is possible, however, that under the new law a signature at the top of the will, in circumstances where there is no room at the bottom, may manifest sufficient intention to give effect to the whole will. Commonly problems are encountered where a signature is placed on a separate piece of paper or in an envelope containing the otherwise unsigned will. In both instances whether the will is validly signed depends upon whether the intention of placing the signature on the separate sheet or on the envelope is in order to ratify the will, or only to identify the will. The intention of the testator is a question of fact and if the purpose is only that of identification, the will is invalid. In In the Estate of Bean [1944] P 83 where the testator had forgotten to sign his will but had written his name and address on the envelope, the court refused probate of the will as it was found that the testator had only written his name on the envelope for the purpose of identifying the will. In contrast, in Re Mann's Goods [1942] P 146, the testatrix wrote on an envelope, which was then placed in a still larger envelope, 'Last Will and Testament of J. C. Mann', signed the envelope and had it witnessed. The court held that the testatrix intended the signature to give effect to the will, which was therefore admissible to probate. A more recent decision, decided under the substituted s.9, is Wood v. Smith [1991] 3 WLR 514. In this case the testator wrote in his own handwriting at the top of his will, and before writing the rest of his will, 'My Will by Percy Winterbone'. He did not sign his name at the foot of the document. There was evidence from the witnesses that the testator

The Creation of a Valid Will 43

regarded his name at the top, to be his signature. On these facts the Court of Appeal held that, despite the fact that the will had been signed before its provisions had been written, by writing his name and the dispositive provisions in one single operation, the deceased had provided clear evidence that he intended the signature to give effect to the provisions. Thus the will had been duly executed. According to Corbett v. Newey (see p. 19) for a validly executed will it is essential that the testator intends his signature to be effective from the moment of execution. In this case the testatrix executed a will but she instructed her solicitor that the will was not to come into effect until certain inter vivos gifts had been completed. For this reason she left her will undated, under the (wrongful) impression that the will would have no effect until subsequently dated by the solicitor when the gifts were effected. The Court of Appeal held that the will was invalid, as it was not signed by the testatrix at a time when she had the requisite animus testandi (testimentary intent). To have testimentary intent, a testator must intend the will to be effective from the moment of execution, rather than being dependent upon some future event or condition.

(e)

Presence of witnesses

The Wills Act 1837, as substituted, provides that the testator's signature must be made or acknowledged in the presence of two or more witnesses present at the same time. To be present at signing, the witnesses must be capable of seeing the testator sign, although they need not actually look at the signature or know that the document is a will, as the witnessing is of the signature (In the Case of Benjamin [1934] 150 LT 417). The test is one of whether the witness could have seen the testator signing if they wished to do so, not whether the witnesses actually saw the testator signing. An extreme example of the application of this principle is seen in Casson v. Dade [1781]1 Bro CC 99. On its facts the case concerned the meaning of presence with regard to the testator being present when the witnesses signed, rather than the witnesses being present when the testator signed. However, the term 'presence' takes on the same meaning in either situation. A testatrix went to her solicitor's office in order to sign her will. Once she had signed it, finding the office too hot, she went outside to sit in her carriage, from where she was in fact able to see, through the window of the office, the witnesses signing the will. On the basis that at the moment the witnesses signed there was a line of sight enabling the testatrix, if she wanted to, to see the witnesses signing, the witnessing was held to be valid.

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The Law Relating to Wills

In contrast, if a witness is present in the same room as the testator but is unaware what the testator is doing, the attestation will be invalid. In Brown v. Skirrow [1902] P 3 a testatrix took her will to the grocer's shop to be executed, asking two of the shop assistants to act as witnesses. The will was held to be invalid as one of the assistants, who was serving a customer at the time was unaware that the testatrix was signing her will. If a witness leaves the room before the testator completes his signature, the attestation will also be invalid (Re Colling [1972]1 WLR 1440). The substituted s. 9 provides that the testator must either sign or acknowledge his signature in the presence of at least two witnesses present at the same time. Acknowledgement may be by words or conduct. Ideally, to avoid doubt the acknowledgement should be express, but in Daintree v. Butcher (1888) 13 PD 102, where the testatrix simply said that she had a document which she needed two witnesses to sign, this was held to be sufficient acknowledgement. The decision in Weatherall v. Pearce (see p. 40) was similar. The testatrix in that case simply told the witnesses that she had come to the house to execute her will, which she showed to the witnesses. The case confirms the view that acknowledgement need not be in any set form and that it is sufficient 'to proffer a document which all concerned know to be a will for the witnesses to sign and no express declaration is necessary'. In In the Goods of Davies [1850] 2 Rob Ecc 337, it was said that acknowledgement may possibly take the form of a gesture whereby the testator draws a dry pen over an existing signature on the will. However, for a valid acknowledgement - whether express or implied - the witnesses must each or all at one time actually see, or at least have the opportunity to see the testator's signature. In Re Groffman [1969] 2 All ER 108, the court held that an acknowledgement was invalid where the will was inside the testator's pocket at the only time when both witnesses were present, and the testator simply gestured to his coat pocket saying, 'I should like you to witness my will'. He then took the witnesses separately to a room and showed them his signature on the will. The recent case of Couser v. Couser (NLJ 3 May 1996, p. 651) took a very liberal interpretation of the requirement that the witnesses should both be present at the same time when the testator signed or acknowledged his signature. The testator had made his own will on a printed form and had signed it before taking it to two friends (husband and wife) and asking them to witness it. The wife went inside with the testator while the husband stayed outside. The testator acknowledged his signature in the presence of the wife, who then signed as a witness. The husband came in from outside about ten minutes later and signed as the second witness, after the testator had acknowledged his signature. At this time the wife (the first witness) was standing about ten feet away, making coffee and

The Creation of a Valid Will 45

expressing doubts as to the validity of the execution of the will. On these facts Colyer QC held that the will had been validly executed. Although the testator had acknowledged his signature in the presence of the wife alone when she had signed as a witness, both witnesses were present when the testator had again acknowledged his signature before the husband signed as the second witness. What was essential for valid execution was that there was a point in time when all the parties to the transaction (witnesses and testator) were concerned in it together and simultaneously.

(0 Choice of witnesses The requirement that two witnesses be involved in the execution procedure should mean that evidence can be obtained after the testator's death as to what actually happened at the time the will was executed. From the practical point of view it is a good idea to select persons who are younger than the testator and so more likely to survive him or her. It is also preferable to choose people who can easily be traced, rather than some complete stranger, someone of no fixed address, or someone who is likely to be in a far away land at the time of the testator's death. There are no special rules as to who may be a witness to a will, but the requirement that the witnesses be 'present' at the time that the testator signs or acknowledges his signature, requires that the witnesses are both capable of seeing the signature and understanding what they are doing. Thus, a blind person cannot be a witness and an illiterate person would be an unsafe choice. Similarly young children, drunkards, and those of unsound mind should not be chosen as witnesses as they may not appreciate what they are required to do. lt is vital also that the selection of witnesses takes account of the effects of the Wills Act 1837 s. 15. Without affecting the validity of the will itself, s. 15 deprives attesting witnesses and their spouses of taking any benefit under the will. In this connection it should be noted that a professional charging clause, allowing a professional person appointed as executor to charge for work done in the administration of the estate, is for the purpose of s. 15, regarded as a beneficial interest under the will. Consequently a solicitor should not witness the will if it appoints the solicitor or a firm in which the solicitor is or may become a partner, as executor. Section 15 of the Wills Act 1837 is discussed in more detail in section 4.7. (g)

Attestation

Each witness must either attest and sign the will or acknowledge their signature in the presence of the testator. They need not necessarily sign or acknowledge in the presence of each other. Acknowledgement by a witness

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The Law Relating to Wills

has the same meaning as acknowledgement by a testator. Attesting the will requires that the witnesses have put their signatures on the will with the intention of validating the testator's signature. The witness's signature does not have to be in a particular place on the will, but only so positioned as to show an intention to ratify the testator's signature. Thus in Re Beadle [1974] 1 All ER 493, where the witnesses signed an envelope containing a will, as part of the process of identifying the will, the court held that the will had not been attested. In contrast to a testator, a witness must sign the will for themselves rather than have a third party sign on their behalf (In the Estate of Bullock [1968] NI 96). However, as with a testator, the term 'signature' is widely interpreted to mean any mark intended by the witness to be their signature. For example, in In the Goods of Sperling [1863] 3 Sw & Tr 272, a witness attested by writing 'servant to Mr. Sperling'. This was held to be sufficient, as it was intended to identify the witness as the person attesting. (h)

Attestation clauses

A professionally drawn will will contain an attestation clause. An attestation clause recites that the required formalities for the execution of a will have been complied with (see Appendix for an example of such a clause). Although the substituted s. 9 Wills Act 1837 provides that no form of attestation is necessary, it is highly desirable to include an attestation clause, because it gives rise to a presumption of due execution of the will and thus facilitates the obtaining of a grant of probate. If the will does not contain an attestation clause, delay and expense will occur, as under Rule 12(2) Non-Contentious Probate Rules 1987, the Registrar may require an affidavit of due execution from either one of the witnesses or, if this is not possible, from some other person who was present at the time the will was executed. Failing either of these options, the Registrar may accept evidence from some other person as to the fact that the signature on the will is the testator's handwriting, but if no evidence of any kind is available, a hearing before a judge will usually be necessary. The court may then admit the will to probate applying the Latin maxim omnia praesumuntur rite ac solemn iter esse acta, which means 'all the required formalities are presumed to have been complied with'. This maxim was applied in Weatherall v. Pearce (see p. 40), which illustrates a somewhat relaxed approach by the courts to compliance with s. 9 as amended. On the facts of the case, a home-made will on a pre-printed form contained a standard attestation clause to the effect that the testator had signed the will in the presence of both witnesses being present at the same time. However, it was accepted

The Creation of a Valid Will 47

that the testatrix did not write anything in front of either of the witnesses, although she impliedly acknowledged her signature. Despite the fact that the two witnesses said that they were unable to affirm by affidavit that they had both been present at the time the testatrix impliedly acknowledged her signature, Kolbert J said that the maxim omnia praesumuntur rite esse acta should be applied as there was no cogent evidence to suggest that attestation was in defective in any way. As an attestation clause merely raises a presumption that the will has been duly executed. Where it is doubtful from the face of the will whether the formalities have been complied with, affidavit evidence will be required despite the inclusion of an attestation clause. For example, if the signatures of the witnesses appeared above that of the testator the registrar would still require affidavit evidence.

