ESSENTIAL
SUCCESSION SEC OND EDITION SECOND
Cavendish Publishing Limited London • Sydney
Titles in the series: Company Law Constitutional Law Contract Law Criminal Law Employment Law English Legal System European Community Law Evidence Family Law GCSE Law Jurisprudence Land Law Medical Law Succession Tort Law Trusts
ESSENTIAL
SUCCESSION SEC OND EDITION SECOND
Andrew Iwobi, LLB, PhD Senior Lecturer in Law Swansea Law School
Cavendish Publishing Limited London • Sydney
Second
edition first published in Great Britain 2001 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email:
[email protected] Website: www.cavendishpublishing.com © Iwobi, A First edition Second edition
2001 1996 2001
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.
British Library Cataloguing in Publication Data Iwobi, Andrew Essential succession—2nd ed 1 Inheritance and succession—England 2 Inheritance and succession— Wales I Title 346.4'2'052 ISBN 1 85941 617 9 Printed and bound in Great Britain
Foreword This book is part of the Cavendish Essential series. The books in the series are designed to provide useful revision aids for the hard-pressed student. They are not, of course, intended to be substitutes for more detailed treatises. Other textbooks in the Cavendish portfolio must supply these gaps. Each book in the series follows a uniform format of a checklist of the areas covered in each chapter, followed by expanded treatment of ‘Essential’ issues looking at examination topics in depth. The team of authors bring a wealth of lecturing and examining experience to the task in hand. Many of us can even recall what it was like to face law examinations! Professor Nicholas Bourne AM General Editor, Essential Series Conservative Member for Mid and West Wales Spring 2001
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Contents Foreword
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1
Introduction to Wills The general nature of a will
1 1
2
Formalities for a Valid Will A brief history Is the imposition of statutory formalities justified? Reform of s 9 of the WA Incorporation of documents into duly executed wills Privileged wills
27 27 29 42 43 45
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Capacity and Intention to Make a Will Capacity Intention to make a will (animus testandi)
53 53 64
4
Revocation, Alteration, Revival and Republication of Wills Revocation Alteration of wills Revival of wills Republication of wills
79 79 95 101 104
5
Classification of Gifts in a Will and Failure of such Gifts Classes of gifts in a will Failure of gifts in a will
109 109 114
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Intestate Succession Introduction Issues surrounding the 1995 reforms Administration of the deceased’s property pending distribution Distribution where there is total intestacy Distribution where there is partial intestacy
139 139 140 142 144 157
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CONTENTS
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Provision for the Deceased’s Family and Dependants Introduction Time limit for applying under the IPFDA Jurisdiction under the IPFDA Persons who may apply Reasonable financial provision (rfp) Orders which the court may make
163 163 164 165 165 178 189
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The Administration of the Deceased’s Estate Executors and administrators Acceptance and renunciation Revocation of grants Payment of debts and liabilities Payment of debts and liabilities where the estate is solvent Payment of debts and liabilities where the estate is insolvent Distribution of the estate
195 195 209 210 214
Index
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217 221 223 233
1 Introduction to Wills You should be familiar with the following areas: • the nature and essential elements of a will • the contents of a typical will • the effect of a conditional will • the effect of contracts and promises to leave property by will and the bearing of the doctrines of mutual wills and proprietary estoppel on such contracts and promises • alternative methods of disposing of property on death
The general nature of a will Definitions
One of the fundamental features of the English law of succession is the right of the individual to give directions regarding the administration of his estate and disposition of his property when he dies. This right is ordinarily exercised by making a will. According to Sir JP Wilde in Lemage v Goodban (1865), ‘the will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing duly executed according to statute’. This definition has subsequently been adopted in other cases such as Re Berger (1989) and Re Finnemore (1991). Similar definitions can be found in various leading textbooks. One definition, in particular, has been judicially endorsed in such cases as Re Berger and Baird v Baird (1990). This is the definition in Jarman on Wills, which states that ‘a will is an instrument by which a person makes a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his lifetime’. To appreciate more fully the general nature and basic features of a will, it is instructive to dwell briefly on various aspects of these two definitions.
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(a) Testamentary intentions A person’s ‘testamentary intentions’ (see Lemage v Goodban) refers to his wishes and desires concerning the handling of his affairs in the period after his death. A person who embodies such intentions in a will is called a testator (or, if female, a testatrix). For the most part, the testator’s intentions relate to ‘the disposition of his property to take effect after his decease’ (see Jarman’s definition), but may also encompass various dimensions of his personal affairs. Although this is not explicitly stated in either definition, English law prescribes that whatever intentions are expressed by the testator must be the product of his free will and volition. Where this is not the case (for example, because the testator is of unsound mind or has been induced to make his will by fraudulent means, coercion or the exercise of undue influence), this is liable to render the will invalid. (b) The requirement of writing and the contents of wills Both the assertion in Lemage v Goodban that a testator’s intentions must be manifested in writing and Jarman’s reference to a will as an instrument, reflect the fact that, in English law, a will is not ordinarily enforceable unless the testator’s intentions have been expressed in a documentary form. Two points are particularly noteworthy in connection with the requirement of writing: (i) The writing may be embodied in more than one document—The sum total of the testator’s intentions is usually contained in a single document but it is not uncommon for a testator to employ two or more documents. For instance, after executing his will, a testator sometimes finds it necessary to alter its contents in some material respect and may, for this purpose, draw up a supplementary document called a codicil. It must however be stressed that in the strict legal sense a testator can only leave one will. Consequently, as was pointed out in Douglas-Menzies v Umphelby (1908), where a person’s testamentary wishes are set out in two or more documents, ‘it is the aggregate or the net result that constitutes his will’. (ii) The law does not prescribe the contents of the will—As seen from Jarman’s definition, the primary concern of a typical will is to dictate the manner in which the testator’s property is to devolve on his death. In addition, a testator may, if he wishes, use his will as a medium for: 2
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•
giving expression to his views on a variety of matters particularly the conduct of persons who would ordinarily be expected to benefit from his will (for interesting examples of this use of wills, see McConnell (1999) 149 NLJ 454);
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appointing executors and providing for their functions and remuneration;
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appointing guardians for the testator’s infant children;
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arranging for the payment of taxes, death duties and debts and the discharge of other obligations due from the testator;
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nominating beneficiaries under any testamentary power of appointment exercisable by the testator;
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making provision for the testator’s funeral and other matters relating to the disposal of his body.
Whatever directions a testator chooses to issue in his will, he is not obliged to employ any particular technical form of words. As Buckley LJ put it in Re Berger, ‘English law does not require a document which is intended to have testamentary effect to assume any particular form or to be couched in language technically appropriate to its testamentary character’. A will may therefore consist of a simple home-made document framed in familiar everyday terms. Thus, for example, a will which simply read ‘All for mother’ was recognised as valid in Thorn v Dickens (1906). As a matter of prudence, however, many testators prefer to execute wills prepared for them by solicitors who normally employ their drafting skills to good effect in expressing the intentions of such testators in appropriate legal terminology. The chief advantage a testator derives from retaining a solicitor to draft his will is the satisfaction that if there is some defect or deficiency in the process of preparing or executing the will or in its contents, this may render the solicitor liable on the grounds of professional negligence. On the one hand, as seen from the case of Corbett v Bond Pearce (2000), a solicitor may successfully be sued by a testator’s personal representatives for any loss occasioned to his estate such as costs incurred in responding to judicial challenges to the validity of the will. Similarly, a prospective beneficiary who is deprived of his entitlement under the will as a result of such a defect or deficiency, may sue the offending solicitor (or other professional will writer), as seen from the following cases: 3
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For a general idea of what a will drawn up by a solicitor would look like, it is useful to look at the specimen wills contained in various succession texts, for example, Borkowski (pp 57–58), Mellows (pp 687–88) and Parry and Clark (pp 165–70). As these specimens indicate, a well drafted will usually commences with a declaration that ‘This is the last will of …’ (or words to the same effect). However, even where an instrument is not declared to be a will, it will be treated as one if: •
it was executed in the manner prescribed by the WA (see below); and
•
its maker intended it to take effect only after his death.
The position in this regard is illustrated by the following cases:
(c) The requirement of due execution As well as emphasising the importance of writing in the willmaking process, Lemage v Goodban makes it clear that a document can only take effect as a will if it has been ‘duly executed according to statute’. As we shall see further in Chapter 2, this presupposes that unless the testator is privileged, he must observe certain formalities prescribed in s 9 of the WA. 5
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(d) The ambulatory nature of wills A basic characteristic of a will which is highlighted in Jarman’s definition is that it is ambulatory in nature. As Critchley explains in this connection in (1999) 115 LQR 631, p 636, this indicates that the will ‘rather than being effective immediately upon execution remains indefinite and ineffective…until the testator’s death at which point it operates for the first the first time upon the circumstances as at that date’. See, also, Countess of Berkeley v Berkeley (1946); Re Batty (1952); Re Cairnes (1982); Re Berger and Miller and Miller v Callender (1993). The ambulatory nature of wills has several significant implications. In particular: •
During the testator’s lifetime, the contents of the will are treated as mere declarations of intention, rather than immutable instructions. Accordingly, he is at liberty to dispose of his property inter vivos, notwithstanding that it has already been devised or bequeathed in his will.
•
For his part, a beneficiary to whom property has been left in the will cannot ordinarily restrain the testator from disposing of such property. His expected interest does not take effect until the testator’s death and is liable to lapse if he predeceases the testator.
•
Property belonging to the testator at his death is capable of devolving under his will even though he had not yet acquired it at the time the will was executed. For instance, if T makes a will devising ‘all my real property to B’ and T later buys some freehold land, which he retains till his death, this land will ordinarily form part of B’s inheritance under T’s will.
(e) The revocability of wills Closely allied to the principle that a will speaks only from death is the fact that it is, according to Jarman, revocable in the testator’s lifetime. Revocation may be total or partial. The four methods of revocation prescribed in the WA shall be dealt with in greater detail in Chapter 3. The power of revocation is so deeply entrenched that it has been established in Vynior’s Case (1609) that it is not extinguished even when the testator declares in his will that it is irrevocable. Equally, where a testator contracts not to revoke his will, cases such as Robinson v Ommanney (1882) establish that the other contracting party cannot prevent such revocation either by 6
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specific performance or injunction. However, as shall be seen in more detail in the next section: •
where the contracting testator later revokes the will, he may be liable in damages for breach of contract;
•
where the contract not to revoke was made in the context of mutual wills, the effect of revocation may be negatived by the imposition of a constructive trust on the revoking testator.
The effect of contracts and promises pertaining to wills
It is not uncommon for a property owner to enter into a contractual agreement or otherwise make a promise to the effect that on his death his entire estate or an asset forming part of his estate shall pass under his will to a particular beneficiary. Where such a testator or prospective testator (T) fails to fulfil this agreement or promise, an issue arises regarding the remedies available to the disappointed beneficiary (B). (a) Contractual remedies (1) Contracts to make wills Where T enters into an agreement with B in which he undertakes to make a will leaving property to B, there is a valid contract provided the agreement: •
is under seal or supported by consideration;
•
was intended to create legal relations: see Parker v Clarke (1960), where the relevant intention was found to exist. Contrast Taylor v Dickens (1997), where such an intention was held to be absent;
•
is in writing as stipulated by s 2 of the Law of Property (Miscellaneous Provisions) Act 1989, where the property to be left in the will is land: see Taylor v Dickens.
