INSTITUTE OF LEGAL EXECUTIVES PROBATE & SUCCESSION EXAMINER S REPORT AUTUMN 2007

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1 Subject 35 INSTITUTE OF LEGAL EXECUTIVES PROBATE & SUCCESSION EXAMINER S REPORT AUTUMN 2007 Introduction The primary aim of this report is to help candidates who are to sit an ILEX Probate and Succession examination in the future. It is therefore intended to be a useful document that does the following: comments on overall performance by candidates in the Autumn 2007 Probate and Succession examination; advises on how performance might be improved; indicates what should be contained in successful answers to the questions in the examination paper; provides detailed comment on performance in individual questions. Comment on Overall Performance This is a Level 6 paper and was, consequently, appropriately demanding. Successful candidates are therefore to be congratulated on passing their Higher Level Professional Diploma in Probate and Succession. The performance of candidates taking this examination was comparable to Autumn The most common weaknesses were: 1. Poor legal problem solving skills; 2. Lack of adequate skills for tackling essay questions; 3. Poor structure and inadequate understanding of how to use the law to answer questions; 4. Lack of knowledge of the law of Probate and Succession. Poor Legal Problem Solving Skills Common weaknesses included: failure to identify the key issues raised by the problem questions; failure to identify the particular principles of law relevant to the problem; failure to state the law accurately and cite cases appropriately; failure to apply the law to the facts of problem questions in an appropriate manner or (in the case of a number of candidates) to apply it to the facts at all. Lack Of Adequate Skills For Tackling Essay Questions Many candidates fail to appreciate that it is just as important when tackling essay questions, as it is with problem questions, to target the answer to the actual issues raised by the question. There was a common tendency to write a narrative on the whole law relating to a topic, instead of selecting relevant points and using those to address the actual question set. Answers often lacked sufficient depth and detail appropriate to an examination at this level, with some candidates producing very short answers. Page 1 of 13

2 Poor structure and inadequate understanding of how to use the law to answer questions This was a particular issue with answers to problem questions. Some candidates started their answers with several pages of law, set out in the abstract with no reference to the facts of the problem and often no attempt to pick out the principles that were actually relevant. This was followed by a cursory discussion of the facts of the problem, often making only scant reference back to the previous explanation of the law. Some answers followed their explanation of the law with a mere recital of the facts and then gave a brief conclusion, without demonstrating how it was reached. A proper conclusion can only be arrived at after a careful application of relevant principles of law to the facts of the problem. Some answers failed to reach any conclusion or give the advice asked for. A number of candidates appeared to think that it was possible to answer a question by merely setting out the provisions contained in a relevant statute, order or rule. For example, some candidates, in answering question 8, did little or nothing more than writing out the provisions of Inheritance (Provision for Family and Dependants) Act 1975, without relating them to the question asked. See further comments under questions 1, 3, 5, 6 and 8. A number of candidates also failed to use case law appropriately. What is required is a statement of the relevant principle from a case, not a recitation of the facts. Candidates will not gain credit for merely reciting the facts of a case, although a brief comparison with the facts in a problem question may sometimes be useful when applying the law; similarly, in essay questions, a candidate may legitimately use the facts of a case to illustrate a particular point that is being made. Lack Of Knowledge of The Law of Probate and Succession An inadequate knowledge of basic principles and/or case law was shown by a number of candidates, meaning that they were unable to reach the standard required to pass the examination. A few candidates failed to mention any case law in their answers. A number of candidates appeared not to have revised sufficient topics to enable them to answer four questions fully. Some tackled only part of a question, meaning that they automatically forfeited a proportion of the marks available. General Advice to Candidates Candidates are strongly advised to develop the skills of analysis required for the practical solution of problems. They should develop the skills of diagnosis of legal problems. They should learn the skill of stating the rules of law succinctly. (That is quite different from simply repeating the facts of decided cases.) They should learn how to apply the law to the facts of a problem in order to arrive at a reasoned answer. The best way to develop these skills is to practise using the law in addressing problem questions. When doing so candidates are advised to use problem questions from ILEX past papers in this subject. With regard to essay questions, candidates are strongly advised to analyse the law and to be critical. They should pay particular attention to the wording of the Page 2 of 13