2.4

The Doctrine of Incorporation by Reference

The doctrine of incorporation by reference allows documents which satisfy certain conditions to be regarded as part of a will, even though the documents have not themselves been executed. When, and only when, a document has been effectively incorporated into a will is it admissible to probate as part of the will. Three requirements must be satisfied before a document can be effectively incorporated into a will. The document must be: • in existence at the date on which the will is executed; • referred to in the will as being in existence; and • clearly identified. We shall look at each of these requirements in turn.

(a)

The document is in existence at the date of the will

The purpose of this requirement is to ensure that the testator is not able to make future unattested testamentary dispositions. Ironically however, if a testator should choose to create a fully secret (as opposed to a half-secret) trust in his will, it seems that he may effectively make future unattested dispositions. A fully secret trust arises where the trustee appears to take beneficially on the face of the will, but during the testator's lifetime the trustee has agreed with the testator to hold the gift made in the will on specified trusts. For instance, suppose in the will a testator left '£5000 to my friend David absolutely' and at some point either before or after the execution of the

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The Law Relating to Wills

will, he told David that he was to hold the £5000 on trust for Samantha. Provided that David accepted this obligation during the testator's lifetime, a fully secret trust would be created. A half-secret trust arises where on the face of the will the testator names the trustee but does not name the beneficiary: for example, '£3000 to Thomas on trust for the purposes I have communicated to him'. Provided that either before or contemporaneously with the execution of the will, the terms of the trust have been fully communicated to and accepted by Thomas, there will be a valid half-secret trust (see Re Keen [1937] Ch 236). However, because of the much-criticized requirement that the communication of the half-secret trust be before or at the time of the execution of the will (see, for example, Holdsworth (1937) 53 LQR 501), the half-secret trust does not allow for the making of future unattested testamentary dispositions. It is important to appreciate that if a document is not in existence at the date of the will, but the will is republished (see further section 3.8) or a codicil is made, provided the document is in existence at the date of the republished will or codicil, it is validly incorporated so long as the other requirements set out above are satisfied (In the Goods of Lady Truro (1866) LRIP&D201). (b) The document should be referred to as being in existence at the date of the will A case in which this condition was not satisfied is University of North Wales v. Taylor [1908] p. 140. Here a testator left by will a gift which was conditional upon compliance with 'any memorandum found in my papers'. The court held that the reference to 'any memorandum' could refer to a document not in existence at the date of the will. Consequently the document was not validly incorporated. Similarly, the incorporation of a document was held to be invalid in Re Bateman's Will Trusts [1970]1 All ER 817, where the executors of the will in question were directed to pay income from a fund to 'such persons as shall be stated by me in a sealed letter in my handwriting and addressed to my trustee'. If the testator had referred to 'the memorandum already written by me ... ', this would have been sufficient reference to the existence of the document at the date of the will. If a document not in existence at the date of the will becomes incorporated by republication of the will or the execution of a codicil, it is still necessary for a valid incorporation, to establish that the document is referred to as being in existence at the date of the republished will or codicil (In the Goods of Smart [1902] P 238).

The Creation of a Valid Will 49

(c)

The document must be clearly identified

This is the last of the three requirements for a valid incorporation by reference. For this purpose it was held in Allen v. Maddock (1858) II Moo 427 that parol evidence is admissible. The practise of incorporating a document by reference is generally to be discouraged because of the chance that the documents referred to may be lost before the testator's death. However, the doctrine is useful where there are detailed issues which are too lengthy to conveniently be included in a will. For example, the inventory of a collection of antique furniture, or list of a collection of books. Also, a will which is in itself invalid because it has not been properly executed can, through the doctrine, be incorporated into a validly executed codicil. For instance, in In the Goods of Heathcote (1881) 6 PD 30, a testatrix made an invalid will. She later made a properly executed codicil which she described as being the codicil to 'the last will and testament made by me'. Once it was established that the testatrix had only ever executed one will, the court held that the invalid will, being sufficiently described in the codicil, was validly incorporated by reference.

2.5

Privileged Wills

Although formalities are generally thought to be desirable for making a will, it is felt that in some circumstances where a testator finds himself in great danger and unable to seek professional advice before making a will, he should be able to make a will without formalities. The situations where it is possible to make a will without compliance with formalities are set down in the Wills Act 1837 s. II, and the Wills (Soldiers and Sailors) Act 1918. They do not extend to all situations where a person might find himself in great danger. For example, a mountaineer or a round the world yachtswoman would not be covered. In broad terms, the provisions are confined to sailors and persons in the armed forces. The Wills Act 1837 s. 11 provides that 'any soldier being on actual military service, or any mariner or seaman being at sea may dispose of his personal estate ... ' without formalities. The Wills (Soldiers and Sailors) Act 1918 extends the privilege to realty. Where the Acts apply, a privileged will can be made by a minor who cannot normally make a will. It is apparent from the case law that the statutory provisions have been liberally interpreted. This is perhaps because many of the decisions were either made during war time or shortly after the end of a war. At such times society generally has shown great respect and sympathy for armed

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forces personnel, and judges have arguably mirrored these feelings in their decisions. The term 'soldier' has been held to include a member of the Royal Air Force, a female army nurse, as well as naval or marine personnel who have at the relevant time been serving on land. In a leading Court of Appeal decision of Re Wingham [1949] P 187 it was said that the term soldier includes 'not only fighting men but also those who serve in the Forces as doctors, nurses, chaplains, WRNS, ATS and so forth ... ' The term 'actual military service' has resulted in much case law. It was explained in Re Wingham as arising where a soldier is serving in the Armed Forces 'in connection with military operations which are, or have been taking place or are believed to be imminent'. It was pointed out by Denning LJ that despite the rationale behind allowing privileged wills (see above), it would be mistaken to argue that a soldier who is not in danger, or who in fact has legal advice at hand, cannot make a privileged will. On the facts of the case an airman who died in a training exercise in Canada during the Second World War was held to be on actual military service. More recently in Re Jones [1981] 1 All ER 1, the court held that acting in internal security operations against terrorists in Northern Ireland amounted to actual military service. The fact that the enemy were terrorists rather than an opposing army was held to be irrelevant; the test was the nature and act of the deceased and his associates. The terms 'mariner or seaman' are similarly widely interpreted to include all ranks of the merchant navy and of HM naval and marine forces. They also include people who are engaged in a purely civilian capacity at sea - for example, in one case, a barman on a ship, and in another a typist on a liner. 'Being at sea' is also liberally interpreted, and has been held to include a sailor serving on board a vessel which was permanently stationed in the harbour (Re McMurdo's Goods (1868) LR 1 P & D 540) and a sailor who made a will on land while under orders to join his ship a few days later (In the Goods of Newland [1952] P 71). Where the testator is privileged the will can be made in any form, including orally. An oral will is known as a nuncupative will. In whatever way the will is made it is necessary to establish that the person speaking or writing is intending to dispose of his property on death by such a statement, although he need not appreciate that he is making a will. Thus in Re Stable [1919] P 7, probate of the deceased's words were granted where the deceased, a lieutenant, said to the woman to whom he was engaged, 'if I stop a bullet everything of mine will be yours'. This was said in the presence of a third party who was subsequently able to give evidence to the court of what had been said. Conversely, in In the Estate of Knibbs [1962] 2 All ER 829, the words of a barman on a liner who was held to

The Creation of a Valid Will

51

have privileged status were not admissible to probate as they showed no intention to dispose of his property on death by such statement. The barman said, in the course of a casual general conversation about family matters with the head barman on the liner, 'If anything happens to me, Iris will get everything that I have got'. The court held that, although the conversation may have revealed the intentions of the deceased, the circumstances of the statement were not such that the person hearing the statement was intended by the deceased to carry them into effect.

Summary 1 A will is only valid if it is made in the proper form by a person of full age who has testamentary capacity, and who knows and approves the contents of the will. 2 To have testamentary capacity, a testator must: (i) understand that he is disposing of his property on death in executing a will; (ii) have a recollection of the property of which they are disposing; and (iii) appreciate any moral claims upon him. The burden of establishing that the testator has testamentary capacity lies with those who are seeking to uphold the will, but in some circumstances the evidential burden can shift to those who are attacking the will to bring before the court evidence of lack of capacity. An insane delusion only affects the validity of the will if the delusion in some way influences the testator in the way in which he disposes of his property under his will. The appropriate time at which a testator must have testamentary capacity is at the time the will is executed, unless, in the case of a professionally drawn will, the rule in Parkerv. Fe/gate (see p. 31 above) can be invoked. 3 Where a person lacks testamentary capacity, it may be possible for the Court of Protection to order that a will be made on his or her behalf. In this case special formalities have to be complied with. 4 For a testator to be taken to know the contents of his will he must be aware of and understand the content of the will, although he need not understand the precise legal effect of each clause. To approve the contents of the will he must execute the will on his own volition, without being subject to fraud or undue influence. The relevant moment in time for establishing knowledge and approval is the date of execution of the will, unless in the case of a professionally drawn will, the rule in Parkerv. Fe/gate can be invoked. As a general rule a testator is presumed to know and approve the contents of his will, but there is no such presumption where: (i) the testator is blind, dumb, or illiterate, or where the will is signed on behalf of the testator, rather than by the testator in person; or

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(ii) there are suspicious circumstances. There may also be no knowledge and approval on the part of the testator on account of a mistake. Mistakes involving clerical errors or a failure to understand the testator's instructions can normally be rectified with the consent of the court. 5 Unless the will is privileged, the formal requirements set down in s. 9 Wills Act 1837, as substituted by s. 17 Administration of Justice Act 1982, must all be satisfied in order for the will to be valid. These require that a will is in writing, and signed by the testator or by someone else in his presence and under his direction. It must appear from the will that the testator intended his signature to give effect to the will, and the signature must be made or acknowledged in the presence of at least two witnesses present at the same time. Each witness must then sign or acknowledge his signature in the presence of the testator, but not necessarily in the presence of the other witness.