Where a contract of this nature arises, B may proceed against T for breach of contract in a variety of situations, most notably: (i) Where T fails to make a will at all: If B is aware of T’s failure, he cannot compel T to make a will. However, on T’s death, B will be entitled to claim damages out of T’s estate. Moreover, if T contracted to bequeath or devise a specific asset to B, it appears from cases like Re 7
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Edwards (1958) that B may be able to compel T’s personal representatives to transfer the asset to him. (ii) Where T makes a will but omits to leave the property to B as agreed: In such an event, B cannot compel T to revoke his will. However, B will be able to claim against T’s estate and for this purpose will be placed on the same footing as T’s other creditors. Thus, in Hammersley v De Biel (1845), there was an agreement between father and daughter that he would leave a specified sum to her in his will if she married a particular person. The marriage took place but the father’s will contained no such bequest. Held, the father’s estate was liable to pay this sum to the daughter. (iii) Where T makes a will leaving the property to B but later proceeds to revoke the will: Here, B cannot compel T not to revoke the will but in the event of such revocation may be entitled to recover damages from T’s estate. (iv) Where T contracts to leave specific property to B in his will but disposes of the property in his lifetime: If B has prior knowledge of T’s plan to dispose of the property, B may be able to prevent this by securing a declaration of right and an injunction against T: see Schaeffer v Schuman (1972). If B fails to intervene before T disposes of the property, he may nevertheless obtain damages from T for breach of contract, as happened in Synge v Synge (1894). Here, H promised to devise particular property to W for life if she consented to his marriage proposal. After they were married, H proceeded to transfer the property to a third party. W succeeded in her claim for damages against H. Significantly, the court also acknowledged (albeit per obiter) that where property is disposed of in these circumstances to a third party recipient (other than a bona fide purchaser for value without notice), the third party may be compelled to transfer the property to the beneficiary who should have received it under the will. Note, however: the position is different where T contracts to leave his entire estate (or a share thereof) to B. Under such a contract: •
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B’s entitlement relates to whatever is left at T’s death. Accordingly, if T subsequently proceeds to make inter vivos dispositions of any of his assets this will not constitute a breach of contract. T is however obliged not to make dispositions which though ostensibly inter vivos are deemed to have a testamentary effect: see, for example, Jones v Martin (1798) and Logan v Wienholt (1833);
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with regard to T’s assets which he did not dispose of in his lifetime, the contract to leave his entire estate (or a share thereof) to B, will not avail B against T’s creditors who will be entitled to be paid the amounts due to them out of these assets in priority to B: see Bennett v Houldsworth (1877).
(2) Contracts not to revoke wills If T, having made a will, contracts with a beneficiary, B, not to revoke it, the inherent revocability of wills means that B has no legal means of compelling T to refrain from revoking the will. However, it emerges from cases like Robinson v Ommanney that a breach of contract will occur if T intentionally revokes the will which renders T (or his estate) liable to pay damages for breach of contract. On the other hand, if the will is automatically revoked by T’s subsequent marriage, it has been decided in Re Marsland that this will not constitute a breach of T’s contract not to revoke the will. (b) Mutual wills and the imposition of constructive trusts In one specific context, equity is prepared to intervene to circumscribe a testator’s power to revoke his will. This is where two (or more) testators have (i) come to an agreement that on the death of each, his or her property shall devolve in a particular manner, and (ii) have executed a joint will or individual wills intended to give effect to the agreement. Wills executed in such circumstances are known as mutual wills. They are commonly framed in terms which are identical or substantially the same, with each party leaving property in the first instance to the other party and thereafter to the same ultimate beneficiaries. Such wills may be executed by any two persons, but are most often utilised by spouses to give effect to their desire as parents that when they both die their property shall pass to the children of their marriage. The will(s) may provide: •
that property belonging to each spouse shall pass to the other for life, remainder to their children (or other beneficiaries), as in Gray v Perpetual Trustee Co Ltd (1928) and Re Hagger (1930);
•
that property belonging to each spouse shall pass to the other spouse absolutely with a substitutionary provision to the effect that if the other spouse dies first, the property shall devolve on their children, as in Re Cleaver (1981); 9
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that on the death of each spouse, his or her property will pass to the children without any interest going in the first instance to the other spouse, as in Re Dale (1993).
As long as both spouses adhere to their initial agreement and neither attempts to revoke his or her will, their issue will become entitled to the property of both on the survivor’s death. Where the problem arises is if either spouse has a change of mind after the execution of the wills and no longer wishes his or her property to devolve in the agreed manner. Where the other spouse is still alive If, for instance, the wife (W) unilaterally decides during the lifetime of her husband (H) that she no longer wants to go along with the agreement, it is open to her to revoke her will, but she must notify H. See Dufour v Pereira (1769) and Stone v Hoskins (1905). Neither H nor their children as ultimate beneficiaries can prevent such revocation, though H may claim damages for breach of contract. It emerges from Stone v Hoskins that where either H or W unilaterally revoke their respective wills, this relieves the other spouse from liability under the agreement, thus enabling that spouse to revoke his or her own will and make a new one. By the same token, it has recently been held in Re Hobley (1997) that where either spouse unilaterally alters their will in the other spouse’s lifetime, the other spouse thereby becomes entitled to revoke their will and make a new one. Where the other spouse is dead If W takes no steps in H’s lifetime to revoke her will and H for his part dies without revoking his will, W may thereafter revoke her will or it may automatically be revoked on her marriage (as happened in Goodchild v Goodchild (1995), for instance). In such an event, the children of the marriage, not being parties to the agreement, will be unable to pursue a claim founded on contract. Equity is, however, prepared to intervene on the premise that it would be fraudulent for W to revoke her will, given that H, who made his will pursuant to the agreement with W, can no longer revoke his as he is dead. In this connection, rather than compel W not to revoke her will, equity prefers instead to give effect to the agreement in favour of the children of the marriage by imposing a constructive trust on W’s personal representative. In other words, as Kerridge has pointed out in 10
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Parry and Clark’s Succession text, ‘equity frustrates but does not prevent the unconscionable revocation of a mutual will’. The willingness of the courts to impose a constructive trust on the surviving testator dates back to the decision of Lord Camden LC in Dufour v Pereira. In a host of cases decided since then, the courts have been called upon to resolve a variety of issues concerning the nature and operation of this species of constructive trust Issue 1: What is the effect of executing identical wills without an accompanying agreement not to revoke? The fact that H and W (or any other two parties) have executed their wills in identical terms does not in itself signify that these are mutual wills under which the survivor will be regarded as a constructive trustee. On the contrary, the cases establish that in order for a constructive trust to be imposed on the survivor, the wills must have been executed pursuant to an agreement between the parties that neither of them would revoke their wills and that they intended this agreement to be binding. Thus, for instance, in Re Oldham (1925), H and W executed wills in identical terms on the same day, each leaving their estate to the other spouse with a substitutionary provision in favour of the same persons if the other spouse died first. H died before W, whereupon W made a new will in entirely different terms. The court found no evidence that H and W had executed their wills pursuant to the requisite agreement and held that these were not mutual wills which would warrant the imposition of a constructive trust on W. As Astbury J was at pains to point out in this regard, ‘the fact that the two wills were made in identical terms [did] not necessarily connote an agreement beyond that of so making them’. Issue 2: When does the constructive trust come into operation? There has been some debate in academic and judicial circles as to whether the constructive trust takes effect: •
at the time the mutual wills were executed;
•
on the death of the first of the two testators to die;
•
when the surviving testator accepted the benefits due to them under the will of the first testator to die;
•
on the death of the surviving testator.
It has ultimately been judicially established that the trust takes effect when the first testator dies. In Re Hagger, for instance, H and W executed a joint will pursuant to an agreement between them that each would leave their property to the other for life, 11
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remainder to the same beneficiaries (including E). W died first, E died next and H died last. At H’s death, the court had to decide whether E had on W’s death become entitled to a share of the remainder or whether her share was supposed to come into effect only upon H’s death (in which case it would lapse, since E had died before H). This in turn depended on whether a constructive trust had arisen on the death of W or on the subsequent death of H. The court concluded that the trust had arisen on W’s death and accordingly held that E’s interest had become vested at that date and did not lapse simply because E predeceased H. The case of Re Green (1951) is also relevant in the present connection. Here, H and W had executed mutual wills, which provided that the surviving spouse was to inherit the estate of the one to die first, and stipulated that the survivor would leave half of their estate to mutually agreed beneficiaries. W died first; H remarried and thereafter made a fresh will in different terms. If there had been a simple agreement between H and W (not made in the context of mutual will), to the effect that H would not revoke his will, the principle in Re Marsland (see p 9 above) would have meant that the automatic revocation caused by H’s remarriage would not have rendered H or his estate liable for breach of contract. The court, however, held that since H and W’s agreement had given rise to mutual wills, a constructive trust came into being as soon as W died which was not extinguished by H’s subsequent remarriage. See, further, the Working Paper by Hughes on Mutual Wills and Contracts not to revoke, published in the Journal of South Pacific Law. Issue 3: To what property does the constructive trust relate? Where H and W execute mutual wills and one of them dies without having revoked his or her will, difficulties may arise regarding the extent of the property which the surviving spouse will be required to hold on constructive trust for the ultimate beneficiaries. Assuming, for instance, that H and W execute mutual wills and H dies first, the courts may have to resolve whether the constructive trust imposed on W as the surviving testatrix will extend to: •
whatever property (if any) she inherited under H’s will;
•
that part of W’s estate which did not devolve upon her under H’s will.
The basic premise on which the courts proceed, as Dixon J pointed out in Birmingham v Renfrew (1937), is that the property 12
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to which the constructive trust is affixed is dictated by the substance of the agreement between H and W as manifested in the terms of the mutual wills. In Re Green (1951), for instance, the agreement between H and W specified that the survivor was to divide half of their estate among mutually agreed beneficiaries. H survived W and the court held that the constructive trust, which arose here, would extend to half of his estate. In the Re Hagger-type mutual will under which each spouse confers a life interest in his or her estate on the other with remainder to mutually agreed beneficiaries, when the first spouse dies, the position will be as follows: •
the constructive trust will not apply to the life interest conferred under the will of the spouse who died first on the surviving spouse who takes this life interest beneficially;
•
moreover, there will be no constructive trust of the remainder interest in the estate of the spouse to die first. Rather this interest will normally be the subject of an express trust in favour of the mutually agreed beneficiaries;
•
it is only the estate of the surviving spouse that will be the subject of the constructive trust.
