LEVEL 6 - UNIT 14 LAW OF WILLS AND SUCCESSION SUGGESTED ANSWERS - JUNE 2012

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1 LEVEL 6 - UNIT 14 LAW OF WILLS AND SUCCESSION SUGGESTED ANSWERS - JUNE 2012 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2012 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1(a) SECTION A The Inheritance (Provision for Family and Dependants) Act 1975 (I (PFD) A 1975) provides the Court with discretionary powers to change the effect of a testator s will or the effects of the rules of intestacy. This power is subject to various requirements being met. Children are among the six categories of applicant under s.1(1)(c) (I)(PFD)A They are entitled to apply to the Court on the grounds that the deceased s will, or the rules of intestacy fail to make reasonable financial provision for them. Under s.25 (1) (I (PFD)A 1975 a child includes an illegitimate child or a child en ventre sa mère of the deceased. A child adopted by the deceased is also included under s.67 Adoption and Children Act A stepchild is not included. Under s.1(1)(d) (I (PFD)A 1975 any person who is not a child of the deceased but who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage is also entitled to make an application. This category would also include a stepchild if it can be proved that the step parent treated the child as a child of the family. There is no age restriction to children making an application and neither does marriage bar a claim being made under either s.1(1)(c) or (d) (I (PFD)A The maintenance standard of provision applies to both. Reasonable financial provision at this standard means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance under s.1(2)(b) (I (PFD)A In Re Coventry (1980) it was suggested that such financial provision would be what was reasonable in all the circumstances of the case to enable the applicant to maintain himself in a manner suitable to his circumstances. In Re Dennis (1981) it was suggested that maintenance only included payments which enabled an applicant in the future Page 1 of 16

2 to discharge the cost of his daily living at whatever standard of living was appropriate to that individual. It is the facts as known to the Court at the date of the hearing that are relevant to determining whether or not a deceased has made reasonable financial provision for the applicant. No provision can be made by the Court unless it is satisfied that the disposal of the deceased s estate or the rules of intestacy fail to make reasonable financial provision for a child as measured by the maintenance standard. The test is an objective one from the point of view of the Court, and a subjective one from the point of view of the deceased. Section 3 (1) I (PFD)A 1975 contains guidelines that apply to all applications in order to assist the Court in deciding whether the deceased has made reasonable financial provision. These include the financial resources and needs of the applicant, any obligations and responsibilities of the deceased towards the applicant, the size and nature of the estate of the deceased and any physical or mental disability of the applicant. In the case of children, the additional particular guideline to which the Court must have regard is the manner in which the child was being or in which he might expect to be educated or trained (s.3 (3) (I (PFD)A 1975). Question 1(b) A minor child does not have to show special circumstances in order to make a claim because he has a moral and financial claim on his parents. However, claims by adult children have been more problematical, particularly where a child is able bodied and able to earn a living. In those circumstances, the Court could consider it reasonable for no provision to have been made by a deceased. In the past, the Court would look for a special circumstance, such as a moral obligation owned by a deceased parent, this being classified as one of the obligations and responsibilities referred to in s.3 (1)(d) (I (PFD)A This was considered in Re Coventry (1979) where it was suggested that some sort of moral claim must be established by the applicant to be entitled to be maintained at the expense of the deceased s estate. A moral claim would be more likely to be found by the Court where a child was disabled or had, for example, been employed in a family business on a low wage in anticipation and expectation of being provided for on death, Re Abram (Deceased) (1996). Generally, the Courts took the view that in the absence of any moral obligation, a deceased was not under any moral duty to provide maintenance for an adult child, Re Jennings (1994). In Re Hancock (1998), the applicant was 58 years old at the time of her father s death and 69 of age at the date of the hearing. In that case the Court considered the requirements of s.1(1)(c) (I (PFD)A 1975 in that the applicant did not have to show a moral obligation or other special circumstance in order to succeed with an application. However, the Court commented that where the adult child was in employment with an earning capacity for the foreseeable future, then the child was unlikely to succeed with an application without some special circumstance such as a moral obligation. More recently, in Espinosa v Bourke (1999) the Court stated that the 57 year old applicant did not have to show any kind of special circumstance and that an adult child was in no different position from any other applicant who has to prove their case. In all cases, the criteria in s.3 (1) (I) (PFD) A 1975 must be applied and for the purposes of s.3(1)(d) the obligations are both moral and legal. Additionally, in the case of an adult child capable of working, they would have to provide a weighty factor to show a failure to make reasonable financial provision. Page 2 of 16