Exercises 1

2

3

Martin (who is aged 84) is a client of your firm. He has displayed considerable confusion about the date and time of his appointment with you. However, you have at last managed to see him, and he tells you that he wishes to revoke his existing will and make a new one. He is unable to tell you, approximately, when he made his last will. In taking his instructions for the new will, you notice that he is confused as to how many grandchildren he has. Furthermore, you have to remind him that he set up a trust for his children five years ago. He tells you he does not wish his daughter Elizabeth to benefit under his new will as he (quite wrongly) believes, despite her repeated denials to him, that she has married a Frenchman, and he intensely dislikes French people. What important considerations will you need to address before any new will of Martin can be made ready for execution? Sandra seeks your advice as to her chances of establishing that the will made by her father, William, two weeks before he died is invalid. The will leaves a substantial part of William's estate to Father Brown, a Roman Catholic priest with whom William became well acquainted in the last six months of his life. The will was written in Father Brown's handwriting, as William was too weak to write during the month before he died. Advise Sandra. True or false? To be valid:(a) the will must be signed by the testator in the presence of two witnesses. (b) the testator must sign the will at the foot or end, and the witnesses must sign directly underneath the testator's signature. (c) only the testator need be present at the time when a witness signs or acknowledges their signature. (d) a minor can be a witness to the testator's signature. (e) the spouse of the testator cannot be a witness.

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4 What is an attestation clause and why is such a clause in a will desirable? 5 'A privileged will can only be made by a person whose life is in danger and who does not have access to legal advise. Provided these two conditions are satisfied any person can make their will with a total disregard to the normal formal requirements.' Discuss. 6 Robert executed his will in 1994. By clause 2 of the will he left his collection of books to the Posten Museum, the collection being described in a list headed 'Posten Museum prepared by me'. After the execution of the will Robert finally got around to preparing the list, and in 1995 he executed a codicil to his will increasing the legacies to his children. Is the gift of books to the Posten Museum valid?

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3

Revocation, Alteration, Republication and Revival of

Wills

An essential characteristic of a will is that it is revocable (see section 1.1). This chapter explores the various methods by which a will or part of a will may be revoked. There are three voluntary methods of revocation, and two involuntary methods. The voluntary methods are: • express revocation • implied revocation • revocation by destruction. All of these voluntary methods require mental capacity to the same degree as for the creation of a will (Re Sabatini (1969) 114 Sol Jo 35) and also intention to revoke. The two involuntary methods of revocation are: • revocation by the marriage of the testator • revocation by the divorce of the testator. The revocation in these cases arises by operation of the law and as such does not require that the testator had mental capacity or intention to revoke. After looking at the methods by which a will can be revoked, consideration is given to the effect of alterations made to a will either before or after the execution of the will. Finally, issues relating to the republication and revival of wills are examined. Republication of a will or codicil is the process of confirming an unrevoked will or codicil, whereas revival of a will or codicil is where a revoked will or codicil is revived.

3.1

Express Revocation

Section 20 Wills Act 1837 provides that a will or codicil may be revoked by 'some writing declaring an intention to revoke the same, and executed

Revocation, Alteration, Republication, Revival 55

in the manner in which a will is ... required to be executed'. Professionally drawn wills are invariably drafted so as to contain an express revocation clause. An example of an express revocation clause is as follows: 'I revoke all former wills and testamentary dispositions heretofore made by me.' According to Re Hawksley's Settlement [1934] Ch 384, it is not sufficient for an express revocation clause that the will is simply described as the testator's 'last will'. Often wills begin with the words 'This is the last will and testament made by me [testator's name] .. .'. This form of commencement to a will does not, therefore, amount to an express revocation clause. Usually an express revocation clause revokes all the terms of any previous wills or codicils. But this need not be the case - revocation of only part of a will or codicil can be made. A codicil is often used when only parts of a will are to be revoked. As little as a single clause or single word can be revoked by this means. It is not necessary for the instrument in which the revocation clause is contained to be a will, only that the instrument is executed in compliance with the formalities for the creation of a will, set down in the Wills Act 1837 as amended (see section 2.3). So in Re Spracklan's Estate [1938]2 All ER 345, the Court of Appeal held that a letter which had been executed in compliance with the formalities of the Wills Act 1837 and in which the testatrix requested that her will should be destroyed by her bank manager who had possession of it, effected a valid express revocation of the earlier will under s. 20. It has already been said that voluntary revocation, such as express revocation, requires an intention to revoke on the part of the testator. In Lowthorpe-Lutwidge v. Lowthorpe-Lutwidge [1935] p. 151 Langton J said that there was a strong presumption where there was an express revocation clause that the testator had an intention to revoke. Such an intention can, however, be rebutted where it is established that the testator did not know and approve the revocation clause. For example, in Re Phelan [1972] Fam 33, an Irishman bought some pre-printed will forms from a stationers. He thought that each gift had to be put on a separate form. He made four separate gifts on four forms. Each form had a standard revocation clause at the top. He then executed each of the four forms one after another on the same day. It was argued that only the gift on the last form to be executed was admissible to probate, as the revocation clause on each form revoked the previous form executed. But Stirling J held that the testator did not know or approve the contents of the wills in so far as they related to the revocation clauses. Consequently all four wills were admissible to probate without the revocation clauses.

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The Law Relating to Wills

Re Phelan should be contrasted with Collins v. Elstone [1893] p. 1. If a revocation clause is included without the knowledge and approval of the testator, it is ineffective. But if it is included with the testator's knowledge and approval, even if the testator does not understand its legal effect, the revocation clause will still be valid. Thus, in Collins v. Elstone, the testatrix made a will and then later took out a life assurance policy. Later still she made a new will which contained a general revocation clause to reflect this policy, but she was led by the draftsman to believe, wrongly, that it had limited effect as it only revoked the earlier will to the extent that it was necessary to deal with the policy. Nevertheless the earlier will was held to have been completely revoked. It should be noted that where a draftsman makes a clerical error, or misunderstands the testator's instructions (neither of which was the case in Collins v. Elstone), the court now has power to rectify the will under s. 20 Administration of Justice Act 1982. Where a testator has privileged status (see section 2.5), the will may be revoked informally whether or not the will has been made formally (In the Estate of Gossage [1921] p. 194). However, it should be remembered that even where a testator has privileged status, it is necessary to establish that he had mental capacity and intention to make or revoke a will. The position of a minor in relation to the question of revocation of a priveleged will is interesting, because a minor can only make a will while he or she is privileged. Therefore, were it not for s. 3(3) Family Law Reform Act 1969, a minor who no longer had privileged status could end up in the position where he was unable to revoke a will which had been made while he had privileged status. Section 3(3) provides that a minor can revoke a will whether or not he is still privileged, but if he no longer has privileged status the revocation must be made formally.

3.2

Implied Revocation

The wording of s. 20 Wills Act 1837 is wide enough to cover the possibility of implied revocation. A will or codicil is impliedly revoked by a later will or codicil to the extent that the latter is inconsistent with the earlier will or codicil (Birks v. Birks (1865) Sw & Tr 23). For example, supposing a testator executes a will leaving his house to his son and the residue of his estate to his wife. He later executes another will by which he leaves his house to his daughter, and some shares to his son, but does not include any gift of residue. The gift of the house to the son will be impliedly revoked by the later will, but the residuary gift in the first will stands, as the later will is not inconsistent with it. It is a matter of construction of the will or codicil to decide whether and to what extent a later will impliedly

Revocation, Alteration, Republication, Revival 57

revokes an earlier will. According to the decision in Methuen v. Methuen (1816) Phil 416 extrinsic evidence is admissible for this purpose.

3.3

Revocation by Destruction

Under s. 20 Wills Act 1837 the whole or part of a will may be revoked 'by burning, tearing or otherwise destroying the same, by the testator, or by some person in his presence and by his direction with the intention of revoking the same'. Revocation by destruction involves two distinct elements • actual destruction, and • an intention to revoke. One without the other is insufficient - both must be present.