Alternatively, under the terms of their mutual wills, H and W may leave their respective estates absolutely to whichever spouse survives, with a substitutionary provision in favour of mutually agreed beneficiaries. It can be deduced from cases such as Birmingham v Renfrew and Re Cleaver that a constructive trust will be imposed on the combined estate comprising the survivor’s own assets and those assets he or she inherited from the first spouse to die. However, as Dixon J made clear in Birmingham, the constructive trust as thus conceived is in essence a floating one, suspended during the survivor’s lifetime and crystallising on his or her death when it attaches to whatever remains of the combined estate. Significantly, however, there is a distinct possibility that the mutually agreed beneficiaries may ultimately be left with nothing upon the crystallisation of the trust, for, as Dixon J pointed out, it is open to ‘the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying…so that, for instance, he may convert it and expend the proceeds as he wishes’. This was re-affirmed by Nourse LJ in Re Cleaver. Nourse LJ also signified that it is open to the survivor to make ‘ordinary gifts of small value’ out of the combined estate, but the survivor may not make large voluntary donations of the 13
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type intended to defeat the agreement upon which the mutual wills were founded. Issue 4: Can the constructive trust arise where the survivor receives no benefit from the estate of the testator who died first? In almost every case in which the courts have had to deal with mutual wills, provision has been made in the will of H and W for his or her estate or some benefit therefrom to devolve on the other spouse if the latter is the survivor. This was not the case, however in Re Dale. In this case, H and W executed wills in 1988 under which they each left their respective estates to their son and daughter equally with no provision being made for the surviving spouse. H died later that year. In 1990, W made another will leaving £300 to the daughter and the rest of her estate to the son. The issue that arose when W died was whether on H’s earlier death, W had become a constructive trustee despite the fact that she had received no benefit from H’s estate. If she had, her personal representatives would be bound to give effect to the terms of her original mutual will. Morrit J, having carefully reviewed most of the earlier decisions, held that such a constructive trust had arisen in the present circumstances irrespective of W not having benefited from H’s will. Conclusion In view of the difficult issues surrounding the enforcement of mutual wills, various commentators have vigorously argued against their use by testators. Thus, for instance, Borkowski states in his Law of Succession (p 50) that: ‘There are several pitfalls about the operation of the mutual wills doctrine which render it generally inadvisable for testators to make mutual wills.’ He goes on to point out that there may be difficulties in determining the property which is subject to the trust; the precise nature of the duties imposed on the survivor under the constructive trust and the extent to which the survivor can make inter vivos dispositions out of the trust estate. Most tellingly, Borkowski alludes to the difficulty which arises from the fact that under the mutual wills doctrine, ‘the imposition of the constructive trust may prove a serious restriction on the survivor, who may find the whole or a substantial part of his property is shackled thereby’. Concerns have also been voiced by Martin in Hanbury and Martin’s Modern Equity, where she declares that It is clear that the imposition of a trust in cases of mutual wills is a clumsy and inadequate way of dealing with a complicated problem…[P]ersons who wish to leave property by way of mutual wills should be advised to consider most carefully the 14
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trusts on which they wish the property to be held; what property is to be included; the position during the survivor’s lifetime [and] what administrative powers the trustee should have… Merely to draft mutual wills and leave the law to sort out such a host of problems is no service to the testator’. (c) Proprietary estoppel Where a person promises to leave property in his or her will to another person in circumstances which do not give rise to a legally binding agreement between them, the promisee will not be entitled to pursue any contractual remedies against the promisor or his personal representatives if the promise is not fulfilled. The doctrine of proprietary estoppel may, however, afford a basis for giving effect to such a promise. The operation of this doctrine is evident in a wide range of situations. The key attributes of such situations are that: •
one party (A) by his words or conduct;
•
represents to another party (B) that B already has or is going to be given;
•
a right or interest in A’s property;
•
thereby encouraging B to act to his detriment on the strength of this representation.
Where the doctrine applies, A will be prevented (or estopped) from asserting his strict legal rights to the property to the prejudice of B and the court will make whatever order it considers appropriate to safeguard B’s expectation that he has or will be given a right or interest in the property. The doctrine was successfully invoked, for instance, in Re Basham (1987), where a stepfather (A) had repeatedly told his stepdaughter (B) over a long period that he would leave his cottage to her when he died and created the impression that his entire estate would pass to her on his death. B for her part helped A manage his businesses for many years without being paid, cared devotedly for A during this period and expended her own money on repairs to the cottage. A eventually died intestate and a dispute arose between B and his next of kin as to who was entitled to his estate. The court found that B had a reasonable belief that she would inherit A’s estate, that this belief had been encouraged by A and that this had induced B to act to her detriment. A’s personal representatives were therefore estopped from denying 15
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B’s entitlement and were accordingly ordered to transfer the estate to B in preference to A’s next of kin. There was a similar outcome in Wayling v Jones (1995). In this case, A and B were homosexual partners who had lived together for 16 years. For several years before A died, he had repeatedly promised that on his death, a hotel that he owned would pass to B, and in due course A made a will to this effect. For his part, B assisted A in his hotel business and as A’s chauffeur and companion. B was not paid for these services, although A gave him pocket money and was responsible for his maintenance. A later sold the hotel and bought another property with the proceeds, but failed to alter his will to reflect this fact. After A’s death, B sought to claim the new property from A’s personal representatives relying on proprietary estoppel. B’s claim was dismissed by the trial court, which held that there was no evidence that B had relied to his detriment on A’s promise to leave property to him. On appeal, however, the Court of Appeal found a link between A’s promise and B’s willingness to serve A for so long in return for minimal remuneration, which in the court’s view, amounted to sufficient detrimental reliance on B’s part. A’s personal representatives were therefore estopped from denying B’s entitlement to the property and were ordered by the court to transfer it to B. A claim founded on promissory estoppel was, however, rejected in Taylor v Dickens, where A, an elderly widow had retained the services of B as a part time gardener and general handyman. After B had been working for A for 14 years, she informed him that she would leave her house to him in her will. B was suitably gratified and signified that he would no longer charge A for any work he did for her. Thereafter, B began to perform many more tasks for A than an ordinary gardener and served her faithfully until she died seven years later. A in due course executed a will in which she left her residuary estate (including the house) to B. A few months before she died, A altered her will leaving the residue of her estate to C, without informing B of this fact. B brought the present action, claiming that he was entitled to the residue of A’s estate, relying inter alia on the doctrine of proprietary estoppel. Judge Weekes, who heard the case, rejected B’s plea of estoppel on two main grounds: (i) While there was no doubt that A had promised to leave her residuary estate to B, and although it might be unfair for 16
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her to go back on this promise, the doctrine of estoppel did not confer on the court a general equitable jurisdiction to hold a person to their promise to do something in future just because it would be unfair, unconscionable or morally objectionable not to carry out the promise. (ii) Whereas in both Re Basham and Wayling v Jones, A had promised to leave property to B but omitted to make a will giving effect to this promise, in the present case, A having promised to leave property to B, duly made a will to this effect. Accordingly, in order for estoppel to avail B, he had to prove not only that A had promised to make a will in his favour, but also that A had created or encouraged a belief on B’s part that, having made the will, she would not change her mind and revoke it. B was well aware that wills were revocable and that A could change her mind and there was no credible evidence that A had ever encouraged B to believe that she would never change her will or to act on this belief. There was therefore no basis to sustain B’s claim, founded as it was on proprietary estoppel. (Note, however, the criticisms advanced against this aspect of the Taylor judgment by academic commentators such as Douglas [1998] FLR 191–93 and Thompson [1998] 210 Conv 210, as well as by Carnwarth J and Walker LJ in the subsequent case of Gillett v Holt (1998 Ch D; 2000 CA.) In the Gillett case, A, a prosperous farmer had struck up a friendship with B when B was a schoolboy. B started working on A’s farm in 1956 and A came to regard him as a member of his family. In 1964, at a harvest dinner, A announced that he intended on his death to leave his farming business to B. A subsequently re-affirmed this intention several times, especially during family occasions. In the meantime, B, with A’s encouragement, began to assume increasing responsibility for running the farm while receiving a lower salary than he would ordinarily have been earning for the type of work he was doing. In 1986, A carried his promise into effect by making a will in which he left the bulk of his estate to B and confirmed it in a 1991 codicil. In 1992, however, A became very friendly with C, which caused a rift between A and B. In 1994, A executed a fresh will in which C replaced B as the principal beneficiary and which in its final form left nothing to B. This led to a further deterioration in the relationship between A and B which culminated in B’s dismissal from his position as A’s farm manager. In the ensuing action, B claimed that A’s repeated assurances had induced him to devote his entire 17
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working life to A’s service, and so A was estopped from bequeathing his estate in a manner which would deprive B of his promised entitlement. In his judgment, Carnwarth J: (i) found from reviewing the evidence that A had undoubtedly intended to leave the bulk of his estate to B, had made this intention known to B on several occasions and had reflected this intention in his earlier wills; (ii) insisted, however, that for a claim founded on proprietary estoppel to succeed, B had to show that A’s assurances to him went beyond mere statements of intention and constituted an irrevocable promise that B would still inherit irrespective of any change in circumstances; (iii) was unable to discern from A’s words/conduct anything which could reasonably be construed or which B did in fact construe as such an irrevocable promise. This being the case, B’s plea of proprietary estoppel could not be upheld; (iv) went further to hold that B’s claim would also have failed, since he had not established that he had suffered sufficient detriment in reliance on A’s assurances to sustain his plea of estoppel. However, this decision of Carnwarth J was reversed on appeal. Walker LJ, who delivered the lead judgment in the Court of Appeal, observed that A’s assurances to B had been repeated over a long period, usually on important family occasions, and several of these assurances were completely unambiguous. He disputed Carnwarth J’s central premise that these assurances were incapable of sustaining B’s plea of proprietary estoppel. In particular, Walker LJ felt that Carnwarth J had misdirected himself when he concluded that A’s assurances disclosed no irrevocable promise that B would inherit regardless of any changes in circumstances. As Walker LJ explained, even though A did not expressly affirm that his assurances were irrevocable, if it could be shown that B had relied on these assurances to his detriment, this would render A’s promise irrevocable. Walker LJ also differed from the conclusion of Carnwarth J on the issue of whether B had suffered sufficient detriment in reliance on A’s assurance. Apart from the comparatively low level of remuneration accepted by B, the evidence disclosed that in reliance on A’s assurances, B had:
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•
not sought or accepted offers of employment elsewhere;
•
carried out tasks and devoted himself to the farming business beyond the normal scope of an employee;
•
taken no substantial steps to secure his future through larger pension contributions or otherwise;
•
incurred substantial personal expenses in repairing and maintaining farm property.
On the basis of this evidence, Walker LJ concluded that B’s case on detriment was an unusually compelling one and that detriment had been amply demonstrated. He therefore allowed B’s appeal and ordered A to transfer one of the houses on the farm, some farmland and the sum of £100,000 to B. This decision has been warmly endorsed by Thomson in [2001] Conv 78. After exhaustively commenting on the Court of Appeal’s judgment, Thompson concludes that ‘it shows the flexibility of the doctrine of equitable estoppel; a flexibility which is desirable, given that most of the disputes which involve estoppel arise in informal factual situations where to seek to impose rigid requirements may defeat the purpose of the doctrine’. This may, however, be contrasted with the less complimentary tone adopted by Wells in the same journal. In her article entitled ‘The element of detriment in proprietary estoppel’ [2001] Conv 13, Wells concentrates on assessing the various headings under which the claimant in Gillett was found by the Court of Appeal to have suffered detriment. On the basis of her analysis, Wells agreed that, all things considered, the claimant’s plea of proprietary estoppel clearly deserved to succeed. In her view, however, the principles relating to detriment were not clarified by the decision and the requirement for detriment has now become unnecessarily confused and complicated because the Court of Appeal did not fully explore the full implications of its decision. (d) Conditional wills What is a conditional will? An ordinary will comes into operation as soon as the testator dies. Occasionally, however, a testator expresses his will to be conditional upon his dying in particular circumstances or conditional upon the occurrence of some other specified event. A will of this nature is known as a conditional will. Where a will is framed in such terms, it will not come into operation on the testator’s death unless the condition has been fulfilled or the event has duly occurred. 19
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Examples of cases in which testators have been held by to have made conditional wills include: •
Re Thomas (1939), where the will was qualified by a codicil which stated that, ‘If I survive my wife and inherit under her will…etc’;
•
In the Goods of Robinson (1870), where the will began with the words ‘In case anything should happen to me during the remainder of the journey’; and
•
Lindsay v Lindsay (1872), where the material phrase was ‘If I should die at sea or abroad’.