3 question and discuss the relevant law, connecting their arguments to the actual issues raised by the question. Candidates should do these things as part of their initial study of the subject and as part of the examination preparation process. A planned and rigorous revision process is strongly recommended. Candidates should use past papers and examiner s reports when doing this. Candidates should be familiar with how many questions are on the paper and how many they are required to answer. They should know how much they are able to write in three hours. If they discover that it is not very much, they should try to develop the skill of writing fuller, more detailed answers within the set time. When sitting the examination, candidates would do well to take a common sense attitude. Where they are required to answer four questions it is not only vital that they attempt four answers. It is also of great importance that they allocate time and effort effectively, so that they produce four full answers. Candidates should only attempt a question where they are able to tackle all parts. If this is not the case, they should choose a different question. Candidates should read the questions carefully. Thought should be given to structure when planning any answer, whether to a problem or essay question, before a candidate actually begins writing the answer. Question 1 In order to advise Luigi's executors, it was essential to work out that the estate is insolvent as the known debts exceed the assets. Candidates should have advised that the executors could incur personal liability if they fail to take proper steps to ascertain all debts or fail to pay them in the correct order. Candidates should have advised the executors to place appropriate advertisements under section 27 to protect themselves. A good answer on this point would have mentioned the need for advertisement in a newspaper in the locality where Luigi previously ran his business. Candidates should have dealt with the mortgage on the house separately, explaining that the mortgage debt takes priority in relation to the mortgaged property and that, as the house was worth 10,000 more than the outstanding mortgage, the mortgage would be met in full from the security. Assuming there were no other costs to be met in relation to the mortgage, the 10,000 surplus would be added to the other assets, giving a total of 33,000 available for other debts. Candidates should then have gone on to set out and apply stage by stage the order for payment in insolvent estates. Such an approach enables candidates to work out which debts will be met in full, which will abate rateably and which will not be met at all. Finally, a good answer should have mentioned that Maria will receive nothing, as there would be no funds left to pay any of her deferred debt or to distribute under Luigi's will. Page 3 of 13

4 The question was in general reasonably well answered, although a number of candidates did not demonstrate adequate knowledge of the law and how it would apply to the facts. Some candidates failed to pick up on the statement that the executors were unsure whether more debts might come to light and did not explain the need for section 27 notices. A majority of candidates failed to fully explain the position regarding the mortgage. Whilst most, correctly, suggested that it would take priority, few explained that this was only in relation to the mortgaged property, or went on to explain that any surplus from the property would be available to meet other debts. Some weaknesses were generic and are discussed above in Comment on Overall Performance. This included poor structure, with a number of candidates setting out the whole statutory order in the abstract and then turning to the facts, rather than applying each category of debts to the facts as they went. This resulted in some candidates failing to identify which of Luigi's debts were in which category and therefore the order in which they would be met. Those who did later apply the categories ended up repeating material that they had previously set out. A number of candidates, whilst being able to set out the categories fairly accurately, demonstrated that they did not really understand them when it came to application. A number of candidates failed to recognise that the accrued holiday pay fell into the category of preferred debts, even though some of those candidates had listed wages when setting out the category. Most recognised that the debt to Maria was deferred and would not be met, as there would be insufficient funds, but some failed to state the reason and few explained that the rule applied even though the money was lent before she married Luigi. Question 2 In order to advise Ron and Stella, candidates were required to consider whether Gary s will was valid, the effect of Ron and Stella witnessing the will, the effect of the provision for 'Mum' (Gary's mother having died before the will was made) and the effect of the residuary beneficiary predeceasing. Candidates should have discussed whether the will had been executed in accordance with section 9 Wills Act 1837 as amended. The first issue was whether Gary's name in the top line could count as his signature and whether it was intended by him to give effect to his will. Particularly pertinent to the facts was the case of Wood v Smith [1992] but reference could have been made to cases such as Weatherhill v Pearce [1995] and good answers might have contrasted the situation with the earlier law eg Re Stalman [1931]. Affidavit evidence would be sought from Ron and Stella as to whether Gary regarded his name in the first line as his signature; as at least one good answer considered, this might have been suggested by his leaving that line uncovered. As Gary did not sign in front of the witnesses, the next issue was whether he validly acknowledged his signature to them. Cases such as Daintree v Butcher [1888], Re Gunstan [1882] and Re Groffman [1969] could be referred to on what witnesses need to see, and Weatherhill v Pearce [1995] on what might count as sufficient acknowledgment by a testator. The final issue regarding execution was whether the witnesses had signed in Gary's presence. Cases such Page 4 of 13