3 Taking into account the particular guidelines provided by I(PFD)A 1975 and the decisions made during recent years by the Courts, lame duck cases made by adult children with earning capacity are likely to fail. However, children who lack capacity might succeed on the basis of their financial needs and resources. The problem is that cases involve many variables. A child may have more than one ground upon which to make a claim and account must be taken of those who will benefit from the estate if the child does not establish a claim. The case of Re Jennings (1994) is a good example of where the adult child s claim failed and the estate passed to charity. In order to achieve justice, in Hanbury v Hanbury (1999), the Court found special circumstances where the adult daughter of the deceased only had a mental age of 12 (due to her mental disability) and this ensured that adequate assets were available to place in a discretionary trust for her benefit. In conclusion, the Courts in the future are going to have to continue to consider the merits of applications made by adult children on the particular circumstances of the case. Question 2 The doctrine of mutual wills applies where two or more testators have agreed to make wills leaving all or part of their property on death in the same way and on the understanding that upon the death of the first testator, the surviving testator will not make a new will changing the beneficiaries. They tend to be used by two individuals who are married or in a civil partnership and where there may be a degree of distrust between them both. There are three requirements for the doctrine to apply. Firstly, there must be a definite agreement between the parties to make mutual wills. If there is no express provision contained in the wills that they are mutual wills, the Court will require there to be clear evidence of the agreement between the parties. The fact that two wills are made in identical terms does not necessarily mean that they are mutual wills. It is the agreement by the parties not to revoke the wills unilaterally and without the other s consent that is the important point. This was illustrated in the cases of Re Oldham (1925) and Re Goodchild (1996) and, more recently, in Charles v Fraser (2010) and Fry v Denham-Smith (2010). In the latter cases the Court made it clear that for there to be mutual wills they must be substantially in the same terms and offer reciprocal benefits, and that there must be a contract or agreement that the wills should be irrevocable. The agreement may be oral or in writing, incorporated into the will, or proved by extrinsic evidence. The agreement may apply only to part of the residuary estate and the second testator does not have to obtain a personal benefit under the first will. The second requirement is that the parties agree that the survivor will be bound by the agreement. In Re Hagger (1930), the wills contained a declaration that the wills should not be altered or revoked except by mutual agreement. The Court decided that it was implied by the declaration that the parties would be bound by the agreement. Similarly, in Re Green (1951) spouses made wills which included an agreement that if the survivor had the use of the other s property for life then the survivor would provide a will for the carrying out of the wishes expressed in the other s will. Ideally, the agreement to be mutually bound should be included in the wills in express terms, otherwise clear and satisfactory extrinsic evidence will be required and was commented upon by the Court in Re Cleaver (1981). Thirdly, a binding event must occur. This requirement cannot be satisfied if the first testator dies having revoked his mutual will prior to his death as in Stone v Page 3 of 16

4 Hoskins (1985). Similarly, it is not satisfied if the first testator dies knowing that the agreement to be bound no longer stands because the other testator has already repudiated it - Dufour v Pereira (1769). The law was clarified by the Court in Re Dale (1994) where the Court stated that the doctrine of mutual wills may apply even where the surviving testator receives no benefit under the will of the first testator to die, thus implying that the binding event must be the death of the first testator. If the three requirements are met, then equity will enforce the agreement against the surviving testator by treating him as holding the property concerned on a constructive trust, and in accordance with the terms of the mutual will. Thus what is known as the crystallisation of the trust has occurred. The constructive trust does not stop the surviving testator from revoking his will and making a new will, any appointment of executors in his new will is effective and on his death the new will must be admitted to probate. However, the surviving testator s personal representatives take the property in question subject to the constructive trust. Examples of case law include In the Estate of Heys (1914), Re Hagger (1930) and Re Cleaver (1981). Although equity does not prevent the revocation, it does frustrate the revocation of a mutual will. Due to the equitable doctrine of mutual wills, any beneficiary under the constructive trust is entitled to make a claim to the Court, as in Birch v Curtis (2002). The property which is the subject of the constructive trust depends upon the terms of the agreement contained in the mutual wills. The trust may apply to specific items of property or to the surviving testator s residuary estate either wholly or in part. Examples include Birmingham v Renfrew (1937), and Re Green (1951). In Healey v Brown (2002), it was decided that the property bound by the trust was only half of the matrimonial home of the first testator to die. This was because S.2.of the Law of Property Act 1989 prevented the doctrine affecting the property of the surviving testator. Question 3(a) A testator must know and approve the contents of the will. It follows that a testator must understand the will and agree that what it says is what he meant it to say. The Court gave guidelines in Guardhouse v Blackburn (1866). Clearly, it must be satisfied that the testator knew and approved the contents of the will. If a testator correctly executes his will then, in the absence of any suspicious circumstances, that is prima facie evidence of the testator s knowledge and approval of its contents. The testator must intend the document to operate as a will and thus take effect on his death. If the Court finds any evidence of fraud then it would deny probate wholly or in part. The Court can call for affidavit evidence from either the witnesses to the will or from those responsible for the preparation of the will in order to deal with any queries it may have before admitting the will to probate. In Fuller v Strum (2002) the will was drawn up by one of the principal beneficiaries. Notwithstanding the fact that the Court had before it the report of a handwriting expert that there was strong evidence of the testator s signature being a forgery, the Court still found that the testator had knowledge of and approval of the contents of the will. Page 4 of 16