Situations in which testator’s reference to some future event does not give rise to conditional will •
It sometimes happens that a will refers to a future event which may or may not occur not as a condition to be fulfilled before the will can take effect, but merely to explain the reason why the will was made. The courts have held in cases like In the Goods of Dobson (1866) and Re Vines (1910) that where the reference to a future event is construed in this manner, the will takes effect on the testator’s death even if the envisaged event does not occur. In Dobson, for example, the will commenced with the words ‘In case of any fatal accident happening to me, being about to travel by railway, I hereby leave…’. The testator returned safely from the journey, but the will was nevertheless held to be valid, as it was not intended to be conditional on the testator surviving the journey.
•
Moreover, even where the wording employed by the testator is such that the will would ordinarily be construed as conditional, the court may nevertheless deduce from the surrounding circumstances that the testator did not, in fact, intend it to be a conditional will. This is illustrated by In The Goods of Cawthorn (1863), where the testator commenced his will with the words In the prospect of a long journey, should God not permit me to return home I…make this my last will’. The will was drawn up before the journey, but was not executed until several months after the testator’s return. The court therefore concluded that at the point of its execution, the testator could not have intended the will to be conditional upon a journey that had already taken place.
Is extrinsic evidence admissible to prove intention to make a conditional will? A particular issue which has come before the courts in recent 20
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times is whether extrinsic evidence can be relied on to prove that a testator intended his will to be conditional, where the material condition is not referred to in the will itself. This issue was raised in Corbett v Newey (1994), where T made a will in February 1989, in which she left two farms to her nephew, W, and her niece, S, and also left her residuary estate to them in equal shares. A few months later, T decided to make inter vivos gifts of the farms to W and S and to make a new will which would take account of these gifts by leaving the residue, not to W and S, but to her great-nephews, J1 and J2. A new will was prepared according to T’s instructions. Arrangements for the transfer of the farms to W and S, however, ran into difficulties. In view of these difficulties, T, when executing the new will prepared for her in September 1989, left it undated and instructed her solicitors to date the will only when the transfers to W and S went through. The conveyances were finally made in December 1989 and the solicitor informed T in writing that he had now dated the will, but T did not sign the will again thereafter. W challenged the validity of the new will, claiming that the fact that T had not dated the will when executing it in September meant that she did not at that point have the required testamentary intention that the will should take effect immediately on her death. Rejecting this claim, the trial judge held that T had not dated the will simply because she intended it to take effect on the condition that the transfers to W and S went through and it did not matter that this condition was not set out in the will. As the condition had been fulfilled, the will in his view was valid. W’s appeal against the trial court’s decision was upheld. In so doing, the Court of Appeal held that: (i) the new will could not take effect as an ordinary unconditional will, since the evidence suggested that this was not what T had intended when she executed this will. On the contrary, she clearly regarded the transfer of the farms to W and S and the making of the new will as interrelated transactions and it appeared from the evidence that she intended the will to be conditional on the effective inter vivos transfer of the farms; (ii) despite the fact that the evidence suggested that the testatrix intended the new will to be conditional on the transfer of the farms, it could not be treated as a valid conditional will, since the relevant condition did not appear on the face of the will. (For a more detailed commentary of this case, see Roe’s article in (1997) 127 NLJ 128–29.) 21
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Devolution of property by means other than wills
In a variety of circumstances, property may devolve on the death of its owner without having been disposed of under his will. The most significant methods of dictating the manner in which property is to devolve on death without having to make a will are as follows: (a) Revocable inter vivos dispositions English law generally maintains a clear cut distinction between inter vivos dispositions of property and dispositions made by will. The most significant differences between the two types of dispositions are that: •
the formal requirements for will making are not the same as those for an inter vivos disposition;
•
a will ordinarily comes into effect on T’s death while an inter vivos disposition takes effect in the lifetime of the party who makes the disposition.
In spite of these differences, some scope exists for a property owner (O) who wants to enjoy his property in his lifetime and then leave it to another person (B) to achieve this outcome by means of an inter vivos disposition rather than a will. All that this requires is for O to transfer the property to trustees under an inter vivos settlement, which requires the trustees to hold the property on trust for O for life, remainder to B, while making sure to that under the terms of the trust, O is invested with the power to revoke T’s gift. (b) Survivorship under joint tenancies Where two parties agree that whichever one of them dies first, his property will pass to the other, the usual course is for them to execute mutual wills to this effect. A similar result may, however, be achieved where both parties arrange for the property in question to be held by them as joint tenants. If either party dies while the joint tenancy is subsisting, the property will automatically devolve on the other party under the right of survivorship (jus accrescendi). (c) Benefits payable under life insurance policy A person who wishes to provide for others after his death may also do so by means of an insurance policy, as happened, for instance, in Foskett v McKeown (2000). Under such a policy, the insurer, in return for payments made by the policyholder (namely, the person taking 22
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out the policy) undertakes to pay an agreed sum to beneficiaries specified in the policy, on the policyholder’s death. Where the beneficiaries are the policyholder’s spouse/ children, s 11 of the Married Women’s Property Act (MWPA) 1882 requires the sum assured to be held on trust by the insurer so that it passes directly to the beneficiaries on the policyholder’s death and does not become part of his estate. See Re S (Decd) (1995). For a detailed examination of this statutory provision, see Hamsworth’s article ‘Life assurance and the cohabitant’ [1998] 57 CLJ 55. In the case of beneficiaries other than spouses and children, the same end may be achieved where the policyholder expressly assigns his legal and equitable interest to the insurer to hold on trust for the intended beneficiaries. (d) Nominations A person who is entitled to funds or assets that are in the hands of another party may specify in his will that on his death, such funds or assets are to be paid to a particular beneficiary. In certain instances, the same object may be achieved by means of a nomination. This is a written direction by a person on whose behalf certain types of funds or assets are held (the nominator) to the person holding such funds to pay the funds to some other person (the nominee). As explained by Lord Mersey in Eccles Provident Industrial Co-op Society v Griffiths (1912), the primary purpose of such nominations was to allow persons with modest funds held on their behalf by certain bodies to dispose of them on death without going through the trouble and expense of making a will. A nomination may be statutory or non-statutory. Statutory—These are expressly provided for by various statutes and include nominations by: •
trade union members of union benefits due to them;
•
investors in Friendly/Provident Societies and the Trustee Savings Bank (who can make nominations up to a £5,000 limit);
•
savers with the National Savings Bank/investors in National Savings Certificates, (who are not subject to a corresponding limit regarding the amount they can nominate, but whose nominations must have been made before May 1981). 23
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Non-Statutory—Such nominations are usually made in the context of contributory pension schemes. The rules of such schemes usually provide that if a member dies before his retirement, certain benefits shall be paid to persons nominated by him. This was the case for instance in Re Danish Bacon Co Ltd (1971), where an employee had the right to nominate a person to receive benefits under a company pension scheme if he died before qualifying for his pension. He initially completed the appropriate form that was duly signed and witnessed, nominating his wife, but later wrote to the company changing the nomination. On his death, it was contended that the later nomination was of no effect, since it had not been executed in the manner prescribed by the WA. It was held that the employee acquired an equitable interest under the pension fund trust deed and the nomination was in essence an inter vivos contractual arrangement disposing of the equitable interest and not a testamentary disposition which had to made by will in order to be valid. See, also, Baird v Baird (1990). Comparison between nominations and wills—Statutory nominations resemble wills in being ambulatory. This means that, like wills, they do not take effect until the death of the nominator and he can accordingly dispose of the assets or revoke the nomination in his lifetime. Nominations do, however, differ from wills in several respects, namely: •
nominations can be made by persons over 16, while a will is valid only if T has attained majority (s 7 of the WA);
•
the formalities which must be observed in making a nomination are determined not by the WA, but by the relevant statutory provisions or pension scheme rules, as the case may be;
•
where a nominator has also made a will, funds that are subject to a nomination do not form part of the estate that passes under his will;
•
as a corollary to this, a nomination is not revocable by a subsequent will or codicil, but only by a later nomination.
(e) Donatio mortis causa (DMC) A DMC is a gift made in the donor’s lifetime, which is expressed to be conditional upon and intended to take effect on his death. It is neither an inter vivos gift in the proper sense, nor is it a fully fledged testamentary gift: see Re Beaumont (1902). Three conditions must exist in order for a valid DMC to arise. As outlined by Nourse LJ in Sen v Headley, these conditions are as follows: 24
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(1) Gift must be in contemplation of donor’s impending death (see Re Craven’s Estate (1937)) Points to consider: •
Is there a valid DMC where the donor dies from a cause other than the one contemplated? See Wilkes v Allington (1931) (which established that the DMC would still be valid).
•
Is there a valid DMC where the donor’s perceived cause of death ‘exists only in his fancy or imagination’? See Thompson v Mechan (1958), where a donor who was terrified of flying made a gift of property to take effect if he did not survive the journey. Held, the donor’s irrational fear of flying was not the type of contemplation of death that would give rise to a valid DMC. Contrast Re Miller (1961).
•
Is there a valid DMC where the contemplated event is the donor’s suicide? In Re Dudman (1925), it was held that as a matter of policy there would not be a valid DMC where a donor made a gift in contemplation of his suicide and later committed suicide.
(2) Gift must be made conditional upon death The gift must be made upon the condition that it becomes absolute and perfected only on the donor’s death and remains revocable and ineffective until then. This means in particular that: •
there is no valid DMC if the donor’s intention is to make an immediate inter vivos gift;
•
if the contemplated death, which constitutes the material condition, does not occur, the property reverts to the donor.
(3) The subject matter must be delivered to the donee The donor must deliver the subject matter of the gift to the donee with the requisite intention to make a gift. In this connection: •
the act of delivery must be in the donor’s lifetime—see Bunn v Markham (1816);
•
the delivery must be of the property which constitutes the subject matter of the gift or of the means of gaining control of such property. For example:
passbook; deposit books to donor’s bank accounts; Cain v Moon (1896); Birch v Treasury Solicitor (1951); 25
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keys to safe containing the property. See Re Lillingston (1952); Re Mustapha (1891);
keys to strongbox containing title deeds to house. See Sen v Headley (1991).
Note: the suggestion in Re Craven that retention of a spare key by the donor after having given the key to the donee would not constitute effective delivery. Contrast, however, with Woodard v Woodard (1995), where it was held that there was sufficient delivery, even though the donor had retained a set of keys to the car which constituted the subject matter of the gift. Effect of a DMC on T’s death. This will depend on the nature of the property in question:
26
•
Where the subject matter of a DMC is a chattel which has been delivered to the donee (or he has been given the means of gaining access to it), the property passes directly to the donee on the donor’s death; see, for example, Re Lillingston (1952), where the property was jewellery, and Woodard v Woodard (1995), which involved a car.
•
Where the subject matter of a DMC is property, which cannot be transferred by mere delivery (for example, land), legal title passes on the donor’s death to his personal representative and not the donee. Equity will, however, compel the personal representative to vest the property in the donee despite the fact that the gift was not by will. See, for example, Sen v Headley (1991).