(a)

Actual destruction

The actual destruction must be by burning, tearing or 'otherwise destroying'. The eiusdem generis rule has been used to interpret the words 'otherwise destroying', to require that the acts of destruction are of the same kind as burning or tearing. Thus, in Cheese v. Lovejoy (1877) 2 PD 251 it was held that cancelling a will by striking out its clauses and the testator's signature with a pen, then writing on the back of the will 'All these are revoked' before throwing the will in a pile of waste paper in the corner of the room, did not amount to 'otherwise destroying' for the purpose of s. 20. Consequently, when the testator's housemaid retrieved the will and kept it in the kitchen drawer until the testator's death, the will was admissible to probate. Although the testator had intended to revoke the will, it had not also been destroyed. Cheese v. Lovejoy should be contrasted with Re Morton's Goods (1887) 12 PD 141 where a complete scratching out of the testator's signature was regarded as 'otherwise destroying' as a lateral cutting off of the signature. Similarly, in Re Adams (1990) 134 SJ 518 the parts of the will which had been scored through heavily with a ballpoint pen were held to have been actually destroyed. In Hobbs v. Knight (1836) 1 Curt 768, it was held that 'tearing' in s. 20 included cutting. If there is actual destruction of part of the will this may be sufficient to revoke the whole will. Whether this is the case depends on whether the part actually destroyed impinges on the whole will. For example, if the testator's signature is destroyed, this will revoke the whole will. In contrast, if the parts actually destroyed are less important, only those

58

The Law Relating to Wills

parts will be revoked. This was so in Re Everest [1975] Fam 44, where the testator had cut off the part of his will which contained the trusts of the residue. It was held that the parts cut off were revoked, but that the rest of the will remained valid. To establish actual destruction it is necessary to establish that the acts of destruction were completed by the testator. This emerged from the decision in Doe D. Perkes v. Perkes (1820) 3 B & AId 489 where a testator tore his will into four pieces in a rage with one of the beneficiaries named in the will. He then became calmer and he fitted the pieces together, saying 'it is a good job it is no worse'. The court held that there had been no actual destruction as, on the facts, the testator had not completed all that he had intended to do by way of destruction. It should be noted that for s. 20 to operate the acts of destruction must be by the testator or by some other person in the testator's presence and under his direction. Thus in Re Dadd's Goods (1857) Dea & Sw 290, a will was held not to have been actually destroyed where a testatrix who was on her death bed expressed the wish to revoke a codicil, and her executor and a neighbour went out of her presence into the kitchen and burnt the codicil. It seems that 'presence' for this purpose has a similar meaning to presence for the purpose of witnessing a will (see section 2.3). If the destruction is done by some other person, it must not only be done in the testator's presence but also under the testator's direction. In Gill v. Gill [1909] P 157 the testator's wife ripped up his will in a fit of temper but it was held not to have been destroyed as the destruction, although in his presence, was not under his direction. It appears, furthermore, that destruction without the direction of the testator cannot be ratified. In Mills v. Millward (1890) 15 PD 20, a testatrix showed her will to her sister-in-law shortly before she (the testatrix) died. The sister-in-law was so angry that neither she nor her husband benefited that she ripped up the will. She later apologised to the testatrix for this and urged her to make a new will. The testatrix refused to do this, and the court held that her refusal to make a new will did not amount to ratification of the destruction. The court went on to say that it was doubtful whether a testator can ratify a destruction of his will. As destruction by another person must be in the presence of the testator, there will be no revocation if the testator, for example, telephones or writes to his solicitor and asks the solicitor to destroy his will, and the solicitor then destroys it, but not in the client's presence. If the testator's solicitor has custody of the will one might think that it could be problematic to revoke the will effectively and quickly where the testator is, say, abroad. However, in Re Durance (1872) LR 2 P & D 406, it was held that a testator can in these sorts of circumstances execute a document revoking the will. On the facts of the case the testator wrote from Canada

Revocation, Alteration, Republication, Revival 59

to his brother who had custody of his will asking him to destroy the will, which the brother in fact did. As the letter was signed and witnessed by two witnesses it was held effectively to revoke the will. (b)

Intention to revoke

A testator must have the same capacity to revoke a will as is necessary to execute a valid will. This is illustrated by Re Aynsley (1973) 1 Ch. 172 where a testatrix who was old and confused, tore her will into 40 pieces. These pieces were in fact handed to Megarry J, the judge deciding the case. He apparently spent an hour putting them together, after which he decided that the testatrix lacked mental capacity to revoke and that the will was therefore still valid. In the case of revocation by destruction it must also be shown that the destruction was not accidental. For example, if a person's will is destroyed by a fire at their home, this will not revoke the will even though it has actually been destroyed. Similarly, where a testator is under some mistaken belief that, for example, the will is invalid, there is no intention to revoke. (c)

Presumption concerning revocation by destruction

A will is presumed to have been destroyed by the testator with the intention of revoking it where the will was last known to be in the testator's possession, and either: • the will cannot be found at the testator's death (Welch v. Phillips (1836) 1 Moo PCC 299); or • it is found torn or otherwise seriously mutilated (Lambell v. Lambell (1831) Hagg Ecc 568).

In either case the presumption can be rebutted by evidence to the contrary. The well-known case of Sugden v. Lord St Leonards (1876) 1 PD 154 CA is a case where the presumption of revocation of a will missing at the date of death was rebutted. Lord St Leonards had at one time been the Lord Chancellor. He was known for the fact that he went about the country with his will in a black box. As he was very worried about the prospect of a fraud being committed on his death, he made his daughter learn his will by heart, lest it should go missing at his death. The will was missing at his death but the daughter's oral evidence as to the terms of the will was admissible, and the evidence of the circumstances was sufficient to rebut the presumption that the will had been revoked.

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The Law Relating to Wills

It is important to note that before the presumption can be applied, the will must last be known to be in the possession of the testator. Many wills are left with the testator's solicitor for safe custody, and in these circumstances the presumption does not apply. If a will has been lost or accidentally destroyed, probate may be obtained of a copy or reconstruction of the will provided that a court order is first obtained. The procedure for obtaining such an order is set out in Rule 54 Non-Contentious Probate Rules 1987. The order can be made by a district judge or registrar, although he or she may require that the matter be referred to a judge in the Family division. The application must be supported by an affidavit to rebut the presumption that the will has been revoked. In the case of a reconstruction of the will, evidence on affidavit must also be provided as to the accuracy of the reconstruction. The district judge or registrar may require additional evidence and may direct that notice be given to persons who may be affected by the application.

3.4

The Doctrine of Conditional Revocation

It has been seen that whether revocation is express, implied or by destruction, it is necessary to establish that the testator had intention to revoke. Once an intention to revoke is established, it is necessary to decide whether the intention is absolute or conditional. This is a question of fact in the case of revocation by destruction, but a matter of construction in the case of either express or implied revocation. The doctrine of conditional revocation, is sometimes somewhat unhelpfully referred to as the doctrine of dependent relative revocation. If the intention to revoke is absolute, the revocation takes place immediately. If it is conditional, it does not take place until the condition is fulfilled. Revocation may, for example, be conditional on the execution of a valid new will or codicil, or on the revival of a former will that had been revoked, as in Re Bridgewater's Estate [1965] 1 All ER 717. An example of revocation being conditional on the execution of a new will is seen in Dixon v. Treasury Solicitor [1905] p. 42 CA. Here, a testator instructed his solicitor to draw up a new will for him. Before this had been done he cut off the signature from his old will, as he mistakenly believed that a new will could not be made until the old will was revoked. The action of cutting off the signature amounted to revocation by destruction. The testator then died before he was able to sign the new will. The court found that because of his mistaken belief, the revocation of the old will was conditional on the new will being effective.

Revocation, Alteration, Republication, Revival 61

A rather different type of circumstance where the court held that a revocation was conditional is illustrated by the facts of Re Carey [1977] LS Gaz R 189. Here a testator revoked his will by destruction because he thought that he no longer had any property which could pass by his will. He had forgotten that he might inherit some property from his sister's estate, which he in fact did. The court held that the revocation was conditional on the testator having nothing to leave. As he in fact had property to leave, the condition was not fulfilled and the will remained valid. It will be seen that the doctrine of conditional revocation has also been applied to alterations made to wills (see section 3.7). The decision in Re Southerden's Estate [1925] p. 177 deserves comment in view of the court's general reluctance to recognize a mistake by a testator as to legal effect of a will (see section 2.2). On the facts of the case a testator revoked his will by the destruction of it under the mistaken belief that under the rules of intestacy his widow would acquire the whole of his estate. It was held that the revocation of the will was conditional on the widow taking the whole estate on intestacy. As she was not entitled to the whole estate on the facts, the condition had not been fulfilled and the will remained valid.

3.5

Revocation by Marriage

As a general rule, the marriage of a testator will automatically revoke any will or codicil made prior to the marriage. This was the case under s. 18 of the Wills Act 1837 as originally enacted, but changes have been made to the precise operation of the provision by the Administration of Justice Act 1982, which affects all wills executed after 31 December 1982. The provisions of the substituted s. 18 are now described. It should be noted that for the purpose of s. 18 marriage includes a voidable, but not void marriage (Mette v Mette (1859) 1 Sw & Tr 416). Section 18 provides that the marriage of the testator will automatically revoke a will or codicil, subject to three exceptions.

(a)

Exception 1

Under s. 18(2), where a disposition is made in a will under a power of appointment, the disposition will take effect notwithstanding the testator's marriage, unless in default of appointment the property to be appointed passes to the testator's personal representatives. The broad effect of this is, if under the terms of the power of appointment there is a default clause which specifies that the property is to pass to the testator's next-of-kin (that is, spouse and issue) should the testator fail to appoint, then s. 18(2)

62

The Law Relating to Wills

does not operate and the exercise of the power would not be revoked by the testator's marriage. In contrast, if under a default clause in the power of appointment, anyone other than the testator's next-of-kin benefits, s. 18(2) takes effect.

(b)

Exception 2

The second exception is where it appears from the will at the time that it was made that the testator was expecting to marry a particular person and that they intended that the will should not be revoked by their marriage to that person (s. 18(3)). Extrinsic evidence is admissible to ascertain the intentions of the testator in this respect (s. 21 Administration of Justice Act 1982). Although it is unnecessary for the testator to be engaged to be married at the time they execute their will, they must contemplate marriage to a particular person and this must be apparent from the will itself. If the testator then marries someone other than the person named in the will, the marriage will revoke the will. In the case of a will executed prior to 1983, s. 177 of the Law of Property Act 1925 applied (irrespective of the date of the testator's death). This provided that 'a will expressed to be in contemplation of a marriage ... shall not be revoked by the solemnisation of the marriage contemplated'. The section was given a somewhat restrictive interpretation in Re Coleman [1976] Ch 1 which required that the will was expressed to be made in contemplation of marriage to the particular person, by for example, saying 'This will is made in contemplation of my marriage to Sebastian Witlock .... '. For wills executed after 1982, it is no longer necessary that the will is expressed to be made in contemplation of the marriage, provided that it appears from the will that this is the testator's intention. But it is still likely that marriage to a particular person will have to be shown to be intended. (c)

Exception 3

The third situation where marriage of the testator will not automatically revoke his will is where it appears from the will at the time that it was made that the testator was expecting to be married to a particular person and he intended that a particular disposition in the will should not be revoked by marriage to that person (s. 18(4)). If this is the case, all dispositions in the will take effect and are not revoked, unless the testator showed an intention that any particular provision should be revoked. The purpose of the section was to avoid the difficulties of Re Coleman. The will

Revocation, Alteration, Republication, Revival 63

in this case contained a clause by which the testator left specified parts of his estate 'unto my fiancee, Mrs Muriel Jeffrey'. Another clause left the residue to the testator's brother and sister. It was held on the basis of s. 177 Law of Property Act 1925, that the whole will had to be expressed to be in contemplation of marriage and as it was not, the whole will was revoked by the testator's marriage to Muriel Jeffrey. In the case of wills executed before 1983, this decision will still apply, but had the will in Re Coleman been executed after 1982, s. 18(4) would have saved the gift to Muriel Jeffrey, and the residuary gift to the brother and sister.