5 In Re Rowinska (2006) the testatrix was a Polish woman aged 87 who spoke little English and had previously executed a professionally drawn will in favour of her family and Polish charities. Seven weeks before she died she made a new will leaving her entire estate to a man who had repaired her television aerial and who had prepared her will on his computer. The Court decided that she did not know and approve the contents of the will. The normal rule is that a testator must know and approve of the contents of the will at the time it is executed Guardhouse v Blackburn. However, In the Estate of Wallace (1952) the Court held that a will which the testator had executed the day before his death, even though he did not know or approve it s contents at the time of execution, was held to be valid on the basis that the testator understood that he was executing a will which had been prepared in accordance with earlier instructions he had given to his solicitor. There is a presumption that a testator has testamentary capacity, and if the will has been properly executed in accordance with the Wills Act 1837, then there is a rebuttable presumption of knowledge and approval. This presumption does not apply where a testator is dumb, blind, or illiterate; or the will has been signed by another on the testator s behalf; or there are suspicious circumstances. If a testator is unable to speak or read and write, then the Court will require affidavit evidence to show that the testator had the required knowledge and approval. For example, evidence that the will was read over to a blind testator before he executed the will would suffice, or the inclusion of an attestation clause worded to the effect that the testator had signed the will after the will had first been read over to him in the presence of the witnesses and he appeared to understand and approve of its contents, would suffice. In Sherington v Sherington (2005), a solicitor who had been married twice, executed a will prepared for him by his stepdaughter. Although his relationship with his second wife was very bad, he left his entire estate to her. Shortly afterwards he died in an accident and his will was challenged by the adult children of his first marriage on the grounds of his lack of due execution and his lack of knowledge and approval. Although the will was badly drafted, the Court found that its provisions were straight forward, although surprising in the circumstances. Although it was clear that the testator had knowledge of the contents of the will, the Court was concerned with whether the testator had approved its contents. Reluctantly, it found that it was inconceivable that an experienced solicitor of 56 years of age would not have read and approved the will before it was signed and admitted it to probate. Question 3(b) A testator s lack of knowledge and approval of the whole or part of the contents of his will which he executes may be due to mistakes on his part or on the part of the will draftsman. There can be a mistake as to the whole will, for example, where a testator does not know and approve the contents of the will because he does not intend to execute the document as his will. In the case of In the Goods of Hunt (1875), two sisters lived together and one prepared two wills for them each to sign. By mistake one sister executed the will prepared for her sister. The Court refused probate because if she had known of the contents of the will she would not have signed it. There can be a mistake by the testator as to part of a will, as in Re Phelan (1972), where the testator executed a homemade will in favour of his landlady and her husband. As he wrongly believed that his three holdings and Page 5 of 16

6 unit trusts had to be disposed of by separate wills, he then executed three more wills in their favour, each being made on a will form at the same time and each disposing of a separate holding. Each will contained a printed revocation clause which the testator failed to delete. The Court took the view that as the testator had never considered the printed clause in each will form, it ordered that all four wills be admitted to probate, but with the omission of the revocation clause in the three later wills. Mistakes can arise through clerical or typing errors or by the draftsman failing to include words or by omitting to include words. Unless the discrepancy comes to the notice of the testator, he does not know and approve of those words, an example being In the Goods of Walkeley (1893), where an error occurred in the numbering of a house when the engrossment will was prepared. Similarly, in Re Reynette-James (1976), thirty-three words were omitted by a typist when engrossing the will. If the testator knows and approves of the words used in his will, then it does not matter than he is mistaken as to their legal effect because the words must be admitted to probate, as in the case of In the Estate of Beech (1923). In Collins v Elstone (1893) the testatrix executed a will on a printed will form which contained a revocation clause. The testatrix read this and asked the friend who had obtained a printed will form for her what this meant and was wrongly assured by the friend that the effect of the clause would not be to revoke a previous will she had made. The Court took the view that as she had executed her will knowing that the clause was included, she was bound by that clause even though she had misunderstood its effect. The Court has limited power to alter the words in a will. It can omit from the will words of which the testator did not know and approve. For example, in Morrell v Morrell (1882), by mistake, the testator inserted the number 40 in his will when he meant to give all of his shares and not that number. The Court can also order rectification of a will and it can construe a will as if certain words had been inserted, omitted, or changed - if it is clear from the will itself both that an error has been made in the wording and what the substance of the intended wording was. On deaths occurring after 31 st December 1982, the Court has had power under Section 20 of the Administration of Justice Act 1982 (AJA 1982) to order that a will should be rectified so as to carry out the testator s intentions. However, an order will only be made if the Court is of the opinion that the wording of the will fails to carry out the testator s intentions as a result of either a clerical error or a failure to understand the testator s intentions. An application for rectification must be made to the Court within six months from the date a grant of representation is first taken out, although the Court does have discretion to extend this time limit. In the case of Re Segleman (1995), a 92 year old testator died having made a will two months before his death containing a clause drafted by his solicitor which had been prepared before he had given the names of some beneficiaries. Either as a result of a clerical error or a failure on the part of the solicitor to understand the testator s instructions, the clause did not carry out his intentions. In any event, the Court decided that it did have power to rectify the will. In the case of Re Martin (2007), the testatrix s will provided for each of her godchildren to receive a one-twentieth share of her estate, but as it was drawn the will did not dispose of all her property. So there was something wrong somewhere. The court concluded that the testatrix probably had used the words Page 6 of 16