2 Formalities for a Valid Will You should be familiar with the following areas: •
the statutory formalities governing due execution of a will
•
the incorporation by reference of unexecuted documents into a duly executed will
•
the exemption of privileged wills from the requirement of due execution
A brief history Since 1540, when the Statute of Wills first allowed testamentary dispositions of real property (land), wills have been required to be in writing. Further formal requirements were introduced by the Statute of Frauds 1677, which provided that the document also had to be signed by the testator (or some person in his presence and at his direction) and attested by at least three witnesses. These statutes did not require writing for wills of personalty, that is to say property other than land. However, in cases where the personalty exceeded £30 in value, the Statute of Frauds provided that a nuncupative (that is to say, oral) will would be valid only if made during the illness leading to the testator’s death, in a house where he had lived for the last 10 days of his life and was witnessed by three persons. The will also had to be proved within six months of the testator’s death, unless it was written down within six days after it was made. The formal requirements for the execution of wills were rendered more precise and uniform with the enactment of s 9 of the Wills Act (WA) 1837. This section continued in force in its original form until 1982 when it was eventually repealed by s 17 of the Administration of Justice Act (AJA) 1982 and replaced by an amended s 9. Even up till the present day, the original s 9 continues to apply to the wills of testators who died before 1 January 1982, while the amended s 9 governs the wills of testators dying after 31 December 1982. 27
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Both the original s 9 and the amended s 9 require wills to be in writing and properly witnessed but their detailed provisions are different in certain material respects, as illustrated in the following comparative table of their key features:
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Is the imposition of statutory formalities justified? It might legitimately be asked whether there are sufficiently good grounds for putting a testator through the trouble (and often the expense) of fulfilling the onerous requirements of s 9 when all he wishes to do is to arrange for the transmission of his property on death. In answer to this, it is widely (though by no means universally) accepted, in legal circles at least, that rules governing testamentary formalities serve a number of useful functions and confer accompanying benefits on testators. It is felt that, on balance, these benefits outweigh the inconvenience to testators and other disadvantages associated with the operation of these rules. The most important of these functions have been outlined by Langbein in an often quoted article published in [1975] 88 Harv L Rev 489. According to him, the formalities have: •
an evidentiary function—writing ensures that evidence of testamentary intention is cast in in reliable and permanent form. Signing is evidence of genuineness and the probative value of wills is reinforced by the presence of witnesses;
•
a channelling function in that it standardises the procedure to be followed in a sphere of legal activity in which a degree of uniformity is preferable to a free-for-all approach;
•
a cautionary function in that it impresses on the testator the importance of what he is doing and encourages careful deliberation on the manner in which his property is to devolve on his death;
•
a protective function in that the formalities are designed to protect testators from the imposition of undue influence or fraud.
See, also, to the same effect: Reforming the Law of Wills: Final Report of Victoria Law Reform Committee (May 1994). The operation of s 9
(a) The requirement of writing The first requirement contained in s 9 is that a will must be in writing. The writing may be contained in several documents: Even though s 9 stipulates that a will must be in writing, the law does not insist that the writing must be embodied in a single document. It is, 29
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for instance, open to T to express his testamentary wishes in a will and one or more codicils or to incorporate some other document by reference in his will. It has, however, been emphasised by the Privy Council in Douglas-Menzies v Umphelby (1908) that even where a person’s testamentary wishes are set out in several documents, he will be deemed to have left only one will. Form of writing: No specific mode of writing is prescribed in s 9. When the WA was first enacted, most wills were handwritten (called holographs). Such handwritten wills may be in ink or pencil. Where both ink and pencil are used and the words in ink are inconsistent with those in pencil, the presumption is that the words in pencil are merely deliberative, while the words in ink are final and will therefore prevail: see In the Goods of Adams (1872). In modern times, it has become commonplace for wills to be typewritten, word-processed or set out on standard printed forms available from stationers. Such wills are as valid as handwritten wills since writing is legally defined in the Interpretation Act 1978 to include ‘typing, printing and other modes of representing or reproducing words in a visible form’. Current trends point to the possibility that in future recognition may also be given to wills embodied in electronic form (see, for example, the ‘medium neutrality’ approach to documents in electronic format favoured by the Electronic Communication Act 2000). Material on which the will is written: A will may be written on any material. See, for example, In the Estate of Murray (1963) (piece of cardboard); Hodson v Barnes (1926) (egg shell). Remarking on this state of affairs, Borkowski (at p 92 of his book) suggests that, in theory, there is no restriction on the nature or size of the material on which a will may be written and indicates that in some common law jurisdictions, probate has been granted to wills made on step-ladders, stable doors and tractors. It is, however, customary for the writing to be set out on paper. The format recommended by the Principal Registry of the Family Division, which deals with applications for probate, is black wording on white A4 or foolscap paper. The language of the will: As has been emphasised by Buckley LJ in Re Berger, wills are not required to be framed in any particular type of language. This means, for instance, that: • 30
a home-made document using ordinary words may be a valid will—Thorn v Dickens;
F ORMALITIES FOR A VALID W ILL
•
a will may be written in a language not English: Whiting v Turner (1906) (French); Re Berger: (Hebrew); Kell v Charmer (1856) (symbols used in the jewellery trade).
(b) The testator’s signature A further requirement that is imposed by s 9 is that a will must be ‘signed by the testator’. (1) Signature on T’s behalf: As an alternative to the will being signed by T himself, s 9 provides that it may be signed by some other person ‘in his presence and at his direction’. To this end, it makes no difference whether the will is: • signed in T’s name, as happened for instance in Smith v Harris (1845) (which also establishes that the person signing on T’s behalf may also act as a witness T); or • signed in the name of the person signing on T’s behalf, as happened in In the Goods of Clarke (1839). As an alternative to directing another person to sign on his behalf, T may sign the will himself, but in so doing rely on another person to guide his hand along the paper, especially where he is blind or seriously ill. See Fulton v Kee (1961). (2) Form of signature: Although the common practice is for T to write his name on or affix his usual signature to the will, the courts have demonstrated considerable flexibility in determining what suffices as T’s signature, as seen from the following cases:
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(3) Position of signature: original s 9: Under the original s 9, T’s signature had to appear at the foot or end of the will. This led to unsatisfactory results in cases like Smee v Bryer (1848). In this case, a will was declared invalid where T’s signature could not fit into the tiny space left at the bottom of the page, compelling T to sign on a fresh page. In response, Parliament enacted the Wills (Amendment) Act (WAA) 1852, which provided that: •
a signature positioned at/after/following/under/ beside/ opposite the end of a will would be valid once it was apparent that T intended by signing to give effect to the will;
•
a signature would not be invalid just because there was a gap between the end of the will and the signature;
•
a signature would not be invalid just because it was contained on a page on which no part of the will was written (as happened in in Smee v Bryer).
Application of the WAA: On the whole, the courts tended to adopt a liberal approach when seeking to determine whether the position of T’s signature fell within the extended meaning given by the WAA to the term ‘at the foot or end’ of the will. This is evident from such cases as: •
Re Roberts (1927)—Here the end of the will had no space for T’s signature and so he turned the sheet sideways and wrote out and signed an attestation clause in the left hand margin. Held, this was opposite the end of the will and hence valid;
•
In the Goods of Hornby (1946)—Here T’s signature was in an oblong box halfway down the page containing his will. Held, T intended the box to be the end of his will and so the signature was valid.
At the same time, however, it was decided in Re Stalman (1931) that where T’s signature was placed at the top right hand corner of the will, this did not come within the extended meaning given to ‘the foot or end’ of the will by the WAA and so this will was held to have been invalidly executed. Amended s 9: The amended s 9 does not stipulate that T’s signature must be at the foot or end of the will. It can be deduced from cases such as Wood v Smith (1991) (T’s name in opening sentence of will) and Weatherhill v Pearce (1995) (T’s 32
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name in attestation clause) that Stalman would have been decided differently if T in that case had died after 1982. Signature where will consists of several pages: Where a will runs into several pages, T is not required to sign each page. A signature on one of the pages will be valid provided all the pages are sufficiently connected or attached at the time of execution. In Re Little (1960), for instance, T’s will was contained on five pages and he signed the fifth page which was covering the other four. The court held that at the time of execution all the pages were sufficiently connected to validate the entire will. Also, in In the Goods of Mann (1942), the sheet of paper containing T’s will was not signed by her but was put in an envelop on which she wrote ‘The last will and testament of JCM’. It was held that there, was a sufficiently close relationship between the envelope and the will to justify treating the envelope as a page of the will and holding that by putting her name on the envelope T had effectively signed the will. (4) T’s signature must be intended to give effect to the will: This requirement was not contained in the original s 9, but dates back to the 1852 Act. It has since been incorporated into the amended s 9. Its effect is well illustrated by the so called envelope cases (In the Estate of Bean (1944), Re Beadle (1974) and In the Goods of Mann), as well as in the more recent case of Wood v Smith. •
In the Estate of Bean: T, having made his will on a printed will form, placed it in an envelope without signing or acknowledging his signature in the presence of witnesses as stipulated by s 9. However, he put his name and address on the envelope. Held, T’s failure to sign the will was an oversight on his part and his name/address on the envelope was simply to identify its contents and not intended to give effect to his will.
•
Re Beadle: T made her will in the presence of two friends C and M. T signed the will and C signed as witness, but not M. T then put the will in a sealed envelope on which she wrote ‘my last will and testament EAB’. C and M signed the envelope. Held, as T had already signed the will (albeit without observing the correct formalities), her name on the envelope was not intended to give effect to the will and was simply for identification. Contrast with the following: 33
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•
In the Goods of Mann: The court accepted that T’s failure to sign the will was not accidental, but was due to the fact that she intended her name on the envelope (which was also signed by two witnesses) to be her signature. The will was thus upheld as valid.
•
Wood v Smith: T began his will with the words ‘My will by PW of [address]’ and then made several dispositions. T did not sign at the end of the dispositive provisions in the will and when this was pointed out by a witness, T pointed out that his name already appeared at the beginning of the will which sufficed under the law. Held, T’s name at the top was a valid signature intended to give effect to his will (although the court went on declare the will invalid for lack of testamentary capacity).
(c) The requirement that the testator must sign in the presence of witnesses In order for a will to be duly executed T’s signature must be witnessed in the manner stipulated in s 9, which requires T either: (i) to sign the will in the presence of two witnesses both being present at the same time; or (ii) to acknowledge his signature in the presence of such witnesses. The presence of these witnesses provides a useful safeguard against forgery and the exertion of undue influence. (1) Capacity of witnesses: Witnesses are expected to ‘see and be conscious of the act done and be able to prove it in evidence’: per Lushington LJ in Hudson v Parker (1844). It follows that: •
a blind person cannot ordinarily be a witness, since he has no visual perception of T’s act of signing or acknowledging the will. Thus, in Re Gibson (1949), for instance, a codicil failed because one witness was blind. However, it is arguable that where the will or T’s signature is written in braille, it can be acknowledged to a blind witness who is able to read such writing;
•
a witness must in the words of Lushington LJ be present ‘mentally as well as bodily’. For example, he must not be asleep or intoxicated or of unsound mind when the will is being executed.
Infants as witnesses: Somewhat surprisingly, the courts have accepted in cases such as Wilson v Beddard (1841) and Smith v 34
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Thompson (1931) that the mere fact of infancy does not of itself render a witness incapable. This gives rise to a paradoxical situation in which an infant is precluded from making a will by s 9 of the WA because he is adjudged to lack testamentary capacity and yet may possess the requisite capacity to witness another person’s will. Borkowski has questioned this state of affairs in a recent article in [2000] Conv 31, where he advocates the introduction of a minimum age for witnesses. Beneficiaries as witnesses: A beneficiary normally has the capacity to act as a witness to the will under which he benefits. It is, however, inadvisable to ask a beneficiary or the spouse of a beneficiary to witness a will unless there are at least two other witnesses. This is so because, as Russell LJ explained in In the Estate of Bravda (1968), that ‘Every time…that a beneficiary or his spouse is an attesting witness, s 15 of the WA deprives him of his benefit’. The rule in s 15 is dealt with in more detail in Chapter 4. The testator’s creditors as witnesses: It is expressly provided in s 16 of the WA that any creditor of the testator or the spouse of any creditor may act as a witness under his will. Executors as witnesses: By virtue of s 17 of the WA, an executor is competent to act as a witness. However, where the executor is a solicitor or some other professional and the will contains a charging clause, it is against his interest to witness the will. This is because any payment to him by virtue of such charging clause is in the nature of a benefit under the will and therefore lapses under s 15 if he witnesses the will. See Re Pooley (1888). (2) Signing in the presence of witnesses: T’s signature is valid, once the act of signing was done with two witnesses present. In this context, it is not enough merely for the witness (W) to be in the same vicinity as T when he signs the will. W must actually have had the opportunity of observing T in the act of signing. As Gorrell Barnes LJ explained in Brown v Skirrow (1902): ‘You cannot be a witness to an act that you are unconscious of; otherwise the thing might be done in ballroom 100 feet long and with a number of people in the intervening space. In my view, at the end of the transaction the witness should be able to say in truth “I know that [T] has signed this document”.’ In this case, W1 and W2 were working in a shop when T brought her will in to be witnessed. T signed the will with 35
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W1 looking on, but W2 was busy attending to a tradesman and did not see T sign. Held, the will was invalid, as it had not been properly witnessed by W2. Although Brown v Skirrow envisages that W must have been able to observe T in the act of signing, this does not, however, mean that: •
T must inform W that the document being signed is his will. See Re Benjamin (1934);
•
T’s signature on the document must have been visible to W when T made it. See Smith v Smith (1866).