5 as Casson v Dade [1781] (contrast Norton v Bazett [1856]) suggest that the rules as to 'presence' are applied more leniently in relation to the testator s position when the witnesses sign than in relation to the witnesses' positions when the testator signs. Candidates should have mentioned that, although Ron and Stella witnessed the will, section 15 Wills Act 1837 would not apply as they are given the 10,000 to hold on trust Re Ray's Will Trust [1936]. Section 15 does not prevent witnesses from acting as executors or trustees. Candidates then needed to consider the effect of the dispositions in the will. Administration of Justice Act 1982 s21 (a restatement of the previous law on latent ambiguities) allows extrinsic evidence to be admitted where evidence other that that of the testator s intention shows that the language is ambiguous in the light of the surrounding circumstances. Thorn v Dickens [1906] was the closest case on the facts but other case law, such as Charter v Charter [1874], Re Jackson [1933] could have been referred to. The gift of residue would normally have lapsed but, as Phoebe was Gary's child, section 33 Wills Act 1837 would prevent it from lapsing and the gift would pass to Phoebe's issue, her son Michael. The question was not particularly well answered. The most common weaknesses were generic and are discussed above in Comment on Overall Performance. In particular, many candidates did not properly address both formalities and the provisions of the will. A worrying number were far too ready to dismiss the will as invalid and to go on to conclude that its provisions were therefore irrelevant and to devote most of their answer to the intestacy rules. Whilst a few discretionary marks could be allocated for this, candidates cannot expect to pass if they fail to discuss the really key issues raised. If an examiner includes issues of construction and lapse, these need to be addressed by candidates even if they consider the will may be invalid. In fact, many who dismissed it as invalid did so on the basis that Gary had not signed it, suggesting that they had not studied formalities thoroughly. Whilst there was an issue as to whether his handwritten name could count as a signature, there are a number of cases which should have prompted a proper discussion of this and which might have led to the conclusion that the will could be valid. When discussing whether Gary had acknowledged his signature, a number of candidates referred to cases on acknowledgment by a witness instead of the testator. Similarly, in discussing whether Gary was present when Ron and Stella signed, some candidates referred to cases that dealt with the presence of witnesses, rather than the presence of the testator, where the cases have taken a rather more lenient view. Most candidates who dealt with the will's provisions discussed the cases on latent ambiguity and some also mentioned section 21. However, many failed to explain that extrinsic evidence would be admissible because his mother died before the will was made - so 'Mum' could not have been intended to refer to her. Page 5 of 13