7 one-twentieth but had intended to say twenty per cent. On that basis, the Court ordered rectification on the basis that this was a clerical error, although, equally, it could be said that it was a failure to understand the testatrix s instructions and the solicitor who drafted the will admitted that he had been negligent in the circumstances. In Sprackling v Sprackling (2008), the court ordered rectification of a will where a will draftsman had incorrectly treated the words farm and farmhouse as interchangeable. In Morley v Rawlings and Another (2011), the testator and his spouse made identical wills but, in error, executed the wrong wills. The will was invalid because it did not comply with s.9 of the Wills Act The testator did not intend by his signature to give effect to that will, namely the will of his wife. The Court was unable to order rectification under s.20 AJA 1982 because it was neither a clerical error nor a failure to understand the testator s instructions. On the death of the surviving spouse, the couple s combined estate passed under the laws of intestacy. Where there has been a mistake by the solicitor will draftsman, then disappointed beneficiaries, who are owed a duty of care by the solicitor, may be able to pursue a claim for damages in negligence against the solicitor as well as seeking rectification under s.20 (1) AJA In Walker v Geo A Medlicott & Son (1999), it was stated that disappointed beneficiaries should first seek the remedy of rectification before suing the will draftsman in negligence. Only if a claim for rectification could not be made should a claim for negligence be pursued. Question 4 The powers given to personal representatives when administering an estate are principally contained in the Administration of Estates Act 1925 (AEA 1925), Trustee Act 1925 (TA 1925), and in the Trustee Act 2000 (TA 2000). The TA 2000 widens the powers previously given to personal representatives under the AEA 1925 and TA The powers of trustees also apply to personal representatives, regardless of whether they are also trustees. s.35 (1) TA 2000 defines trustee as including a personal representative. The rules governing delegation by personal representatives are very similar to those applicable to trustees, these being found in the TA 2000.There are two forms of delegation, collective delegation and individual delegation. The personal representatives as a group can delegate some of their functions to an agent. For example, they can authorise an auctioneer to sell property of the estate. An individual personal representative can delegate some of his powers to someone else, for example if he is unable to act for some reason for a period of time. Section 39 AEA 1925 as amended by the Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) gives personal representatives power to sell, mortgage, or lease any property in the estate, and to purchase land. s.6 TLATA 1996 gives personal representatives all the powers of trustees of land, including the power to purchase land for investment or as a residence for a beneficiary. Thus they have power to convey land to an adult beneficiary absolutely entitled with or without that person s consent, or to partition land between beneficiaries who are entitled either on a joint tenancy or tenants in common basis. Page 7 of 16

8 Although these extended powers should now be sufficient for most purposes, they may be amended or excluded by the will, or be made subject to obtaining the consent of any person. Prior to TLATA 1996 it was common practice to include a power to purchase a home for a beneficiary, but it is now less important to do so because of the extended powers contained in s.6 TLTA It is important to note that it is also prudent to include such a power because, otherwise, personal representatives would not be entitled to purchase land using personalty in an estate which did not represent the proceeds of sale of land. If the will imposes a trust for the sale of land, a power to postpone sale is always implied under s.5 TLATA The powers given to personal representatives under s.8 TA 2000 to purchase land either for an investment or for a beneficiary to live in or for any other reason should now, therefore, be sufficient in most circumstances. Section 41 AEA 1925 enables personal representatives to appropriate assets of the estate in satisfaction of a legacy, provided that no specific beneficiary is prejudiced. The value of the asset must not exceed the value of the legacy as in Re Phelps (1980). This power enables the personal representatives to avoid the expense of realising assets if they do not wish to do so and the beneficiary agrees to accept the assets in lieu of any cash legacy given. Personal representatives have no power to appropriate an asset which is already bequeathed specifically to another beneficiary. The personal representatives must obtain the consent of the beneficiary in whose favour the appropriation is to be made. Consequently, it is common practice to consider excluding the need to obtain the consent of the beneficiary when drafting a will. Power to insure assets is provided by s.19 TA 1925 and gives personal representatives the same authority to insure as they would were they beneficial owners. Consequently, this power is now sufficient in scope, whereas prior to 2000 personal representatives could only insure for fire cover up to two thirds of the market value of the property, the type of and level of cover also being restricted. Powers of investment are given to personal representatives under s.3 TA 2000, which enables them to make a wide range of investments, subject to them taking appropriate advice. There is a strict duty of care imposed by s.1 TA 2000 and trustees must exercise such care and skill as is reasonable in all the circumstances. Further, they must take into account s.4 TA 2000 which sets out the standard investment criteria which direct personal representatives to consider the suitability and diversification of investments. There is a requirement under s.5 TA 2000 for trustees to take appropriate advice before exercising their powers of investment unless they can reasonably take the view that this is unnecessary. This is unlikely unless the trustees themselves have suitable knowledge of investments. The wider powers given by TA 2000 should be sufficient for personal representatives in most circumstances. An important power is given to personal representatives under s.31 TA 1925 to make payments from the income of the estate to a parent or guardian or to apply income for the maintenance education or benefit of a minor. Income that is not used must be accumulated although this is available for maintenance in later years. Personal representatives must take into account the age and requirements of the minor in question, and also take account of any other funds or assets available. Section 31 TA 1925 only applies if the gift carries interest or income and it is also subject to contrary intention in the will. Page 8 of 16