Meaning of ‘presence’: While the presence of witnesses is necessary when T is signing the will, this does not invariably mean that the witnesses must be in the same room as T when he signs it. It may happen, for instance, that at the time T is signing the will in one room, the witnesses are in an adjoining room from where T is visible to them. Judging from cases like Shires v Glascock (1688) and Casson v Dade (1781) (both of which were concerned with the corresponding requirement that W must also sign in T’s presence), what is material is whether the testator when signing was in the direct line of vision of the witness in whose presence he is signing the will and vice versa. The position becomes more problematic where, for instance, T signs his will in Cardiff while W is in Swansea observing him through a satellite or video link up. Can it be said that T signed in W’s presence? Borkowski, for one, suggests (at p 101 of his book) that presence in relation to the execution of wills connotes bodily presence and argues that to uphold an arrangement of this nature would make a mockery of the will-making process. (3) Acknowledgment in the presence of witnesses: If T signed the will without two witnesses being present, he must subsequently acknowledge his signature in the presence of witnesses. Acknowledgment entails some demonstration by T that he accepts the signature appearing on the will as his own. Modes of acknowledgment: The acknowledgment of T’s signature may assume several forms: •
36
The most obvious form of acknowledgment is an express declaration by T to the intended witnesses that the name/ signature on the document he is asking them to witness is his own.
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•
It also emerges from cases like Weatherhill v Pearce that even if T does not expressly state that the signature on the will is his own, his act in asking the intended witnesses to witness a will bearing his signature constitutes acknowledgment. Indeed, it has been held in Keigwin v Keigwin (1843) and Daintree v Butcher (1888) that there is sufficient acknowledgment where T places a document bearing his signature in front of the intended witnesses without any indication that it is a will.
•
Moreover, it appears from In the Goods of Davies (1850) that T’s signature may be acknowledged by gestures rather than by words.
T’s signature must be visible when it is being acknowledged: T must ensure that the signature, which he seeks to acknowledge, is sufficiently visible for the witnesses to see or at least have the opportunity of seeing. It has accordingly been held that there is no valid acknowledgment, where at the material time: •
the will was folded (as in Hudson v Parker); or
•
the portion of the will containing T’s signature was concealed by blotting paper (as in In the Goods of Gunstan (1882));
•
or the will was in T’s pocket (as in Re Groffman (1969)).
(4) Presence of witnesses at the same time: Both W1 and W2 must be present when T is signing or acknowledging his signature. It will not therefore be sufficient for T to first sign his will or acknowledge his signature in the presence of W1 and later acknowledge his signature in the presence of W2. The position in this regard is most strikingly illustrated by Re Groffman, where T after signing his will took it to a party, which he knew W1 and W2 would attend. On seeing W1 and W2, T patted his coat pocket, which contained the will. W1 took T to an adjoining room where T took out the will. W1 signed it below T’s signature and left the room. W2 then came in and also signed the will. Held, the will was invalid, since it was not acknowledged in the joint presence of W1 and W2. However, the stringent approach that characterised the decision in Re Groffman may be contrasted with the more flexible approach evident in Weatherhill v Pearce. In this case, T having signed the disputed will took it to the house of two friends she wanted to act as her witnesses. There was no doubt that T acknowledged her signature to both witnesses but it was uncertain whether they 37
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were present at the same time as stipulated by s 9. The facts disclosed that the front door to the house led directly into a living room, which occupied the entire ground floor and it was in this room that T acknowledged her signature. Even though there was no conclusive evidence on this point, Kolbert J considered it highly likely that T and her two friends were all present in the room at some stage for the purpose of witnessing T’s execution of the will. He then invoked the maxim omnia praesumuntur rite esse acta which dictates that in the absence of evidence to the contrary all formalities (for the execution of a will) are presumed to have been complied with and on this basis pronounced the will to have been validly executed. This presumption was also invoked to the same effect in Re Cameron (1999). Here the disputed will bore the signatures of T and her two brothers-in-law, W1 and W2. W1 had since died, while W2’s memory had been so severely impaired by old age that he could not even recollect signing the will. Consequently, no evidence was forthcoming as to whether W1 and W2 were both present when T signed or acknowledged the will. This notwithstanding, Laddie J was able to presume that T’s will had been duly executed and was thus valid. (5) The requirement that the witnesses must also sign the will: Under s 9, the witnesses are required to sign the will in T’s presence, after T himself has signed the will or acknowledged his signature in the joint presence of the witnesses. (a) Effect of not following the correct chronological order: A will may be invalidated by the fact that it was signed by a witness before the testator had signed in the presence of both witnesses or acknowledged his signature T in the presence of both witnesses. This was the case, for instance, in:
38
•
Wyatt v Berry (1893), where T took his already signed will to W1, who signed. T then realised that a will needed two witnesses and invited W2 to join them. T then proceeded to acknowledge his signature in the presence of W1 and W2 after which the will was signed by W2. Held, even though the signature of T and his two witnesses appeared on the will, it was invalid, since W1 had signed it before T had had the opportunity of acknowledging his signature in the joint presence of W1 and W2;
•
Re Colling (1972), where T made a will in hospital. T
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was in the process of signing it in the presence of W1 (fellow patient) and W2 (nurse) when W2 was called away to attend to another patient. T finished signing in the presence of W1 who then signed. When W2 returned T and W1 acknowledged their signatures to her and she then signed. The will was held to be invalid on the same ground as in Wyatt v Berry. (b) Acknowledgment of prior signature made by witness: The fact that W1 in Re Colling purported to acknowledge his signature when W2 returned did not operate to make the will valid. This was because the case was decided under the original s 9, which made no provision for witnesses to acknowledge their earlier signatures. This situation has been remedied by the amended s 9, which provides for acknowledgment by witnesses in respect of wills of testators dying after 31 December 1992. The effect of this amendment is that a will shall now be valid where: •
W1 signs the will before it is signed/acknowledged by T in the presence of W1 and W2; • T later signs/acknowledges his signature in the presence of W1 and W2; and • W1 thereafter acknowledges his prior signature in the presence of T. A situation of this nature arose in Causer v Causer (1996). Here, T made a will on 2 February. On 4 February, he took the will to the home of Mr and Mrs B and asked them to witness it. While T was alone with Mrs B in the house, he took the will out of his pocket and showed her his signature, after which she signed the will. Ten minutes later, Mr B joined them and was shown the portion of the will signed by T and Mrs B, whereupon Mr B also signed the will. It was held that the will was duly executed, since not only had T acknowledged his signature in the joint presence of Mr and Mrs B, but also Mrs B had properly acknowledged her signature in Mr B’s presence when he signed the will. Commenting on the decision in Couser (in August [1996] Fam Law 470), Cretney aptly captures the significance of the amended s 9 in his observation that it ‘effectively allow [s] a witness to equate acknowledgment with signature in the same ways as was allowed to a 39
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testator [under the original s 9]’. It would thus appear that if the testators in Wyatt and Colling had died after 1982, their cases could well have been decided differently. (c) The requirement that witnesses must sign/acknowledge in the testator’s presence: This presupposes that when W is signing the will or acknowledging his signature, T must be aware of this fact. This means, for instance, that if T, being seriously ill, becomes unconscious before W signs (as happened in Right v Price (1779)), this renders the will invalid. However, if T is gradually lapsing into unconsciousness but W manages to sign before unconsciousness sets in fully (as happened in In the Goods of Chalcraft), this validates the will. The courts have also decided that T’s position relative to W must be such that T is able to see W in the act of signing. In Shires v Glascock, for instance, T who was in one room while W1 and W2 were signing his will in the next room could see them signing through a broken window. In Casson v Dade, T went to her attorney’s office to execute her will. She signed it in her carriage in the presence of W1 and W2 because the office was too hot. It was then taken inside to be signed by W1 and W2. The evidence disclosed that the carriage was parked next to a window through which T could see W1 and W2 signing. Both wills were held to be valid. On the other hand, in Tribe v Tribe (1849), T and her witnesses were in one room when they signed her will. The witnesses signed sitting at T’s dressing table while T was lying in bed with her back to the dressing table. The will was held to be invalid. Also, in Norton v Bazett (1856), T signed his will in the presence of his clerks while sitting at his office desk. The clerks then took it to an outer room where they signed it. Although the connecting door between both rooms was open, T could not have seen them signing from his position behind his desk. This will was also held to be invalid. Similarly, in Wright v Manifold (1813), T signed his will on his deathbed and it was then taken to an adjoining room where the witnesses signed it. The position of T’s bed indicated that he could not possibly have seen the witnesses signing the will and it therefore failed on the ground that they had not signed in his presence. (d) Witnesses not required to sign/acknowledge in the presence of each other: It must be emphasised that while witnesses are required to sign/acknowledge their signatures in T’s presence, there is no corresponding requirement that they should sign/ 40
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acknowledge in the presence of each other. The effect of this can be seen in In the Goods of Webb (1855), where T made and signed her will in March. Two months later, she took out the will and acknowledged her signature in the presence of W1 and W2. After the acknowledgment, W2 left the room and in his absence, the will was signed by W1. When W2 returned, he also signed the will. The will was upheld as valid. (e) Form of witness’s signature: The courts have shown the same measure of flexibility in determining what constitutes W’s signature as they have done in relation to T’s signature. Accordingly, the initials of a witness or any other mark made by him by which he can be identified will suffice for the purpose of s 9. See, for example, In the Goods of Ashmore (1843) and Phipps v Hale (1874). Moreover, it appears that where the attesting witnesses uses some description to identify himself in the will, this will suffice as his a signature. In In the Goods of Sperling (1863), for instance, T’s will was witnessed my his manservant who instead of signing the will in his own name, simply wrote ‘Servant to Mr Sperling’. This was accepted as a valid signature and the will was held to be valid. It is noteworthy, however, that unlike T, whose will can be signed by another on his behalf, it has been held in In the Estate of Bulloch (1968) that W must personally sign the will which he is witnessing and cannot do so through another person. (f) Position of witness’s signature: Whereas the old s 9 stipulated that T’s signature had to be at the foot or end of the will, there has never been any statutory requirement regarding the position of the witnesses’ signatures. It has accordingly been held by Campbell CJ in Roberts v Phillips (1855) that the rule that witnesses should sign the will is complied with by the witnesses signing their names on any part of the will. (g) Signature of witnesses on document attached to will: Where the witnesses did not actually sign the will itself but signed some other document to which the will is physically attached, the will may still be valid as seen from: •
In the Goods of Mann, where the signature of the witnesses appeared on the envelope in which the will had been placed; and
•
In the Goods of Braddock (1876), where the witnesses to a codicil placed their signatures on the back of the main will to which the codicil had been pinned. 41
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Attestation clauses: It is provided in s 9 that no form of attestation is necessary for a will to be valid. At the same time, however, an attestation clause serves a useful purpose, since it ordinarily facilitates the grant of probate. There is a presumption that a will has complied with the statutory formalities governing execution, where it contains an attestation clause. The absence of such a clause does not render the will invalid, but makes it necessary to prove by other means that the formalities have been observed by tracing any of the witnesses or any other person who was present at the execution of the will and obtaining an affidavit of due execution from them in the manner contemplated by r 12 of the Non-Contentious Probate Rules 1987.