6 Most candidates who dealt with the residuary gift recognised that it would be saved from lapse by section 33 but a considerable number failed to explain that it only applied because Phoebe was a descendant of Gary's. Some candidates misunderstood the position and wrongly suggested that the residue would pass to Phoebe's husband Vernon or that it would pass under Phoebe's estate. Question 3 Part (a) of this question required a consideration of who would be entitled to a grant in several alternative situations. In considering who would be entitled to deal with Doug's estate, candidates should have explained that Ray's mental impairment suggests that he would not be fit to act and a grant would be made to Joan, with power reserved to Ray so that, if he recovered, he could take a grant of double probate. If Joan took out a grant but died before completing the administration, assuming Ray had not recovered, a grant of letters of administration de bonis non administratis would be made. There would be no chain of representation as Joan, the original executrix, died without appointing executors (having revoked her will by destruction). As Doug left a will, the order of entitlement to a grant of letters of administration with the will annexed is set out in NCPR r20. (This would also apply if Joan had died without taking out a grant to Doug's estate). Ray, as trustee of the residuary estate, would be entitled but unable to act because of his condition. He would need to be 'cleared off'. Next in line are residuary beneficiaries, Katie and Eleanor but Katie is under age. As there is a minor beneficiary, two administrators should be appointed, so Katie's mother could take a grant on her behalf. Otherwise, Marilyn could apply as another beneficiary under the will. Joan's estate would be administered as an intestate estate and the order of entitlement is set out in r22. As Joan's husband died before her and she has no issue or parents alive, Pauline would be entitled to the grant as a sister of the whole blood. On the alternative facts in a(ii), were Joan to have made a new will, Pauline would be entitled to a grant of probate to her estate. Assuming that Joan had taken out a grant to Doug's estate before her death, the chain of representation would apply - section 7 Administration of Estates Act If Pauline takes a grant to Joan's estate, the duties under Doug's estate would pass to her, without the need for a further grant. Pauline could not accept one appointment and renounce the other In the Goods of Perry [1840]. If Pauline wished to act in Joan's estate but not Doug's, she could renounce probate of Joan's will and apply for letters of administration with the will annexed Re Toscani [1912]. She is entitled to letters of administration under r20 as the residuary beneficiary. If she did not wish to act at all, Alan could take out a grant to Joan's estate under r20 as another beneficiary. In part (b), candidates were required to consider whether renunciation of a grant could be retracted. Richard's renunciation would not be final until filed at the Probate Registry. After that, he could only retract it with the consent of the court - r37 NCPR which would only be given if he could show that it would be for the benefit of the estate, as in Re Stiles [1898], contrast Re Gill [1873]. Candidates should have gone on to advise Richard that, if he thinks he might Page 6 of 13

7 wish to act later, he should not renounce but allow Helen to take a grant with power reserved to him, so that a grant of double probate could be issued to him at a later date. This question was generally not particularly well answered but there were some pleasing answers. Some candidates set out the order of entitlement to a grant under NCPR with little reference to the facts as discussed under 'Comment on Overall Performance'. A common weakness was a failure to adopt a methodical approach to the facts and the issues they raised. A worrying number of students did not seem to know the order of entitlement to a grant of letters of administration with the will annexed. Many appeared to wrongly think that it depended on the closeness of the relationship to the deceased (as is the case on intestacy) instead of on the gifts under the will. Some candidates did not discuss who would administer Joan's estate. Most candidates mentioned the chain of representation but many did not explain when it applies and, as a result, some tried to apply it in (a)(i), rather than (a)(ii). In part (b), some candidates did not discuss power being reserved to Richard, whilst others discussed only that and did not explain if and when a renunciation may be retracted. Question 4 In part (a), in order to advise Kumar, candidates were required to discuss whether Rahul had the mental capacity to make a new will in 2007 and to consider whether there were suspicious circumstances and/or undue influence. They also needed to consider the effect of the new will on Rahul's earlier will. To address these issues, candidates should have explained and applied the test of mental competence laid down in Banks v Goodfellow [1870] did Rahul understand that he was making a will, the extent of his property and the moral claims upon him cases such as Harwood v Baker [1840], Fuller v Fuller [2005] were relevant as Rahul frequently did not recognise his son Kumar. Other relevant points that could legitimately be mentioned were the degree of capacity needed for a simple or a complicated will In the Estate of Park [1954]; that a person not normally competent can execute a will in a lucid interval Cartwright v Cartwright [1793] contrast Richards v Allan [2000]. Candidates should also have explained the burden of proof and the presumptions - particularly pertinent on the facts, the presumption of continuance, as Rahul had suffered from dementia for five years and had worsened during the last year of his life. Medical evidence of this would presumably be available. It was likely on the facts that mental capacity would not be found to be present. The facts also required a discussion of suspicious circumstances Barry v Butlin [1838] - as the will does not appear to have been in Rahul's own handwriting and evidence might show that it had been written by Nina, who receives a legacy under the will. If there are suspicious circumstances, the normal rule that execution indicates knowledge and approval Guardhouse v Blackburn [1866] - would not apply and evidence would be required from the neighbours who witnessed the will. Page 7 of 13