9 Section 31 TA 1925 tries to provide minor beneficiaries with sufficient money for all their reasonable needs. There may be a need to provide additional financial assistance and this could be achieved by giving personal representatives absolute discretion to make payments from income and without taking into account other funds. It gives no power to the personal representatives to use income for a remainder beneficiary because there is a prior interest. This could be remedied by giving an express power to the personal representatives in the will. Section 32 TA 1925 gives power to personal representatives to advance up to one half of a beneficiary s vested or presumptive entitlement to him or for his benefit. Benefit and advancement was given a wide definition by the Court in Pilkington v IRC (1962). Any beneficiary with a prior interest will have to give consent before any advancement is made. Section 32 TA 1925 is subject to any contrary intention expressed in the will. Consequently, a testator could consider extending the statutory power to permit a full share to be advanced and also to remove the need to obtain the consent of a beneficiary with a prior interest. Further, personal representatives could be given absolute discretion whether to take into account the advance when the final distribution of the estate takes place. In relation to both maintenance and advancement under s.31 and s.32 TA 1925 provision could be made in the will to enable the personal representatives to accept a receipt from the parent or guardian of any minor recipient at the age of 16 years. Where the deceased owned a business, unless the will provides otherwise the personal representatives have no authority to carry on the deceased s business other than with a view to sale as a going concern and as decided in Re Crowther (1895). Further, the sale should take place within one year of the deceased s death and there is no implied power to retain the business other than with a view to its sale. If the testator wishes the business to continue or to be run for the benefit of the beneficiaries, then it is essential to provide the personal representatives with express power to continue with the business other than with a view to sale and, possibly, to appoint different personal representatives who may be more capable of running the business as a going concern. This may be particularly important, depending upon the knowledge and experience of the personal representatives, in relation to the specific business owned by the deceased. Question 1(a) SECTION B If a deceased has died without having made a valid will, he dies wholly intestate. Rule 22 of the Non-Contentious Probate Rules 1987 specifies the order of priority to take out a grant of letters of administration to the estate of the intestate. This follows the order of beneficial entitlement to the estate. If Ann is unwilling to take out the grant of letters of administration to her husband s estate, the next persons entitled to do so would be the children of his brother Robert, namely Margaret and Belinda. This is because under the commorientes rule (s.184 Law of Property Act 1925), where there is no evidence of the order in which deaths have occurred then, for succession purposes, the younger is deemed to have survived the elder. Any relative specified in Rule 22 is only entitled to take out the grant if he or she is entitled to share in the estate. Page 9 of 16

10 Given the value of Paul s estate and the fact that he has no children it is Margaret and Belinda who are entitled to benefit. An application by a living relative is preferred to one by the personal representative of a deceased relative. An application by an adult relative is preferable to one on behalf of a minor relative. As Belinda is only 2 years of age it would not be appropriate for Margaret alone to apply for the grant of letters of administration to her uncle s estate. Due to her sister s minority interest, it would be necessary for two administrators to be appointed during the minority period pursuant to s.114(2) Superior Courts Act Either Belinda s mother Gladys, or Paul s half-sister, Susan, would to be the obvious choices to be appointed as a second administrator of Paul s estate, Jayne, as step sister, has no right to a grant as she is not a blood relative of Paul. Before Margaret and Susan apply for the grant of administration, they must clear off all persons who have a prior right to a grant, namely Ann. This entails them giving notice to Ann of their intention to take out the grant of administration to her husband s estate. Question 1(b) As Paul died intestate, the administration of his estate will be governed by the Administration of Estates Act 1925 (AEA 1925) as amended, and the Intestates Estates Act 1952 (IEA 1952). If a deceased dies wholly or partially intestate, his assets automatically become the subject of a statutory trust under s.33 AEA The administrators hold the entire estate on trust with the power of sale. They are required to pay funeral expenses and liabilities from the estate, with the remainder of the estate being held by them for distribution in accordance with the provisions of s.46 AEA As Paul and Ann had no children, Ann is entitled to all of Paul s personal chattels as defined by s.55(1)(x) AEA 1925; a statutory legacy of 450,000 together with interest thereon from the date of death; and one half of Paul s residuary estate. The other half of his residuary estate passes (prima facie) to Robert as a brother of the whole blood and is deemed to have survived Paul by virtue of the operation of s.184 Law of Property Act As Robert has made a will leaving his estate to his wife Gladys, she will receive the half share of the residue of Paul s estate. If Robert had pre-deceased his brother Paul, the half share would have been divided equally between Robert s children, Margaret and Belinda. They are entitled to receive their father s share of Paul s estate in accordance with s.47 AEA 1925, per stirpes in equal shares on the statutory trusts upon each of them attaining 18 years of age. Under s.67 Adoption and Children Act 2002, Belinda is treated as the child of Robert. As Susan is the sister of the half-blood of Paul she is not entitled to a share of his estate. On present figures, the total value of Paul s estate is 760,000. Consequently, Ann will prima facie receive the personal chattels valued at 10,000, a statutory legacy of 450,000, and an additional sum of 150,000, being one half of the residuary estate. Page 10 of 16