3.6

Revocation by Divorce

Up until 1983 if a testator's marriage was annulled or dissolved this in no way affected the validity of his will. It was up to the testator expressly to revoke the will if he no longer wished his former spouse to benefit. In the case of wills taking effect after 1982, section 18A(1) of the Wills Act 1837 as substituted by s. 18(2) Administration of Justice Act 1982 provided that on dissolution or annulment of the testator's marriage, a gift to a former spouse lapsed and an appointment of the former spouse as executor (and trustee), was omitted. Section 18A (3) provided that where a gift of a life interest is made to a spouse the interest of the person(s) entitled in remainder are accelerated, even if the interest of the persons entitled in remainder is expressed to be contingent on them surviving the spouse. The drafting of s. 18A caused some problems. In Re Cherrington [1984] I WLR 772 the testator's will appointed his wife as executrix and gave her all of his estate. There was a proviso to the effect that if she predeceased him, his sons and the family solicitor should be executors and the estate should be divided between his two sons. The testator divorced his spouse, and died shortly afterwards. The court held that 'for the purposes of simplicity, certainty, and to give effect to the testator's intentions', the term lapse in s.18A should be interpreted to mean that the wife had predeceased her husband, so that the gift over to the sons and the appointment of the sons and solicitor as executor, could take effect. However, in Re Sinclair [1985] I All ER 1066 the Court of Appeal overruled Re Cherrington. On the facts of Re Sinclair, a testator's will left the whole of his estate to his wife with a gift over to the Imperial Cancer Research Fund which was expressed to take effect 'if my said wife shall predecease me or fail to survive me for one month .. .'. A problem occurred because the testator divorced his spouse and then died not long after, and his former spouse survived him by more than one month. Under s. 18A the gift to the wife lapsed. The Court of Appeal held that the word

64

The Law Relating to Wills

'lapse' in s. 18A meant no more than fail. Consequently, as the divorced spouse was not deemed to have predeceased under the terms of the testator's will , the conditional gift to the Imperial Cancer Research Fund could not take effect. This decision is correct on a literal reading of s. 18A, but it clearly defeated the purpose of the testator. Another area of difficulty occurred in relation to class gifts where a former spouse was a member of the class and the property was left jointly. The 'lapse' provision of s. 18A would seem to result in a partial intestacy, whereas if a former spouse was treated as predeceasing, the former spouse's share would have passed to other members of the class by survivorship. The Law Reform (Succession) Act 1995, passed following the recommendations of the Law Commission (,Family Law: The Effect of Divorce on Wills' Law Com. no. 127 paras. 3.9-3.12), has now made two changes to the current provisions on revocation of wills and divorce. First, s. 3 of the Act amends s. 18A to provide that unless there is a contrary intention expressed in the will, property left by a testator to a former spouse will devolve as though the former spouse had died on the date of the divorce or annulment and any provision appointing a former spouse as executor or trustee will take effect as if the former spouse predeceased the testator. The first part of the clause will nullify the effects of the decision in Re Sinclair and render s. 18A(3) redundant. The second change is made by s. 4 of the Act which amends s. 6 of the Children Act 1989 to provide that on divorce or annulment of a marriage any appointment by the testator of their former spouse as guardian is revoked, unless the appointment expressly provides to the contrary. Section 4 would be relevant to a child of the testator who is not also the child of the former spouse, where the spouse does not have parental responsibility for the child. The Law Commission (para. 3.16) considered it doubtful that a testator would, in such a situation, wish the appointment of his or her former spouse as guardian to remain effective after divorce. Section 18A, as substituted by the Law Reform (Succession) Act 1995, applies subject to a contrary intention expressed in the will. Apart from clauses of the will involving the former spouse, a testator's will stands notwithstanding the divorce or decree of nullity. The section does not apply to the separated spouse, even if there is a decree of judicial separation. It should be noted that s. 18A(2) provides that the failure of a gift to a spouse on divorce or nullity is 'without prejudice to any right of the former spouse to apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975'. It will be seen in Chapter 14 that this Act allows a court to alter the terms of a will in order to make

Revocation, Alteration, Republication, Revival 65

reasonable financial provision for categories of dependant set out in the Act. These catagories include a former spouse.

3.7

Alterations of Wills and Codicils

Where the words of a will are obliterated or altered in some other way (for example, by crossing through words), or interlineations are made, the position is governed by s. 21 Wills Act 1837 and depends upon whether the alterations were made before the execution of the will or after. (See Figure 3.1.)

(a)

Alterations made before the execution of the will

An alteration made before the execution of the will is valid so long as it is final rather than deliberative. If it is in pencil it is presumed to be merely deliberative, and without evidence to the contrary it would not therefore be valid (Re Bellamy's Goods (1866) 14 WR 501). However, with regard to alterations made before the execution of the will there is a presumption that they have been made after execution unless the alteration is to fill in a blank space in the will (Cooper v. Bockett (1846) 4 Moo PCC 320). Either extrinsic evidence (for example, from a person drafting the will, or from a witness) or evidence from the will itself is admissible to rebut the presumption. Alterations made after execution of the will are invalid unless they have been executed (see below). In view of the presumption, it is advisable in practice to execute an alteration even if it has been made before the execution of the will. This will avoid the need for affidavit evidence (under Rule 16 Non-Contentious Probate Rules 1987), which is otherwise required to rebut the presumption that the alteration has been made after execution. Where the alteration is made to fill a blank space in the will, the presumption is that the alteration was made before execution of the will (Kelt v. Charmer (1856) 23 Beav 195). Where a codicil to a will is subsequently executed, even though a codicil has the effect of republishing the will (see section 3.8) this will not of itself validate an alteration by making it as though done before the execution of the will. An alteration will only be made valid by a codicil if the codicil refers in some way to the alteration. For example, in Re Heath's Goods [1892] p. 253, a testator made an unattested alteration giving a beneficiary a further legacy of £1000 over and above one of £10 000. A codicil to the will recited that the beneficiary in question was to receive a legacy of £11 000, and it was held that this republished the will in its altered form. Had the codicil made no reference to the additional legacy of £1000, the legacy would have been invalid as an unattested alteration.

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The Law Relating to Wills

NO Is there evidence to rebut the presumption that the blank space was filled before execution of the will?

NO

YES (invalid)

NO

Probate will be granted with the original wording. NO (The alteration is non-apparent.) Has there been an attempted substitution?

YES~

(invalid)

NO (invalid)

Figure 3.1

Validity of alterations

The 'forbidden methods' can be used to ascertain the original wording. If this can be ascertained, then probate will be granted with the original words. If the original words cannot be ascertained, probate is granted with a blank space.

Revocation, Alteration, Republication, Revival 67

(b)

Alterations made after the execution of the will

If the alterations are made after the execution of the will s, 21 provides that they are invalid unless they have been duly executed in accordance with the formalities required for the execution of a will (see section 2.3). The formalities are complied with if the testator and the witnesses place their initials in the margin next to the alteration or if the signature of the witnesses and the testator is put at the end of a memorandum which is contained in the will, and which refers to the alteration. The decision in Re Shearn's Goods (1880) 50 LlP 15 illustrates that the court may require strict observance of the formalities in order for the alteration to be valid. In that case a testatrix made an interlineation in her will after it had been executed. She then acknowledged the will as being her last will. The witnesses then initialled the interlineation, but the testatrix did not also initial it. The alteration was held to be invalid. Where an unattested alteration has been made after the execution of the will the precise effect depends on whether the original wording is apparent or not apparent. The original wording will be 'apparent' for this purpose if the original words can be deciphered by an expert by 'natural means'. This means that the original words can be ascertained from the face of the will without physically interfering with the will. For example, 'natural means' would include holding the paper on which the will is written up to the light, or reading the words with the aid of a magnifying glass. In Re Horsford's Goods (1874) LR 3 P & D 221 the original words were pasted over with a strip of paper and it was not possible to see through the strip. In these circumstances the original words were held not to be apparent. Similarly, in Re Itter [1950] p. 130 strips had again been pasted over the original words, but it was possible to ascertain the original words by taking an infra-red photograph of the will. Nevertheless, the original words were still held not to be apparent. Although the will had not been physically interfered with, the words were not apparent from the face of the will but only from the photograph. It is unclear from the decision whether the position would have been different if an examination of the will itself with an infra-red light had revealed the original wording. Where an unattested alteration has been made and the words are 'apparent', the will is admitted to probate with the original wording, ignoring the alteration. For example, supposing after a testator's death a clause in his will is found as follows: 2500 £+;ee&to Thomas Welch