8 Suspicious circumstances might also indicate undue influence. Factors are: Nina has been caring for Rahul, he seems to lack mental capacity, he did not appear to have had independent advice; the 2007 will shows a radical departure from the earlier will drawn up by his solicitor before the onset of dementia; Nina receives a benefit and had the potential for influence and, if she instigated and conducted the making of the will (not certain from the facts), undue influence might be found - Marsh v Tyrrell and Harding [1828]. However, in that case, the court's suspicion was dispelled by the evidence - might be here too, particularly as Nina does not seem to have procured a substantial benefit for herself (her legacy is only small, although its size in relation to the value of the estate is not known). Kumar must show that Nina actually exercised undue influence, not just that she was in a position to do so Craig v Lamoureux [1920]. As the 2007 will is likely to be invalid for lack of mental capacity, the revocation clause would not have any effect and the 2000 will would still be in force, so Kumar would inherit. It is likely that the original or a copy would be held by the solicitors who drew it up. In part (b), in order to advise Olivia, candidates were required to consider whether Meg had revoked her will and therefore died intestate. If not, everything would pass to Larry and Joe, and Olivia would not benefit from her mother's estate. As there is no suggestion that Meg's letter to her solicitor was signed and witnessed, it would not in itself revoke her will. Therefore, the question required a discussion of section 20 Wills Act 1837, governing revocation by destruction. Candidates should have set out and applied the key requirements of the section. The destruction must be carried out by the testator in person or in his presence and by his direction. Therefore, the solicitor was correct not to destroy the will as this would not have been a valid method of revocation. Meg must have destroyed her will with the intention of revoking it. Her intention seems clear on the facts in view of the letter to her solicitor. The main issue was, therefore, whether there was sufficient destruction. The section refers to 'burning tearing or otherwise destroying' - read ejusdem generis. Candidates should have discussed Cheese v Lovejoy [1877] and applied it to the facts and gone on to consider whether rendering the signatures invisible was sufficient, with reference to cases such as In the Estate of Nunn [1936], In the Estate of Morton [1887] or In the Estate of Adams [1990] (closest to the facts). In the latter case, the signatures were held to be 'not apparent', by analogy with section 21 Wills Act 1837, and the will was revoked. This seems the likely outcome and Olivia would be equally entitled with her brothers under the intestacy rules. This question was, in general, well answered, with many candidates identifying the issues and applying the law appropriately. However, there were also some weaker answers which dealt properly with only some of the relevant issues, whilst some candidates wrote at length on issues which were not pertinent to the question. Page 8 of 13

9 In part (a), some candidates did not address all the issues capacity, suspicious circumstances, undue influence. Whilst a pleasing number correctly stated the test from Banks v Goodfellow [1870], application was generally much less satisfactory. Surprisingly few candidates actually related the requirement for awareness of the moral claims on Rahul to the fact that he often did not recognise Kumar or realise he was his son. Some candidates spent time discussing the effect of insane delusions and/or the rule in Parker v Felgate [1883], neither of which seem relevant to the facts given. This is an example of the first two 'common weaknesses' discussed under the heading 'Poor Legal Problem Solving Skills' in Comment on Overall Performance above. Many candidates omitted to mention the presumptions and very few picked up that the presumption of continuance might be relevant here. Candidates who dealt with suspicious circumstances and undue influence generally dealt with the issues reasonably well, although again there was sometimes insufficient application to the facts. When discussing the effect on the earlier will, many candidates failed to appreciate that, if the later will was invalid, the revocation clause contained in it would be equally invalid and the 2000 will would still stand. Many spent some time discussing dependent relative revocation (conditional revocation) which was not relevant on these facts. In part (b), some candidates went into all the methods of revoking wills, despite the fact that most were irrelevant on the facts. Although most candidates mentioned the need for intention to revoke, a number did not apply it appropriately to the facts. A pleasing number of candidates referred to Cheese v Lovejoy [1877] but some candidates used it to say that Meg had not done enough, without considering the cases that have dealt with the destruction of signatures. Whilst the case of Adams [1990] referred to section 21 by way of analogy, lengthy discussion of the rules on alterations (as embarked on by some candidates) was not needed and sometimes led to confusion. Discussion of intestacy rules should have been kept brief as the question clearly states that the children were Meg's only relatives. It was therefore irrelevant to mention entitlement of other classes of relatives as a number of candidates did. Some candidates who considered the will still valid even wasted time discussing Inheritance (Provision for Family and Dependants) Act, despite the fact that the question stated clearly that this was not required. Question 5 Candidates were asked to discuss whether the statutory powers of appropriation, maintenance and advancement are wide enough to ensure that personal representatives can distribute assets in a way that is most advantageous to the beneficiaries. This required a consideration of the scope and purpose of the relevant statutory provisions in section 41 Administration of Estates Act 1925 and sections 31 and 32 Trustee Act 1925 respectively. In discussing whether these are wide enough, candidates should have considered possible widening of the powers by express terms in a will. Page 9 of 13