11 Question 1(c) Ann wishes to retain the home which was owned by her husband and can ask the personal representatives of her husband s estate to appropriate it to her provided that its value does not exceed her entitlement to her husband s estate under the statutory trusts - s.41 AEA This is not the case here as the house is worth more than her entitlement, so she has no automatic right to require the personal representatives to appropriate the house. However, Ann does have a special right which must be exercised within twelve months of the date of the grant of administration by giving written notice to the personal representatives in accordance with Sch. II IEA The importance of complying with Sch. II was emphasised in Kane v Radley-Kane (1998). If a spouse is the sole personal representative, then he or she would have to give written notice to the Court or appoint a second personal representative, or obtain the consent of all the adult beneficiaries of the estate. The house is valued at the date of the appropriation and not at the date of death, as in Re Collins (1975) where the house was valued at 4,200 at the date of death and 8,000 at the hearing of the case three years later. If she exercises this right Ann s share of the residuary estate would (on present figures) be reduced from 150,000 to 50,000 in order to reflect the fact that she was retaining the house. Question 2(a) It is important to determine whether alterations made in a will were made before or after the will was executed by the testator. An alteration made to a will before the will is executed by the testator is valid only if the testator intends the alteration to form part of the will when it is executed. There is a rebuttable presumption that an unattested alteration is made after the execution of the will, and as stated in Cooper v Bockett (1846) the presumption is rebuttable by evidence from the will itself or by extrinsic evidence such as affidavit evidence from the witnesses to the will. Section 21 Wills Act 1837 states that no obliteration or other alteration in a will after it has been executed shall be valid except so far as the words or the effect of the will before such alterations shall not be apparent, unless the alteration has been executed in accordance with provisions of the Wills Act 1837 (WA 1837). Consequently, three questions may arise. Firstly, was the alteration made before the execution of the will, in which case the alteration is valid. Secondly, was the alteration duly executed and, if so, it is valid. Thirdly, has the alteration made any part of the will not apparent? If it is not apparent and the testator intended to revoke it, then that part of the will is revoked. The requirements of s.21 WA 1837 apply to the alterations made to Clause 3 of the will, and a good answer will consider these in turn. Clause 3(ii) The obliteration is such that the original wording is not apparent by natural means. In The Goods of Itter (1950) strips of paper had been stuck over the original wording and the court decided that the original wording had been obliterated. Scientific methods of determining the original wording are not permitted as the wording is not being read by natural means. In the case of In the Estate of Hamer (1943) it was stated that the effect of an obliteration will be that the grant of probate will be made with a blank space instead of the obliterated words. Consequently, only Frank will be entitled to receive his brother s paintings. Page 11 of 16

12 Clause 3(iii) In the case of In the Goods of Bellamy (1886), it was stated where there is an alteration in pencil it is presumed to be merely deliberative, whereas an alteration in ink is intended to be final. The presumption is stronger if there are both alterations in ink and pencil. Thus, the amendment that has been made will have no effect and the shares in ABC plc will pass to Adam Finch and to Petula Simm. Clause 3(iv) As the alteration has been initialled by the witnesses, this suggests that the alteration may have been made by the testator prior to execution. Consequently, affidavit evidence from the attesting witnesses, Robert and/or Sylvia Booth, will be required if the alteration is to be found valid. Otherwise, applying s.21 WA 1837, the alteration is ineffective because it has not been initialled by the testator Albert Parker, in which case the original legacy of 10,000 will stand. Clause 3(v) As the alteration has been initialled by Albert and both of his witnesses, it is presumed to have been made prior to the execution of the will. Consequently, the alteration is effective and a legacy of 10,000 will be payable to Harry. Clause 3(vi) There has been an obliteration and also an attempted substitution. The doctrine of conditional revocation may apply and this would allow the use of forbidden methods such as the use of chemicals, infra-red photography, or extrinsic evidence to establish the original wording in the will. Question 2(b) Where a will has been badly drafted rules have been developed to try to deal with the problems that may arise as a result of the poor drafting. In Albert s will he has purported to make a gift of Blackacre to his brother John while at the same time imposing a trust on the same property in favour of John. Consequently, the two clauses contained in his will are inconsistent. The rule in Lassence v Tierney (1849) applies where an absolute gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail for some reason, then the absolute gift takes effect so far as the trusts have failed and to the exclusion of the residuary beneficiary. In Hancock v Watson (1902) it was stated that the rule applies to an absolute gift of realty as well as to personalty. The purpose of the rule is to reconcile two inconsistent provisions in a testator s will, and in the case of Albert s will so far as the disposition of his property Blackacre is concerned. If John dies then his children will take Blackacre. However, if John were to die childless the trust for his children fails and the absolute gift takes effect and Blackacre passes under either John s will or intestacy. Consequently, the rule imputes to Albert an intention to modify the absolute gift to his brother only so far as is necessary to give effect to the trusts. Question 3 If a beneficiary predeceases the testator, then the gift made to that beneficiary will lapse. A testator can exclude the doctrine of lapse if, in his will, he makes a gift to two or more persons as joint tenants; then, unless all of the beneficiaries predecease the testator, no lapse can occur. If the testator s will contains words of severance so that the beneficiaries take as tenants in common, if one of the Page 12 of 16