68

The Law Relating to Wills

The alteration is presumed to have been made after execution. As it is unattested, in the absence of evidence to rebut the presumption, it will be invalid. The alteration is apparent, as the original words can be seen on the face of the will, and probate will be granted with a legacy of £1000 for Thomas Welch. Where an unattested alteration has been made and the original words are 'not apparent' the general rule is that probate of the will is granted with a blank space (Re Hamer's Estate (1943) 113 UP 31). For example, if a will is found after a testator's death as follows: 2000 £.-to James Welch The alteration is presumed, in the absence of evidence to the contrary, to have been made after execution. As the alteration has not been attested, it is invalid. The original words are 'not apparent', as they cannot be ascertained from the face of the will without physically interfering with the will. Probate is granted with a blank space and James Welch gets nothing. So the general rule is that probate is granted with a blank space in the case of an unattested alteration made after execution of the will where the original wording is 'not apparent'. But there are two exceptions to this. Where one of the exceptions applies, the court does not regard itself as bound by s. 21 and the 'forbidden methods' can be used to ascertain the original wording, which is then admissible to probate. The 'forbidden methods' may involve physical interference with the will, use of infra-red photographs, or extrinsic evidence of the original wording from a draft or reconstruction or from someone such as a witness. Exception 1 This is where there was no intention on the part of the testator to revoke the words of the will in question. For example, in Townley v. Watson (1844) 3 Curt 761 words were obliterated when ink was spilt over them. The same would apply if words were obliterated by mistake. Exception 2 The other situation where the so-called 'forbidden methods' can be used to ascertain the original words in the case of a 'non apparent' alteration, is where the doctrine of conditional revocation applies. This occurs where the intention was that the original wording should only be revoked if the substituted wording is admissible to probate. The doctrine was applied in Re Itter where strips had been pasted over the original words. The court decided that the revocation of the original words was conditional on the pasted strips being valid. As the substituted wording

Revocation, Alteration, Republication, Revival 69 had been included after execution and not attested, it was invalid. So the 'forbidden methods', in this case an infra red photograph of the will, could be used to ascertain the original words with which probate could be granted. The doctrine of conditional revocation will normally apply where there is an attempted substitution as opposed to simply an obliteration. To compare two examples. Supposing a will reads as follows: 600 Clause 4 "shares in Scottish Power to William Welch

Clause 5 _

shares in Scottish Power to Christopher Welch

In both cases the original wording was in fact 900 shares in Scottish Power to each of the named beneficiaries and the alterations were made after execution of the will. In each case the alteration is 'non apparent' and invalid as not attested. However, in the case of William's gift there has been an attempted substitution and thus the doctrine of conditional revocation can be applied to find that the obliteration of the original words was conditional on the substituted words being admissible to probate. As they are not, the 'forbidden methods' can be used to discover the original figure of 900 which is admissible to probate. As regards Christopher's gift, the doctrine cannot be applied, as there has been no attempted substitution. Probate will, therefore, be granted with a blank space and Christopher will get nothing.

3.8 (a)

Revival and Republication of Wills Revival

A testator may revive a will or codicil or any part thereof which has been revoked, provided that it has not been destroyed. Section 22 Wills Act 1837 provides that a will or codicil which has been revoked in whole or in part may only be revived by either: • its re-execution with proper formalities, or • a duly executed codicil in each case showing an intention to revive the revoked document. In Marsh v. Marsh (1860) 1 Sw & Tr 528, it was held that attaching a codicil to a revoked will with tape was insufficient in itself to show an

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intention to revive the will. Similarly, in Re Steele's Goods (1868) LR 1 P & D 575, it was said that a mere reference to a revoked will was not sufficient to show an intention to revive the will. What was needed was an express confirmation of the original will or some other express statement to make this intention clear. As s. 22 provides that there are only two methods of revival, a will which has been revoked by the execution of a later will cannot be revived by the revocation of the later will (Re Hodgkinson's Goods [1893] p. 339). The effects of revival of a will are largely the same as those of republication, which are considered below. (b)

Republication

Republication of a will or codicil is the process of confirming a will or codicil. The term 'republication' is an anachronism, as wills are no longer required to be published. Republication must be by the same method set out by the Wills Act 1837 for revival (s. 22) - namely by re-execution of the will or by execution of a codicil, in either case showing an intention to revive. However, the evidence of intention to republish need not be as strong as the evidence presented to show an intention to revive. Mere reference to the will or codicil to be republished is generally sufficient. For example, if a will is republished by a codicil, words such as: 'This is a codicil to my will ... .' or ' ... in all other respects I confirm my will', are sufficient to show an intention to republish the will. It should also be noted that, whereas part of a document can be revived, the whole of a will or codicil must be republished. (c)

The effects of revival and republication

In the case of both revival and republication the effect is to make the will or codicil speak from the date on which it was revived or republished. Section 34 Wills Act 1837 provides that 'every will re-executed or republished or revived by any codicil shall for the purposes of this Act be deemed to have been made at the same time at which the same shall be reexecuted, republished or revived'. The other effects of revival and republication result from this fact. As a revived or republished will or codicil speaks from the date of the revival or republication, references to persons in the will or codicil are to persons at the date of revival or republication. Thus in Re Hardyman [1925] Ch 287, a legacy was made to 'my cousin, his children and his wife'. Later the testatrix made a codicil to the will at a time when she knew that her cousin's wife had died. The cousin subsequently married, and it was held that his second wife could benefit. There is, however, a statutory exception to this principle. Section 15 Family Law Reform Act 1969

Revocation, Alteration, Republication, Revival 71

provides that there is a presumption in the case of wills made on or after 1 January 1970, that references to children and other relatives include illegitimate children and persons related through them. Under s. 15(8), in the case of a will made before 1 January 1970 but republished on or after that date, the presumption does not apply. The fact that the revived or republished will or codicil speaks from the date of revival or republication also, as a general rule, affects references to property. Thus in Re Reeves [1928] Ch 351 a testator's will referred to 'my present lease'. Between the original date of execution and the date of republication of the will, the testator acquired a new lease. It was held that the beneficiary was entitled to the unexpired term of the new lease. Possibly, where the doctrine of ademption applies to a specific gift (see section 4.2), republication will not be sufficient to save the gift from ademption. Republication or revival of a will may affect the operation of s. 15 Wills Act 1837 (see section 2.3). • It will be remembered that where a beneficiary or the spouse of a

beneficiary under a will witnesses the will, the beneficiary is deprived of their benefit. If, however, the will is later republished, or revoked and revived, and other persons act as witnesses, the gift will be saved. • Revival or republication may ensure that a document which was not validly incorporated by reference (see section 2.4) - because, for example, it was not in existence at the date of the will- is now effectively incorporated, being in existence at the date of revival or republication. • Revival or republication could result in an unattested alteration made after the execution of the original will being valid. However, as unattested alterations are presumed to have been made after execution, unless they fill a blank space (see section 3.7), evidence would have to be produced to establish that the alterations were made before the date of revival or republication.

Summary 1 A will or part of it may be revoked voluntarily either expressly or impliedly, or by destruction. In each case the testator must have mental capacity and intention to revoke. A will may be revoked involuntarily by the marriage of the testator, or as regards gifts to a spouse or the appointment of a spouse as executor, by divorce. 2 Express revocation is not confined to an express revocation clause in a later will or codicil. It must, however, be made in writing (unless the testator is privileged), and executed in compliance with the formalities for the creation of a will. In the case of express revocation, there is a very strong presumption that the testator had intention to revoke, but

72

3 4

5

6

7 8

9

The Law Relating to Wills this can be rebutted by establishing that the testator did not know and approve the revocation clause. A will is impliedly revoked by a later will or codicil to the extent that it is inconsistent with the earlier will or codicil. Revocation by destruction involves two distinct elements: actual destruction and intention to destroy. One without the other is not sufficient. Actual destruction involves burning, tearing or otherwise destroying by the testator or by someone else, both in the testator's presence and under their direction. A will is presumed to have been destroyed by the testator with the intention of revoking it if it was last known to be in the testator's possession and it either cannot be found at the testator's death or it is found seriously mutilated. A revocation, whether express, implied or by destruction, may be conditional rather than absolute. Where revocation is conditional it does not take place until the condition(s) is fulfilled. Revocation is quite commonly found to be conditional on the execution of a new will which is valid. The marriage of a testator automatically revokes their entire will. There are three exceptions to this, the most important of which is where it appears that at the time the will was made the testator was expecting to marry a particular person and he or she expressly stated that the will should be revoked by their marriage to such person. Divorce automatically revokes gifts by will to spouses and the appointment of a spouse as executor. The Law Reform (Succession) Act 1995 has now made the operation of these provisions more satisfactory. Where an alteration to a will or codicil is made before the execution of the will or codicil, it is valid. However, alterations are presumed to have been made after execution unless they fill in a blank space. To avoid the need for affidavit evidence on death it is advisable to execute an alteration even though it has been made before execution. An alteration is executed by the testator and witnesses putting their initials in the margin next to the alteration or by putting their signatures next to a memorandum contained in the will which refers to the alteration. Where an alteration has been made after execution, it is invalid unless it has been duly executed. If the alteration has not been executed but it is 'apparent', probate will be granted with the original words. If, however, the original wording is 'non apparent', probate will be granted with a blank space - unless the doctrine of conditional revocation can be applied, when the 'forbidden methods' can be used to ascertain the original words which are then admissible to probate. A testator may revive a will or codicil or any part thereof which has been revoked, provided that it has not been destroyed. Revival is by reexecution with proper formalities or the execution of a codicil showing intention to revive. Republication is simply the process of confirming an unrevoked will or codicil. It should be done by the same methods set out for revival. The main effect of both revival and republication is to make the will 'speak from' the date of revival or republication rather than from the date when the will or codicil was originally executed.