Reform of s 9 of the WA Over the years calls have been made by law reform bodies, academic commentators, legal practitioners and other interested parties for s 9 WA to be reformed in a variety of ways. One recent advocate of reform is Towns who argued that recommendations in Law Reform Commission Report on the Making and Revocation of Wills (1980) (on which the amended s 9 was based) were ‘disappointing in their timidity’. He proposes the enactment of what he grandly describes as ‘a new Wills Act for a new millennium’ without spelling out in detail those aspects of s 9 he considers to be defective and the manner in which these defects might be remedied. See Towns (1999) NLJ, 26 March, pp 445–46. The case for reforming s 9 has also been vigorously argued by Borkowski in his recent article ‘Reforming Section 9 of the Wills Act’ in [2000] Conv, pp 31–42. In this article, he focuses on various features of s 9 he considers unsatisfactory which have not yet been addressed by legislation, explains why he perceives them to be unsatisfactory and puts forward proposals for reform which, if adopted, would significantly transform the operation of the formalities rules. The most notable of the reforms which he proposes relate to: • • • • •
42
the imposition of a requirement that a will must be dated; the introduction of greater clarity regarding what constitutes a signature on a will; the provision of more stringent guidelines on what constitutes ‘presence’; the removal of the provision that someone else may sign on T’s behalf; the adoption of a stricter approach to what amounts to acknowledgment’;
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•
the increase of the number of required witnesses to three; the prescription of a minimum age for such witnesses and the introduction of a requirement that witnesses must sign/ acknowledge their signatures not only in the testator’s presence, but also in the presence of each other; • the deletion of the provision in s 9 that ‘no form of attestation shall be necessary’ (and the possible inclusion of a provision that all wills must contain an attestation clause); • the availability of a dispensing power of the type that is common in Australian Wills legislation which will enable the courts to declare a will valid on the basis of substantial compliance with the formalities rules. A close reading of Borkowski’s article discloses well founded justifications for most of his suggested reforms. There are, however, one or two of his proposals that may be viewed with some reservation such as those relating to: • dispensing with the possibility that some other person may sign the will on the testator’s behalf; • increasing the number of witnesses to three. Another reform which it has been suggested would further safeguard the process of executing wills is the introduction of a provision for the notarisation of wills (namely, arranging for wills to be executed in the presence of a notary, commissioner for oaths or some other functionary of equivalent standing). Such a possibility was mooted by Gorrel Barnes J in Brown v Skirrow and was also recommended by the Justice Committee in its Report on Home Made Wills (1971). A similar recommendation has more recently been put forward by Kerridge in an article entitled ‘Wills made in suspicious circumstances: The problem of the vulnerable testator’ [2000] 59(2) CLJ 310 at p 333, where he suggests that ‘what should [emphasis his] now happen is that s 9 of the Wills Act should be amended, or some other provision should be enacted to provide for wills to be executed in front of solicitors who are totally independent of, and in no way connected with beneficiaries’.
Incorporation of documents into duly executed wills A document which itself has not been duly executed will be treated as part of a duly executed will where it is incorporated by reference into the will. This doctrine of incorporation by reference applies if three conditions are fulfilled: 43
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•
•
The document must be in existence at the time the will is executed. The effect of this requirement is seen in Singleton v Tomlinson (1878), where T in his will directed his executors to sell four landed estates referred to in the will. Details of these estates were set out in a schedule signed by T, which bore the same date as the will and was annexed to it. The witnesses were uncertain whether they had seen the schedule at the time the will was executed and the court held that there could be no incorporation by reference since it had not been established that it was in existence when the will was executed. However, it was decided in In the Goods of Lady Truro (1866) that if the relevant document was made after the will was executed but at an even later date the will is republished by a codicil, this operates to re-execute the will. This means that for purposes of incorporation by reference, the document is now deemed to have been made before the will was executed. The document must be referred to in the will as being in existence. Unless the will describes the relevant document in terms which signify that it is in existence at the time the will is executed, it cannot be incorporated into the will. For instance, in University College of North Wales v Taylor (1908), where the reference in the will was to ‘any memorandum among my papers written or signed by me ’, the court held that the doctrine of incorporation would not apply. Again, it was held in In the Goods of Sutherland (1866) that there could be no incorporation by reference where the will spoke of ‘any existing or future document signed by me’. It is also clear from In the Goods of Smart (1902) that the position in this regard is not altered by any subsequent republication of the will. Accordingly, if T’s will refers to a future document and after executing the will, T writes such a document, even if T subsequently executes a codicil republishing the will, this will not enable the document to be incorporated into the will.
•
44
The document must be clearly identified in the will. There can be no incorporation by reference unless the terms used in the will to describe a document are clear enough to enable it to be identified. Thus, in In the Goods of Garnett (1898), T alluded in his will to papers numbered 1–6 which he said contained his testamentary intentions. The will was placed in a drawer with many other documents but it was impossible to determine which of these documents corresponded with papers 1–6 and it was therefore held that none of the documents could be incorporated into the will. However, as the Privy Council acknowledged in Allen v Maddock (1858), where the words employed in the will are inconclusive,
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the matter may, in appropriate circumstances, be resolved by admitting parole evidence to establish which document the testator intended to incorporate into his will.
Privileged wills Certain categories of persons were allowed by s 11 of the WA to dispose of their personal property as they might have done before the passing of the WA. In other words such persons were empowered to make privileged wills which would be valid without the need to comply with the requirements of the WA. The Wills (Soldiers and Sailors) Act (W(SS)A) 1918, widened the categories of privileged testators and provided for real property to be disposed of by privileged wills in cases where the testator died after 5 February 1918. Categories of privileged testators
Two categories of privileged testators were specifically mentioned in s 11 of the WA, namely: (a) Soldiers in actual military service Who is a soldier? In the present context, the term ‘soldier’ has been very widely construed. It encompasses not only full time career soldiers but also part timers like members of the Territorial Army. See Re Rippon (1943). It covers not only members of combat units but also others such as members of the medical corps, the chaplaincy and other support units. See, for example, In the Estate of Stanley (1944), which concerned the estate of a female military nurse. Moreover, the W(SS)A stipulates that the expression ‘soldier’ includes a member of the Air Force. This is reinforced by cases such as Re Wingham (1949) and In the Estate of Rowson (1944), where the deceased were an RAF officer and a WAAF Squadron Leader respectively. What is actual military service? In order to be entitled to make a privileged will, a soldier must at the material time be in actual military service. According to Lord Denning in Re Wingham, this requirement will be fulfilled if the soldier is serving with the armed forces ‘in connection with military operations which are or have been taking place or are believed to be imminent’. In this case, it was held that an RAF officer training as a pilot in Canada in 1943 was in actual military service since he was liable at any time to be posted to an area where he would become involved in active warfare. 45
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After initial doubts, it has been accepted that a soldier may be in actual military service even when the nation is not at war. In In the Estate of Colman (1958), a soldier posted to the British Army on the Rhine, as part of the Allied forces occupying Germany after World War Two was held to be in actual military service. Also, in Re Jones (1981), a British Army corporal on a tour of duty in Ulster engaged in internal security operations against paramilitary forces was held to be in actual military service. See, also, Re Anderson’s Will (1958) and Re Berry (1955). In the light of this, there seems little doubt that British soldiers currently engaged in military or peacekeeping operations in various trouble spots of the world will also be regarded as being in actual military service. (b) Manners or seamen being at sea Who is a mariner or seaman? This category includes any person serving in the Royal Navy, Royal Marines or Merchant Navy. It does not matter, whether the person is a male or female or the capacity in which they are serving, provided the nature of the service involves going to sea. See, for example, In the Goods of Hale (1916) (female typist on to the ocean liner Lusitania) and In the Estate of Knibbs (1962) (barman on ocean liner Arcadia). What does being at sea mean? On the whole, the courts have adopted a relaxed approach towards the issue of whether a mariner or seaman is at sea when his will is made. In the first place, in In the Goods of Patterson (1898), a sailor on a ship which was moored on the Thames ready to sail, and in In the Goods of Austen (1853), an admiral on a naval expedition on the Rangoon river, were both held to be privileged. Indeed, in In the Goods of M’Murdo (1868), the court went as far as to hold that a will executed by a seaman while serving on a ship permanently stationed in Portsmouth harbour was privileged. Secondly, it has been decided in cases such as In the Goods of Lay (1840) that a sailor who in the course of a sea voyage makes a will while his ship is docked in a foreign port will be deemed to be privileged, even though the will is made on dry land. Thirdly, it emerges from several cases that a seaman or mariner will be privileged if he has not yet begun his sea journey, but is preparing to go to sea having received orders to join his ship. For instance, in In the Goods of Hale, it was held that a will made by a typist employed by the Cunard line after she had received orders to join the Lusitania, but before the ship set sail was a 46
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valid privileged will. Again, in Re Newland’s Estate (1952), a merchant navy apprentice who made a will while on shore leave when his ship was docked in Liverpool, but after he had received orders to rejoin the ship, was held to be a privileged testator. In Re Wilson’s Estate (1952), a chief officer in the merchant fleet owned by the Anglo-Saxon Petroleum Co was on furlough at home and at the end of his furlough made an oral will having received instructions to join another ship and it was held that the will was privileged. By contrast, however, in Re Rapley’s Estate (1983), the deceased made a will while serving an apprenticeship with the Ellerman City Line. At the time the will was made, he had completed a voyage on one of company’s ships and was on furlough. He got his orders to join another ship, some days after making his will. The court refused to give effect to this will on the ground that he was not at sea at the material time. (c) Members of Her Majesty’s naval or marine forces so circumstanced that if they were soldiers they would be in actual military service Section 2 of the W(SS)A expanded the category of privileged persons to include any member of the Royal Navy or Marines ‘not only where he is at sea [as understood above] but also where he is so circumstanced that if he were a soldier he would be in actual military service’. This statutory provision was enacted in response to concerns expressed in such cases as In the Estate of Anderson (1916). Here, the deceased was called up and ordered to report to the railway station and to proceed to Chatham Naval Base. On the day of his departure, he wrote out a document leaving all he owned to his fiancée. At Chatham, he remained in barracks until he was posted to a transport ship several weeks later. His ship was wrecked and he was lost at sea. The court held that the document in his fiancée’s favour would have been a valid privileged will had it been made while he was on board his ship, as he would then have been a sailor at sea. However, as it was written at a time when his only order was to report to the railway station and before he was assigned to any unit, it was held that it was not therefore privileged. The judgment went on to note that if the deceased had on being called up been attached to a unit of the army, he would arguably have been in actual military service and the document would thus have been privileged, and Deane J made it clear that he regarded this as an unsatisfactory state of affairs. 47
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Section 2 of the W(SS)A was enacted to remedy this state of affairs and its effect is seen in In the Estate of Yates (1919), where the deceased who was serving with the Royal Navy was ordered to join his ship in Cape Town. While bidding his son farewell at the railway station just before his departure, the deceased told him that if anything should happen to him all his property was to go to his wife. After his subsequent death in Cape Town it was held that if the deceased had been a soldier he would be deemed to have made his statement as to the disposal of his property while in actual military service and accordingly the statement constituted a privileged will under the W(SS)A. Implications of the privileged status
The hallmark of a privileged will is that it is not subject to the requirements of the Wills Act. This has a number of significant implications: •
A privileged will is valid even if the formalities prescribed in s 9 have not been observed by the deceased. In this connection, it has already been seen in Yates that an oral direction is capable of constituting a privileged will. This is also evident from other cases such as Re Stable (1919) and Re Jones. By the same token, in such cases as Hale and Stanley, the courts were prepared to uphold as privileged wills, ordinary letters which had not been duly executed in the manner contemplated by s 9. The courts have, however, been at pains to establish that an oral or written statement which has not been duly executed will qualify as a privileged will only if the deceased intended that on the strength of this statement his property should devolve in the manner set out in the statement. Such an intention was held to be lacking in In the Estate of Knibbs, where a barman who was working on an ocean liner told the head barman in the course of a casual conversation about their family affairs that if anything happened to him, his sister, Iris, would get everything he owned. This statement had simply been imparted by the deceased in the course of exchanging family gossip and not with the intention of conveying to his audience a request, explicit or implicit, to see that the wish expressed in the statement was carried out. As such, it was not a valid privileged will.