13 beneficiaries predeceases the testator, the gift made to that beneficiary will lapse, the relevant case being Page v Page (1728). In clause (i) Toby has gifted Whiteacre to his sons equally, this word of severance means that they take Whiteacre as tenants in common; and as Stuart has predeceased Toby, his share lapses and falls into residue. Under the rule in Lawes v Bennett (1785), if a testator by his will makes a specific gift of the 10 acre plot of land to a beneficiary and then later grants to another person or organisation an option to purchase the 10 acre plot, the exercise of that option after the testator s death adeems the specific gift to the beneficiary. Consequently, the gift of the plot of land to Jack contained in clause (ii) is adeemed when Property Developments Ltd exercise their option. Jack is not entitled to the sale proceeds of the plot of land in accordance with the decision in Weeding v Weeding (1860). Jack is only entitled to receive the rents and profits due from the date of death of Toby until the exercising of the option, as stated in Re Marlay (1915). The gifts of money to the grandchildren, nieces and nephews are all class gifts and the class closing rules as set out in Pearks v Moseley (1880) apply. The purpose of the rules is to avoid delay in the distribution of an estate which might otherwise arise where, for example, it may be necessary to wait to see if new members come within the class of beneficiaries. The class closing rules are rules of construction and the rule which applies depends upon whether the gift is an individual gift to each member of a class, a class gift where each member of the class takes a share at birth, or a class gift where a contingency is imposed on each member of the class. The gift of 5,000 in clause (iii) made to the children of Ian and Ben is a class gift and the class closes on Toby s death. As stated in Ringrose v Bramham (1794), it is only the children of Ian and Ben living at Toby s death who can take under the gift. If they had had no children living at the time of Toby s death then the gift would have failed. It is immaterial whether the children satisfy the contingency of reaching 21 years of age before or after Toby s death. Ian and Ben have three children between them, Helen, Alan and Tom. Helen has already reached 21 years of age at the time of Toby s death, and is therefore entitled to 5,000, and Alan and Tom will be similarly entitled when they reach 21 years of age. The gift in clause (iv) to Toby s nephew and nieces is an immediate contingent legacy and the class closes at the time of Toby s death. If a beneficiary has then satisfied the contingency, then in accordance with the rule in Andrews v Partington (1791), the class closes. As Sarah has already attained 21 years of age at the time of Toby s death the class has closed and Rose and Mark will only take when they reach 21 years of age. Anna was born after Toby s death, but was en ventre sa mère at that date so she will also be entitled to take when she reaches 21 years of age. The gift in clause (v) of 100,000 to Sophie will not lapse because it will pass to her daughter in accordance with s.33 (1) Wills Act 1937 (WA 1837). s.33 (1) is an exception to the doctrine of lapse which applies where a testator leaves property in a will to a child or remoter issue. It states that if the intended beneficiary dies before the testator leaving issue, and the issue of the intended beneficiary are living at the testator s death then, unless the contrary is stated in the will, the bequest takes effect as a bequest to the issue living at the testator s death. Sophie s daughter, Lucinda will therefore take the gift. Page 13 of 16

