LEVEL 3 - UNIT 8 LAW OF WILLS AND SUCCESSION SUGGESTED ANSWERS - JUNE 2016 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 2016 examinations. 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. SECTION A 1. A person may validly change their will in a number of ways: this may be by executing a codicil for minor changes; executing a new will which revokes the existing will; or by executing a simple revocation of the existing will and relying on the intestacy provisions. (For the purposes of this question, candidates needed only to offer two suggestions). 2. Intention will not be presumed where the testator cannot read his own will. Additional steps will need to be taken to show knowledge and approval; for example the will being read over to the testator. It is also necessary to adapt the attestation clause accordingly. 3. There are a number of reasons why a person may appoint professional executors. For this question only two reasons were needed, and the following are some possible suggestions: He may have no friends or family to appoint; He may not wish to burden his friends or family with the office of executor; He may envisage family argument and so an independent third party as executor may help; He may have a particularly large or complex estate and feel that only a professional executor will be able to deal with it properly. 4. Ademption only applies to specific gifts. It occurs when the subject matter of the gift does not form part of the estate at the date of death. The result is that the beneficiary cannot receive the legacy. 5. Marriage or civil partnership revokes a will (section 18 Wills Act 1837), unless the will is made in expectation of it. Page 1 of 5
6. Partial intestacy arises when a portion of the estate has not been disposed of. This might occur where there is a will which either does not deal with all the residue, or a residuary gift fails completely (i.e. with no substitution either by will or statutory provision). 7. An administrator is appointed where there is either no executor appointed in a will, or he is unable or unwilling to act, or there is no will at all. 8. A grant of letters of administration with the will annexed is appropriate where there is a valid will, but there are no executors willing and able to act. 9. You would expect either one of the witnesses to the will to make the affidavit, or if unavailable, some other person present when the will was executed, or who could attest as to the testator s handwriting. 10. The surviving spouse standard under this Act is such financial provision as is reasonable in all the circumstances, whether or not it is required for the spouse s maintenance. 11. Having power reserved means the executor does not act as an executor under the original grant of probate, but he can apply to act as an executor at some point in the future should he wish. Page 2 of 5
Scenario 1 Questions SECTION B 1. Under section 18A Wills Act 1837, any gift to a former spouse passes, and any appointment of that spouse as executor takes effect, as if that spouse had died at the date of the decree absolute. So here, it is because Janice and Mick have divorced that Mick will receive nothing under the will and will not be able to act as executor. 2. (a) This area is governed by s.20 Wills Act 1837. The definition of revocation is by burning, tearing or otherwise destroying the will by the testator, or by someone in his presence and at his direction. There must also be an intention to revoke. (b) Although the will has been adequately destroyed as per s.20, this was not done by Janice or in her presence. Relevant case law would be Re De Kremer (1965) where a client telephoned with instructions to destroy a will. 3. (a) This is a demonstrative legacy which means it is a general gift paid out of a specific fund (but does not adeem like specific gifts). Here the money would have been paid out of the building society account. (b) However, s.15 Wills Act 1837 states that a witness cannot receive a gift from the will he witnesses and so this gift to Donald will fail. 4. The gift to Chantelle is a specific gift. Although she has predeceased her mother this will not lapse, because she is a child of the testatrix and so s.33 Wills Act 1837 applies and passes this gift to Chantelle s child, Benny. Geoff s pecuniary gift will lapse as he has predeceased Janice and is not her direct issue. His gift will fall back into residue. Scenario 2 Questions 1. (a) The formal requirements to make a will are contained in s.9 Wills Act 1837. This states that: The will must be in writing and signed by the testatrix; It must be signed or acknowledged by the testatrix in the joint presence of two witnesses; And then signed or acknowledged by both witnesses; In the presence of the testatrix (but not necessarily in each other s). (b) Here, the will is in writing and signed by Noreen. The facts tell us that both witnesses were present when Noreen signed the will. Troy has signed in Noreen s presence (and Gavin s), and Gavin has signed in Noreen s presence. The fact that Troy had left the room is irrelevant. There are a number of cases which could be used to illustrate how to execute a valid will, and which are relevant to each step, whether that centres around: it being in writing (Hodson v Barnes (1926) it Page 3 of 5
doesn t matter what it s written on); being signed by the Testator (Marley v Rawlings (2014) where two mirror wills were mixed up); what constitutes presence or both witnesses not being present throughout (Couser v Couser (1996)). There is no one case that covers all these facts as there is nothing contentious in this scenario. 2. The property Sunshine Villa passes to Mateo outright. This is because it was held by Noreen and Mateo as beneficial joint tenants. The property Casa Blanca was held with Joyce as beneficial tenants in common. This means that Joyce s half share is retained by her and the other half belonging to Noreen now forms part of her estate and will pass under her will to her beneficiary (i.e. Mateo). 3. Normally, under s.24 Wills Act 1837, the will speaks from death. However, the will speaks from the date of the will as to the object of the legacy i.e. the person to whom it is given. So in this case it is the gardener at the date of the will who is entitled to the gift; so Cyril takes the money. 4. Where an executor in a will survives the testator but dies before completing the administration of the estate, this office can be transferred to the deceased executor s own executor, provided one has been appointed and they are willing to take up their appointment. This is under s.7 Administration of Estates Act 1925 (AEA 1925) and is called a chain of representation. Here, Pauline may continue the administration of Kate s estate, but must accept office in both estates, or decline both. Scenario 3 Questions 1. (a) This estate will be dealt with under the rules of intestacy because there is no will, and so s.46 AEA 1925 governs distribution, as amended by Inheritance and Trustees Powers Act 2014. Because there is a surviving spouse (who has survived 28 days) and issue, Madge will receive the personal chattels, a statutory legacy of 250,000 and one half of the remainder outright. (b) The half not passing to Madge will pass to the children on the statutory trusts. This means that half of the estate will pass to them equally, provided that, if any have predeceased then to their children per stirpes on attaining 18, or marrying or entering into a civil partnership before then. So, Clive and Liam will receive one third each, and Tonya s children will receive the final third equally between them. 2. As spouse, Madge has special rights to apply to the personal representatives to appropriate the family home to her, in settlement of part of her interest in the estate. She must apply within 12 months of the grant being issued. Page 4 of 5
No consents are required of the other beneficiaries (s.41 appropriation will not work here, due to the family dispute). 3. (a) Madge may make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 within 6 months of the grant being issued. She falls within the category of spouse. (b) There are many factors the court could take into account. These might include the following: Madge s needs and resources and the needs and resources of the other beneficiaries note that Madge has little money of her own, is unlikely to be employable and has no income. Liam should be able to support himself and Clive may once he has recovered. The deceased s obligations towards Madge Kenneth managed the finances and made payments to Madge for housekeeping etc. The size and nature of the estate the estate is large and not tied up in business assets or joint property. Further guidelines the court may take into account on an application by a surviving spouse are: The age of the applicant and duration of the marriage Kenneth and Madge had been married for some time. Madge is not a young woman. Contribution made by the applicant to the welfare of the family as Madge has not been in paid employment during her lengthy marriage it could be assumed that she has occupied herself by looking after the family and has produced three children. Page 5 of 5