Revocation, Alteration, Republication, Revival 73

Exercises 1 Eileen made her first will in 1984. In 1992 she made a new will. Both wills contained a clause which read 'I revoke all former wills and testamentary dispositions'. Each appointed Paddy as executor and the wills were deposited with him for safe keeping. In March 1994, Eileen, who was at the time staying with her sister in Ireland, wrote to Paddy asking him to destroy the 1992 will but to be sure to retain the 1984 will. By mistake Paddy burnt both wills. Eileen died on her way back from Ireland. Advise Paddy whether either or both wills can be admitted to probate. 2 William made the following alterations to the typescript of his will: (a) Before the will was executed he altered a legacy of £500 to Tracy by crossing through the figure of £500 and replacing it with £1000; and (b) After the execution of the will he altered a legacy of £200 to Ursula by obliterating the £200 and replacing it with £400. This was then initialled by the testator. (c) After the execution of the will he altered a legacy of £500 to Victoria by obliterating the final nought in £500. He did not initial this. (d) After the execution of the will he altered a gift of 'all my shares in ICI' to Wilma, by crossing through the initials ICI and replacing them with BT. Advise as to the effect of these alterations. 3 What changes have been made to the operation of the rules concerning revocation and divorce? 4 In 1990, at a time when he was engaged to Isobel, Trevor executed a will which left 'all my freehold dwelling houses to dearest Isobel who is shortly to become my wife but if Isobel should predecease me then the dwelling houses are to be given to the British Heart Foundation'. The residue of Trevor's estate was to be given to Trevor's children by an earlier marriage. Trevor married Isobel in 1993, but divorced her in 1995, and died shortly afterwards. 5

Advise Isobel as to her position regarding Trevor's dwelling houses. In 1985, Arthur Smith made a will by which he left 'all my shares to my friend Alex', but he did not dispose of the remainder of his assets. In 1990, he executed a further will which did not contain an express revocation clause, by which he left his shares in Rodway Motors pic to 'the present Mayor of Shoreham', and the residue of his estate to his wife. In 1992 Arthur Smith expressly revoked the 1990 will by an instrument which was signed by him and attested by two witnesses, but later the same year he executed a codicil in which he left his house to his daughter Sarah and included the words 'in all other respects I confirm my will made in 1990'. Who is entitled to Arthur's Smith's estate?

74 6

The Law Relating to Wills Halid executed a will in 1994 by which he left all his estate to his wife. During an argument with his brother in 1995 while decorating, he painted over the whole will with red gloss paint. None of the words are now visible. Halid and his brother were reconciled to each other the following morning, but neither of them discussed the will ever again. After the argument Halid's sister put the will in her bedroom cupboard, where it remained until the date of Halid's death last week. Advise as to the validity of the will.

4

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Gifts by Will and Their Failure

Chapter 2 considered the creation of a valid will and Chapter 3 considered how wills can be revoked. This chapter considers the validity and effect of the individual gifts made in a will. The chapter looks at the different types of gift that can be made by will, and explains the various reasons why gifts by will may either be invalid or unable to take effect.

4.1

Types of Gifts

A gift by will may be of realty or personalty. In the past a gift of realty was always termed a 'devise', whereas a gift of personalty was referred to as a legacy, and in drafting, the term 'I bequeath .. .' was used. Today the term 'legacy' is often used more generally to refer to any type of property gifted by will, and in drafting it is common to simply write 'I give .. .'. It is necessary to distinguish between different types of gift because of the operation of the doctrine of ademption (see section 4.2) and the doctrine of abatement (see section 10.4) as well as for various matters in connection with the administration of an estate. There are four types of gifts: • • • • •

specific general demonstrative pecuniary residuary.

These are now distinguished from one another.

(a)

Specific gifts

A specific gift is a gift of property forming part of the testator's estate which is distinguished in the will from other property of the same kind. In Bothamley v. Sherson (1875) LR 20 Eq, a specific gift was described as being 'a severed or distinguished part' of the estate. An example would be a gift of 'my Victorian four-poster bed'. In Re Rose [1949] Ch 499 it was

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said that the court leans against specific legacies and is inclined if it can, to construe a legacy as general. This is because specific gifts are prone to fail for ademption (see section 4.2).

(b)

General gifts

A general gift is a gift of property which is not in any way distinguished from property of the same kind. It could be a gift of all the testator's property or all the testator's property of a particular type (for example, 'all my realty'). As a general gift is one which is to be provided out of the testator's estate, it does not matter that property of that description does not form part of a testator's estate at their death. As Jessel MR explained in Bothamley v. Sherson, if property of that description does not form part of the estate the executors must 'raise the money or acquire the property'. General gifts tend to be pecuniary legacies (see below), but they need not be. For example, a gift of '4000 shares in British Telecom' is a general legacy unless there is something in the will to indicate that the testator intended to refer to shares which actually belonged to the testator. The fact that the testator owns exactly that quantity of shares in the named company will not of itself be sufficient to establish that the testator was referring to those shares. In Re Willocks [1921] 2 Ch 327, a testatrix left £948 3s lId of Queensland 3.5% Inscribed Stock to a certain beneficiary. The testatrix held exactly that sum at the date of the will, but this was not enough evidence to satisfy the court (which leans against the finding of a specific gift), that a specific gift was intended. (c)

Demonstrative gifts

A demonstrative gift is a gift which by its very nature is a general gift, but which is expressed to be payable out of a particular fund or property. For example 'I give £2000 out of my Royal Bank of Scotland deposit account no. 123654' would be a demonstrative gift, as would 'I give 200 of my shares in ICI'. As a demonstrative gift is general by nature, rather than specific, the gift will not fail for ademption (see section 4.2) even if the particular fund or property does not form part of the testator's estate at the date of their death. The money will need to be raised by the executors or the property acquired. However, if the gift is directed to be satisfied only out of a particular fund, it will not be a demonstrative gift at all, but rather a specific gift. This is because an essential characteristic of a demonstrative gift is that it operates as a general gift in so far as it cannot be satisfied out of the specified fund or property.

Gifts by Will and Their Failure

(d)

77

Pecuniary legacies

A gift of money, whether specific, general or demonstrative, is known as a pecuniary legacy. Usually a pecuniary legacy is a general gift, but it could be specific, if (for example, a testator made a gift of 'all the cash in my safe in my study at the date of my death ... '; or demonstrative, as where money is instructed to be paid out of a particular fund. It should be noted that the term 'pecuniary legacy' has a special meaning for the purposes of the Administration of Estates Act 1925. It is widely defined by s. 55(1) (ix) to include: an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest or payment must be made to take effect. This definition is relevant where the statutory order for the payment of debts is to be applied to an estate (see section lOA). (e)

Residuary gifts

A residuary gift is a gift of a testator's residuary estate. The residuary estate is all that is left in the testator's estate after all valid specific gifts have been paid. The residuary gift is usually made subject to the payment of pecuniary legacies, inheritance tax, all debts and other liabilities of the deceased and payment of the funeral and administration expenses. For example, if T's gross estate is valued at £200 000, and he makes a gift of a house (valued at £80 000) to X, a pecuniary legacy of £50 000 to Y and then names Z as the residuary beneficiary, the testator's residuary estate is £120 000 (£200 000 less the value of the house). The value of the pecuniary legacy is not taken into account in valuing the residuary estate, as it is not a specific gift. If the residuary estate is to bear the burden of all T's debts and so on and these amount to £20 000, the value of the residuary gift to Z will be £50000 - £120000 minus the debts (£20000) and the legacy (£50000).

4.2

Doctrine of Ademption

Where a specific gift is made, the gift will fail for ademption if the subject matter of the gift does not form part of the testator's estate at the date of

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his death. Ademption is likely to occur because the property has been sold, given away or destroyed during the tester's lifetime. For example, if a testator makes a gift of 'my Steinway piano currently placed in the lounge', but he sells it after the date of the execution of the will, and acquires another Steinway piano, the gift will fail for ademption. So, too, if a testatrix leaves 'my red Toyota Celica registration number B666 SIN' and then dies in an accident in the car, which as a result is a write off, the gift will adeem. This is so even if a claim can be made on the insurance for the value of the car. Where it is unclear which happens first, the death of the testator or the destruction of the property, the property is deemed to have perished before the testator so that the gift is adeemed (Durrant v. Friend (1852) 5 De G & Sm 343). For example, a testator dies in a fire at his home, and his cocktail cabinet, the subject matter of a specific gift, is destroyed with him. If it is not clear whether the testator died before the cocktail cabinet was destroyed, the cocktail cabinet is presumed to have perished first and the gift adeems. Sometimes, where property has changed in nature it is difficult to decide whether ademption has occurred. In Re Slater [1907] 1 Ch 665 CA, Cozens-Hardy MR said that ademption would not occur if the asset in question had changed in name or form only, but remained substantially the same thing. Change in the nature of the asset has been a particular problem in relation to company shares. If, for instance, the company in which the testator held shares has been taken over since the execution of the will, it must be decided whether there has been a change in form or a change in substance. In the case of a change in substance, ademption will occur. In Re Slater itself, the testator had made a gift of his interest in the Lambeth Waterworks Company. The company was, by statute, acquired by the Metropolitan Water Board. Under the provisions of the statute the testator elected to receive compensation in the form of stock. There was held to be a change in substance and the gift failed for ademption. This was based on the finding that the Lambeth Waterworks Company had been totally annihilated by the effects of the statute. Re Slater should be contrasted with Re Leeming [1912] 1 Ch 828, where at the time of execution of the will the testator had ten £4 shares which were later changed into twenty £5 preference shares and twenty £5 ordinary shares. This was held to be a change in form only and the gift did not adeem. A specific legacy will not fail for ademption where s. 24 Wills Act 1837 applies. Section 24 says that, as regards property, a will speaks from the date of the testator's death unless there is a contrary intention. In many cases s. 24 does not apply because the word 'my', coupled with a particular