14 The doctrine of lapse applies to the gift of 5,000 made in clause (vi) to Angela because she has died in Toby s lifetime. That gift is not saved by s.33 (1) WA 1837 because Angela is a friend and not a child or remoter descendant of Toby. The doctrine of ademption applies where a specific gift is made in a will and the subject matter of the gift does not form part of the testator s estate at the date of death. This may occur because the testator has sold the subject matter of the gift in question or because it has ceased to exist for some reason during the testator s lifetime. Ian and Ben closed their father s bank accounts unaware of the fact that the Bedfordshire bank account was specifically referred to in their father s will. The proceeds of the Bedfordshire Bank account have been merged with the proceeds of some other accounts and have been placed in a deposit account with another bank. A similar situation arose in Re Dorman (1994), where the Court decided, with some hesitation, that there had been no change of substance of the legacy and that the gift was not adeemed. This is an example of the Court allowing the intention of the testator to override the doctrine of ademption. The difficulty with the closure of Toby s Bedfordshire Bank account is that it has been merged with the proceeds of other accounts and invested in a deposit account with another bank. Consequently, unlike the circumstances of Re Dorman, the change has been more than one of form only. Similar examples are rare although it was stated in Re Slater (1907) that ademption would not occur if the subject matter of the gift had changed in form only, but essentially remained the same thing. Examples of case law which illustrate this point include Re Clifford (1912), Re Leeming (1912), and Soukun v Hardoyle and Others (1999). Toby s widow, Sybil, will receive his residuary estate which will include the proceeds of sale of the plot of land, the lapsed gift of 5,000, and possibly the proceeds of the new bank deposit account. Question 4 The formalities for validly executing a will are contained in s.9 Wills Act 1837 (WA 1837). This states that no will shall be valid unless it is in writing and signed by the testator or by some other person in his presence and by his direction, and it appears that the testator intended by his signature to give effect to the will, and the signature is made with knowledge by the testator in the presence of two or more witnesses present at the same time, and each witness either attests and signs the wills or acknowledges his signature in the presence of the testator, but not necessarily in the presence of any other witness. S.9 WA 1837 also states that no form of attestation is necessary. Applying the requirements of s.9 WA 1837 to the will of Jawad, it has been written in his own handwriting. This is known as a holograph will. However, the will has not been signed by Jawad. The Courts have in a number of cases considered the interpretation of the word signature. In Re Cooke (1960), the testator wrote her will in the form of a letter commencing with her name and then signing the letter your loving mother. The letter was attested and held by the Court to be valid because what the testator had done was intended as a signature. In Weatherhill v Pearce (1995), the testator had completed his own homemade will on a pre-printed form. The testator s name appeared in the middle of the attestation clause, but nowhere else at the end of the will. The Court decided that the testator had intended her name so positioned in the attestation clause to constitute her signature, and thus the Court was satisfied that the requirements of s.9 WA 1837 had been met. Page 14 of 16

15 In Wood v Smith (1992), the Testator had handwritten his will and at the start had put my will by Percy Winterbone, before writing out the remainder of his will. The testator did not sign his will at the end, but the Court was satisfied after hearing from the attesting witnesses that the testator regarded his name at the top to be his signature. The Court was satisfied that although the will had effectively been signed before the provisions were written down, as the testator s name and the provisions of his will had been written in a single operation, this was sufficient evidence of the testator s intention that his signature should give effect to his will. The Court considered that the requirements of s.9 WA 1837 were satisfied. The same principles would appear to be apply to the signing of Jawad s will. However, the Court would require affidavit evidence of Jawad s intention from his attesting witnesses before admitting the will to probate. Although professionally drawn wills will include an attestation clause at the end of the will, s.9 WA 1837 does not require one. However, the inclusion of an attestation clause does raise a presumption that the will has been properly executed and that the will is valid subject to the other requirements of s.9 WA 1837 being met. As there is no formal attestation clause in Jawad s will, the Court will require an affidavit of due execution from one or both of the attesting witnesses in order to confirm that the requirements of s.9 WA 1837 have been met. Section 9 WA 1837 requires the testator s signature to be made or acknowledged by him in the presence of two or more witnesses present at the same time. In the case of Jawad, he has acknowledged his signature to each of his two witnesses, albeit it at separate times. In Casson v Dade (1781) the testator signed her will in the presence of two witnesses and then left the room and returned to her carriage. The witnesses took her will to the window where they signed it in better light and the window was in the direct line of sight from the carriage and the will had therefore been signed in the testator s presence. In the case of Brown v Skirrow (1902) the testator took her will into a shop for the purpose of signing it in the presence of two shop assistants. She signed it in the presence of one assistant, but the second assistant was busy serving a customer. After the first assistant had attested the will the testator asked the other assistance to attest it and in those circumstances the Court decided that the will was invalidly executed because at the time of signing the second assistant had not known was what was going on. It could be said that in Jawad s case neither of his witnesses had been told by him that they were being asked to witness his will. From the facts given, it is not known whether they appreciated the nature of the document that they were signing, although the contents of the will, given its brevity and the fact that it is on one page, is suggestive of the fact that they would be likely to know the purpose of the document. Both witnesses attested the will on the same occasion albeit at different times, and they were both present together at the same time in the room where the dinner was being held. Whether or not Jawad s will would be found to be validly executed would depend upon the Court being satisfied by means of affidavit evidence from Tahir and Ronald that the requirements of s.9 WA 1837 had been met. Assuming that the will of Jawad has been validly executed, before his estate can be administered, it would need to be determined who Jawad intended to appoint as his executor. As Jawad has requested his friend Tahir to pay his debts it would be implied according to the tenor of the will, that he intended Albert to act as his executor. An example of this is the case of In the Goods of Bayliss (1865), where a will directed that named persons were to pay the debts of the estate and Page 15 of 16