10 To address these issues, candidates should have considered the following: section 41 AEA power to appropriate particular assets in full or part satisfaction of legacy and advantages of doing so valuation by qualified valuer appropriation not possible if value exceeds beneficiary's entitlement need for consent sometimes excluded by express provision must take account of interests of all beneficiaries section 41(5) ensures their interests are considered section 31 TA 1925 power to apply income for maintenance, education, benefit of minor beneficiaries or pay to parent/guardian for these purposes ensures income can be used as needed and rest accumulated to be used in future years to supplement that year's income need to consider beneficiary's age, requirements, circumstances and what other funds available or liability of any other person to maintain him usual for express powers to allow PRs absolute discretion and allow them to ignore requirement to consider other funds gives better scope to confer appropriate benefit possible mention that beneficiaries over 18 with contingent interests are entitled to income section 31 powers apply provided gift carries intermediate income as rules are complex, better to make express provision in will section 32 TA 1925 power to advance capital for advancement or benefit of beneficiary of any age with interest in capital, even though contingent allows benefit as appropriate before full entitlement wide interpretation of 'benefit' Pilkington v IRC [1964] statutory limit of half presumptive share may be widened by express power consent required from anyone with prior interest requirement can be removed by express power express powers sometimes allow capital to be advanced to a life tenant to safeguard against his being inadequately provided for if income insufficient The question was not particularly well answered by many candidates. The most common weaknesses were generic and are discussed above in Comment on Overall Performance. In particular, a failure to address the question asked - for example, many answers merely recited the statutory provisions with little or, in some cases, no discussion of whether they allowed for appropriate benefit to be conferred on beneficiaries. Worryingly few candidates considered whether they were wide enough or how they might be widened by express powers. Many answers lacked detail. A few dealt with only some of the powers. A number of candidates discussed investment or other powers at some length. No credit is given for a discussion of powers which are in no way relevant to the question, although credit was given to those students who discussed how the power to invest in land for occupation by a beneficiary could provide an alternative to advancing capital to allow a beneficiary to purchase a home. A number of candidates referred to the statutory duty of care from Trustee Act That duty is limited in its effect to the powers set out in Schedule 1 of that Act and has no application to the powers referred to in this question. The powers of appropriation, maintenance and advancement are governed by the statutes that grant them and the case law that has interpreted those provisions. Page 10 of 13

11 Question 6 Candidates were asked to discuss whether Civil Partnership Act 2004 had gone some way to improving the operation of the intestacy rules and also whether the intestacy rules still fail to provide adequately for all those who should benefit from an estate, or whether further reform of the law of intestate succession should be considered. This required a consideration of the changes made to the intestacy rules by CPA and of who is or is not adequately provided for. To address these issues, candidates should have considered the following: CPA introduced same rights on intestacy for registered civil partners as for married couples, including the right to acquire the home shared with their civil partner improvement on previous position where same sex couples had no rights under intestacy and their only possible claim would have to be made under Inheritance (Provision for Family and Dependants) act 1975 whether the provision for spouses and civil partners is adequate or whether they should be entitled to a larger share of the estate particular difficulties if deceased solely owned the home and it is worth more than the survivor's entitlement should spouse/civil partner receive a larger share in all cases or only where the deceased did not leave issue no provision for cohabitants, same or opposite sex, who do not form a civil partnership or marriage only possible claim is under I(PFD)A, involving uncertainty and expense provision for children, whether legitimate, illegitimate or adopted but no provision for step-children again, their only claim is under I(PFD)A whether lack of provision in intestacy rules for cohabitants and stepchildren is appropriate, given the increase in numbers of those falling into these categories or whether more appropriate to expect people in these households to make a will; possible mention of Law Commission report whether any other dependants should be included under the intestacy rules or does I(PFD)A provide adequate protection This question was not generally well answered, although a number of candidates produced good discussions showing some thought and addressing the question asked. Again, common errors were those discussed above in 'Comment on Overall Performance'. In particular, many candidates made no attempt to address the issues raised by the question. Some merely recited the intestacy rules or the provisions of CPA (often including ones which had no effect on the intestacy rules) or both, without any attempt to consider whether the law had improved, whether it now made adequate provision or was in need of further reform. Many answers also lacked detail. Some answers included a good discussion of the provision for spouses/civil partners but ignored cohabitants or step-children, or vice versa. Page 11 of 13