Gifts by Will and Their Failure 79

description of the item, will amount to a contrary intention to the will referring to property at the testator's death (for further details, see section 5.3). For example, a gift of 'my valuable oak chest by my front door' would be taken to speak from the date of the will and as such would be a contrary intention to s. 24. If the testator had sold or given away the oak chest, even if it were replaced by another, the gift would fail for ademption. In contrast, s. 24 would apply if the gift was drafted to read 'any chest I may have at date of my death'. In this case the gift would not adeem. Where, as in the example above, the geographical location of the gifted item is included in its description, it is necessary to decide whether the reference to the position of the asset is merely to assist in the identification of the item, or whether the positioning of the asset is essential to the gift (see Land v. Devaynes (1793) 4 Bro CC 537). In most cases it will be regarded as simply helpful to the identification of the asset. A contract to sell the subject matter of a specific gift will cause a gift to fail for ademption even though the contract is not completed until after the testator's death. According to Re Calow [1928] Ch 710, however, this will not be the case where the testator has made a contract to sell the subject matter of the gift before the will was executed. In this case the beneficiary will be entitled to the proceeds of sale. Moreover, under the rule in Lawes v. Bennett (1785) 1 Cox 167, where a testator during his lifetime grants to a third party an option to purchase property which is the subject matter of a specific gift, the gift will adeem whether or not the option is exercised. But if the option was granted to the third party before the will was executed, the gift will not adeem and the beneficiary will be entitled to the proceeds of the sale if the option is exercised (Drant v. Vause (1842) 1 Y & CC 580). Although the authorities are not entirely clear on the point, it seems that a gift will fail for ademption if between the execution of the will and the date of its republication the testator acquires another asset of the same description (see Cowper v. Mantell (No.1) (1856) 22 Beav 223). This is not entirely logical, as it will be remembered that republication makes a will speak from the date of republication rather than at the date of the will. Finally, it should be noted that it is always possible for the testator to express a contrary intention to the operation of the doctrine of ademption. For example, a will may be drafted to read 'I give my Steinway piano or any other piano which I may acquire'. Or, in the case of gifts of shares, 'if any shares referred to in the gifts made above, are as a result of a takeover, amalgamation or reconstruction represented by a different holding'. Both of these forms of words would be a contrary intention to the operation of the doctrine of ademption.

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4.3 (a)

The Law Relating to Wills

Doctrine of Lapse General rules

As a general rule, if a beneficiary under a will predeceases the testator their gift will lapse. If the gift is not a residuary gift, the property will fall into residue. If the gift is a residuary gift, the property will pass according to the rules of intestacy unless there is a substitutional gift of the residue. A gift will not lapse if it can be shown that the beneficiary survived the testator for even a very short period. Where the circumstances of death ·make it uncertain whether the beneficiary survived the testator, the beneficiary may be deemed to have either survived or predeceased the testator under the doctrine of commorientes. This doctrine is explained in section 4.4. It is important to understand that the doctrine of lapse cannot be excluded simply by saying that a gift is not made subject to it. But according to Re Ladd [1932] 2 Ch 219 it is possible to make an express gift to the estate of a deceased beneficiary. If a gift is made to beneficiaries as joint tenants, the gift will not lapse unless all the joint tenants predecease the testator, as the surviving joint tenant(s) take(s) the share of a deceased joint tenant by survivorship (Morley v. Bird (1798) 3 Yes 629). So, for example, if Ann left her residuary estate to 'Benedict and Catherine jointly', as there are no words of severance, Benedict and Catherine would be joint tenants. If Benedict predeceases Ann, Catherine will take the whole of the residuary estate by survivorship. In contrast, if a gift is made to beneficiaries as tenants in common, the share of a beneficiary who predeceases will lapse (Page v. Page (1728) 2 P Wms 489). This is because tenants in common have a distinct share in the property and the rule of survivorship does not apply. For a tenancy in common there must be 'words of severance'. These are words which indicate each beneficiary is to have a distinct share, such as 'equally', 'in equal shares', 'to be divided between', 'to be shared amongst'. Thus, for example, if David leaves his residuary estate to 'Edna and Francis in equal shares', and Edna predeceases David, Edna's share will lapse and Francis will take his half only of the residuary estate. Where a class gift is made, the gift will not lapse unless all the members of the class predecease the testator (see further section 5.5). A class gift is one where the beneficiaries fit a certain description, and the amount that each beneficiary receives depends upon the number of people in the class. For example, if Gary leaves his residuary estate to 'the children of my sister Harriet', the gift will not lapse unless all the children of Harriet predecease Gary. This is because any children of Harriet who do not

Gifts by Will and Their Failure

81

survive Gary will, in any case, be excluded from the class under the class closing rules explained in section 5.5.

(b) Exceptions There are a number of exceptions to the doctrine of lapse, the most important of which is s. 33 Wills Act 1837, as substituted by s. 19 of the Administration of Justice Act 1982. This section, which applies to all deaths after 31 December 1982, may save gifts to the testator's children or remoter issue from lapse, if the children or remoter issue predecease the testator. It may also alter the effect of a class gift to children or remoter Issue. Section 33 (as substituted) operates unless there is a contrary intention in the will, and provides that where: (i)

a will contains a gift to a child or remoter descendant of the testator; and (ii) the intended beneficiary dies before the testator, leaving issue; and (iii) issue of the intended beneficiary are living at the testator's death, the gift shall take effect as a gift to the issue living or en ventre sa mere at the testator's death. The substituted section 33 (3) goes on to provide that such issue take according to their stock, in equal shares if more than one, any gift or share which their parent would have taken. For an example of the operation of the provision, see Figure 4.1. Certain points need to be remembered about the substituted s.33. • The section only applies to gifts to children or remoter issue of the testator. Thus, for example the section would not apply to a gift to the

By his will Harry leaves £10000 to each of his son lan, and daughter Juliet. Ian predeceases his father, leaving Kate and Larry who are living at Harry's death. Juliet is also living at Harry's death. The legacies will be distributed as follows:

Harry I

I

I

Kate £5000

Figure 4.1

I

I

Juliet £10000

Ian (d.) I

Larry £5000

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The Law Relating to Wills

testator's nephews or nieces, or to a gift to the children of another person. However, for the purpose of the section, children includes illegitimate children or issue (s. 33(4)(a)). • In order for the section to operate it is not only necessary that the beneficiary who dies before the testator leaves issue, but also that the issue are still living at the death of the testator (see Figure 4.2). • A third important point not to be overlooked, is that s.33(3) provides that no issue shall take whose parent is living at the testator's death and is so capable of taking. This is illustrated by Figure 4.3. • A common error in understanding the operation of s. 33 as substituted, is to imagine that the section provides that the issue of the intended beneficiary take contingent on attaining 18 years, in a similar way to which issue are entitled under the rules of intestacy (see section 6.4). This is not the case - the issue take absolutely. By her will Mavis left £20000 to each of her sons, Tom, Dick and Harry. Both Tom and Dick predeceased Mavis. Tom died leaving one child who died two weeks after him. Dick had two children, Milly and Molly, of whom Milly also predeceased Mavis. The legacies will be distributed as follows: Mavis

I

Dick (d.)

Tom (d.)

I

child (d.) lapse operates

Milly (d.)

I

Harry £20000

Molly £20000

Figure 4.2 Ann leaves £1 0000 in her will to her daughter Betty, who predeceases her. Betty has two sons, Christopher and David, of whom Christopher also predeceases Ann. Christopher has a daughter Esther. David left two sons, Frederick and George, who are both alive at the time of Ann's death. The legacy will be distributed as follows: Ann Betty (d.)

I

Christopher £5000

I

Esther

Figure 4.3

I

I

David (d.)

I Frederick £2500

George £2500

Gifts by Will and Their Failure

83

• It should be noted that it is possible for there to be expressed in the will a contrary intention to the operation of s. 33. This is illustrated by Re Meredith [1924] 2 Ch 552, where a testator executed a will containing a

gift to a son who subsequently died. Thinking that the son's death caused his gift to lapse, the testator executed a codicil, reciting that the gift to the son in the will had lapsed, and making a gift to each of the son's children. It was held that taking the will and codicil together, this amounted to a contrary intention to the operation of s. 33 expressed in the will, and it was irrelevant that the testator was unaware of the existence of s. 33.

The substituted s. 33 applies equally to class gifts to children, and may alter the effect of the class closing rules (which will be explained in section 5.5). Section 33(2) provides that, unless there is a contrary intention, where: (i)

a will contains a gift to a class of persons consisting of children or remoter descendants of the testator; and (ii) a member of the class dies before the testator leaving issue; and (iii) issue of that member are living at the death of the testator, the gift takes effect as if the class includes the issue of the deceased member who are living at the date of the testator's death. The issue then take the share that their parent would have taken, if more than one in equal shares. Figure 4.4 illustrates the operation of s. 33(2). The operation of s. 33 is unclear where contingent gifts are made to children or remoter issue. Supposing a testator made a gift to their child,

By her will, Tessa leaves £15000 'to be shared amongst my children'. Tessa has three children, Sam, Toby, and Ursula, of whom Ursula predeceases her. Ursula died leaving two children, Victoria and William, who are both living at the date of Tessa's death. Sam also has two children, Xavier and Zoe. The legacy will be distributed as follows: Tessa

I

Sam £5000

Toby £5000

I

Xavier

Figure 4.4

Zoe

Ursula (d.)

I Victoria £2500

William £2500

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The Law Relating to Wills

subject to the child attaining the age of 25 years. The child dies before attaining 25 years, but leaving issue who are living at the date of the testator's death. It is unclear from the wording of the substituted s. 33 whether: • the issue of the deceased child can take if their parent failed to satisfy the contingency before they died; and, if they can take, • whether the issue of the deceased child will have to satisfy the contingency. A further exception to the doctrine of lapse, in addition to the substituted s. 33, is gifts made in the discharge of a moral obligation. The precise extent of this exception is unclear, but in Stevens v. King [1904] 2 Ch 30 it was explained that the doctrine of lapse does not apply to a gift made to discharge a moral obligation, as the court will imply that the gift is intended by the testator to pass into the estate of a beneficiary to whom the testator owes a moral obligation. Possibly, the exception only extends to debts owed by the testator to a beneficiary.

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