12 Question 7 Candidates were asked to explain the circumstances in which a caveat, citation or probate action in solemn form would be appropriate and the relevant procedures to be followed in each case. This should have proved straightforward for candidates who had revised the relevant material. Candidates should have explained the following: Caveat used to prevent someone from taking a grant eg when validity of will disputed or dispute as to which of two wills should be proved or dispute as to who entitled to grant set in motion by written notice to Probate Registry response is to 'warn' caveator to enter appearance or issue summons for directions if enters appearance, caveat remains in force until probate claim commenced grant cannot be made to anyone other than caveator if 'appearance' does not show an interest, person warning can apply for it to be struck out if no 'appearance', applicant can proceed if files affidavit that warning served and no summons for directions received; can issue summons for discontinuance Citation used to speed up issue of grant eg when executor has done act constituting acceptance of office but has not applied for grant, he may be cited to show cause why he should not act when executor has done nothing, he may be cited to make up his mind whether to act or renounce when validity of will in doubt, citation may be used to call on executors or beneficiaries to propound the will can also be used to 'clear off' those with prior right to grant of letters of administration citor must enter caveat, then apply for citation with affidavit in support citation must be served on citee who has eight days to appear if no appearance, citor may apply for grant or citee may be ordered to take one out unless court exercises discretion to pass him over Probate action in solemn form used in contentious probate cases eg to prove a will not rational on its face or where its validity is challenged often commenced by person disputing will lodging a caveat also used where steps to revoke a grant eg where later will found proceedings commenced in accordance with CPR Part 57, using procedure laid down in Part 7. Form N2 used to commence action This question was in general not very well answered, with too many candidates failing to deal with all three types of process. Many candidates demonstrated awareness of when they would be used but a considerable number did not deal in sufficient depth with the procedures to be followed. Page 12 of 13

13 Question 8 Candidates were required to discuss whether the Inheritance (Provision for Family and Dependants) Act 1975 has gone too far in eroding the principle of testamentary freedom so that courts can ignore the deceased's wishes and make provision for anyone who feels hard done by. Candidates should have briefly explained the purpose of the Act - to allow claims to be made by certain categories of people (not just 'anyone') on the basis that reasonable provision has not been made for them under an estate. The question required a consideration of the categories of claimants and the circumstances in which they may apply, as well as the factors to be considered by the court and the way the law has been applied in the cases. In discussing these issues, an attempt should have been made to relate the law to the question so that a conclusion could be reached on whether 'anyone who felt hard done by' could succeed. Cases that might have been mentioned include Re Coventry [1979] and Espinosa v Bourke [1999] in relation to claims by adult children, which rarely succeed; for persons maintained, cases such as Jelley v Illiffe [1981] and Bishop v Plumley [1991] might be referred to. Answers should have stressed that anyone outside the specific categories in s1 can have no claim under the Act. This question was quite well answered by many of those who tackled it. The most common weaknesses were generic and are discussed above in Comment on Overall Performance. For example, some candidates recited the sections of the Act with little or no connection to the question asked. There was frequently far too little discussion of relevant case law. EXAMINATION STATISTICS Candidate Sitting: 78 Percentage Passing: 67% Distinctions Achieved: Institute of Legal Executives Page 13 of 13