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•
An informal act or document by a privileged testator is capable of revoking a formal will executed at an earlier date by the deceased person. This is borne out by in In the Estate of Gossage (1921), in which T, while under orders to proceed to South Africa with his unit, made a formal will in favour of his fiancée, F. Before setting sail, he handed the sealed envelope containing the will to F, directing her not to open it unless anything happened to him. While he was in South Africa, their relationship became strained and as a result T directed F to hand over the envelope to his sister, which she duly did. T then wrote to his sister asking her to burn the will, as he had already cancelled it, and his sister did so. When T died some month’s later, it was held that as a soldier in actual military service, he could revoke his earlier will even by means of an informal letter which did not comply with the WA. While on the subject of revocation, it should also be pointed out:
that a privileged will may be itself be revoked by the testator either in a subsequent will or as decided in In the Estate of Wardrop (1917), by his subsequent marriage;
where the privileged will is not revoked in the testator’s lifetime, it remains effective even if it at the time of his death he has ceased to be privileged. Thus, in Re Booth (1926), an informal will made by the testator in 1882 when he was in actual military service was admitted to probate on his death in 1924, which was long after he had retired from the Army.
•
A minor is competent to make a privileged will, notwithstanding the stipulation in s 7 of the WA that a will executed by him is void. The competence of the minor was expressly affirmed in the W(SS)A, and in Re Newland, the court upheld as valid a privileged will made by an apprentice seaman who had not yet attained majority.
•
Finally, it is noteworthy that privileged wills are not caught by the rule in s 15 of the WA, which stipulates that where a will is witnessed by a beneficiary or his or her spouse, the beneficiary’s interest lapses. In Re Limond (1915), T, while on military service in India was mortally wounded on patrol. On his deathbed, T dictated his will in which he left his residuary estate to his brother-in-law who was his fellow officer. Although the brotherin-law witnessed the will, the court held that this would not deprive him of his benefit, since T was a privileged testator. 49
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The issue of the abolition or modification of privileged wills
Over the years, various academic commentators have questioned the modern-day relevance and continued operation of privileged wills in the law of succession of England and other Commonwealth countries. These commentators have put forward various criticisms of the regime of privileged wills and several have argued for its abolition. These criticisms have been articulated with considerable clarity and cogency in Hardingham, Neave and Ford’s Wills and Intestacy in Australia and New Zealand, 2nd edn, Chapter 4. They may be summarised as follows: •
In so far as the doctrine was founded on the proposition that soldiers in time of war and mariners at sea did not have the benefit of appropriate legal advice, this is no longer the case. In the same vein, Critchley points out in her article ‘Privileged wills and testamentary formalities: a time to die’ [1999] 58 CLJ 49, p 55, ‘as far as service personnel are concerned, the efforts of the military authorities mean that the average soldier is probably better advised as to the legal formalities for a will than the majority of the population (and he obtains this advice free of charge)’.
•
It is arguable that it is not a privilege to be exempt from statutory provisions that serve a variety of beneficial functions that are clearly designed to protect testators. On the contrary, Hardingham et al argue that persons who are denied these benefits can hardly be considered privileged.
•
The battlefield or other place of danger or stress is not a proper environment for making revoking or altering a will. Pain, stress, anxiety or depression is not conducive to the formation of responsible testamentary intentions.
•
There are considerable problems in obtaining reliable, admissible evidence of the making or the contents of a privileged will, particularly when it consists of an oral declaration. The circumstances in which the will was made, the testator’s state of mind, recollections of what the testator said and the interpretation of declarations of intention which may be confused or intermittent, may encourage difficult and expensive litigation. The evidential difficulties which are liable to arise can be seen for instance in Re Jones, where a soldier serving in Ulster having been fatally wounded on patrol told his comrades: ‘If I don’t make it, make sure Annie [his girlfriend] gets all my stuff. As Critchley observes (p 53 of her article), it was difficult to discern from this statement whether he
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was referring to his personal effects in the barracks, his entire personal estate or the whole of his estate, real and personal. •
Even if a person entitled to privileged status dies intestate, this will no longer have as significant an impact as it might have done in the past, since recourse can now be had to the family provision legislation to mitigate any injustice that might result from a strict application of the intestacy rules.
In its Final Report on the Making of Wills, the Victoria Law Reform Committee was sufficiently persuaded by these criticisms to declare that there was a strong case for repealing the provisions of the WA dealing with privileged wills and not replacing them (a measure which had already been taken by the New South Wales legislature in 1988). In her article, Critchley also makes the valid point that if the conferment of privileged status is perceived to be so advantageous it seems anomalous that it has not been extended beyond the three categories specified in the WA to persons engaged in other lines of work which may be equally hazardous; for example, police officers, members of the emergency services, volunteer mine disposal experts, oil rig workers, etc. She argues for the rectification of this anomaly through a process of redrafting that would widen substantially the number of persons able to claim the privilege. Critchley feels that without such a widening process, the retention of privileged status would not be ‘a desirable or even viable option’; and insists that if it proves unacceptable, serious consideration should then be given to the call by many writers for the abolition of the privilege as an unjustifiable anachronism. In her view, ‘This may not be a great loss [since] it appears that the privilege is now rarely invoked, which fact suggests that privileged testators are having no significant problems with the ordinary s 9 formalities’.
51
3 Capacity and Intention to Make a Will You should be familiar with the following areas: •
mental capacity as a condition for the validity of a will
•
the requirement that a testator must know and approve the contents of his will
•
the effect of fraud, duress and undue influence on the validity of a will
In order for a will to be valid, T must possess the capacity to make a will. This means that: (a) he must have reached a statutorily prescribed minimum age; (b) he must be of sound disposing mind. Apart from being rendered invalid on account of T’s incapacity, the whole will or a portion of it may be invalidated on the ground that it does not represent his true intentions either: (c) because he did not know and approve of its contents; or (d) because he was induced to make the will through fraud, coercion or undue influence.
Capacity Age Minors
Minors are deemed to lack the capacity to make a will. This lack of capacity is statutorily entrenched in s 7 of the Wills Act (WA) 1837, which contemplates that no will made by a person under the age of 18 years shall be valid (except where such a person is a privileged testator). 53
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The reasons for denying testamentary capacity to minors have been explored by the Victoria Law Reform Committee (Australia). In its Final Report on Reforming the Law of Wills (1994), the Victoria LRC states that ‘One reason why minors are not allowed to make wills is that although they may know exactly what the function of a will is and exactly what will they wish to make, they may nevertheless lack the discretion to make a responsible will… Another reason why minors are not allowed to make wills is that they are at an age where they may be more easily subjected to undue influence by a relative or close friend than an adult might be’. In the view of the Victoria LRC, these reasons were sufficiently sound to make it advisable to retain the general rule that the age of majority should operate as the age of testamentary capacity. At the same time, however, the Victoria LRC recognised that there could be legitimate occasions when it might be highly desirable to allow a minor to make a will, especially where the minor had assets, was in ill health and the circumstances were such that to allow the intestacy rules to take their course would be unfair. It accordingly recommended that the court should be invested with the power to approve the making of a will by a minor, provided the court is satisfied that: •
the minor understands the nature and effect of the proposed will and the extent of the property to be disposed of;
•
the proposed will accurately reflects the minor’s intentions;
•
it is reasonable in all the circumstances to authorise the making of the will.
In view of the fact that the age of majority is 18, while the age at which a person may get married is 16, the Victoria LRC went on to recommend that: •
married minors ought to be accorded testamentary capacity;
•
in the event of the death of the spouse of a married minor, the minor would lose their entitlement to make a will but would remain entitled to revoke any will they had made during the marriage.
These recommendations appear to be eminently sensible and their adoption within English law would arguably be preferable to maintaining the current indiscriminate and, some might contend arbitrary, ban on will-making by minors, particularly older minors who quite often have to assume responsibility for making important decisions in other areas of their lives. 54
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Elderly testators
In marked contrast to its treatment of minor testators, the WA makes no provision for an upper age limit beyond which a person will no longer be regarded as possessing testamentary capacity. Consequently, a will made by an elderly testator will be valid unless there is evidence to show that such a testator is not of sound disposing mind. (See, for example, Wilkes v Wilkes (2000), in which the will of a testatrix in her 90s was upheld.) Remarking on this state of affairs, Borkowski, in his book (pp 59–60), considers it debatable whether elderly testators should have an unrestricted right to make a will, given the fact that a person’s mental faculties tend to wane in old age and many aged testators tend to be confused in their thinking. However, he acknowledges, that the imposition of an upper age limit may be problematic in view of the difficulty in pinpointing the precise stage in life when old age begins to diminish a person’s mental faculties. An effective way of pre-empting any disputes regarding the mental competence of an elderly testator is to involve a medical doctor in the execution of his will. Such a practice has been judicially endorsed in cases such as Kenward v Adams (1975) and Re Simpson (1977). In the latter case, Templeman J declared that ‘in the case of an aged testator …there is one golden rule which should always be observed…the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his examination and findings’. This golden rule as articulated by Templeman J has subsequently been endorsed in Buckenham v Dickinson (1997) and Re Morris (2000). In the latter case, M, an 84 year old lady who was suffering from senile dementia, had been prevailed on by her two carers, R and B, to convey her house to them for £50 and had also made substantial lifetime gifts to R and B which depleted most of her estate. Rimer J held that the solicitor responsible for M’s affairs (who had prepared the conveyance and re-drafted M’s will) ought to have followed the guidance in Re Simpson by ‘insist[ing] that some medical assistance be invoked as to [M’s] capacity to enter into this unusual transaction and to make the proposed will’. Commenting on Re Morris, Nurse observes that the Law Society Guide to Professional Conduct refers only briefly and broadly to the conduct of solicitors in relation to the wills of elderly clients and makes no specific provision for the golden rule or any other steps which have been stipulated by the courts. He suggests that more specific guidance is needed from the Law Society to ensure that the 55
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elderly are properly advised and to prevent the undermining of public confidence in the legal profession: see Nurse ‘Abide by the golden rule’ in (2000) The Times, 16 May (Law Supplement, p 6). Borkowski goes even further than this in proposing that the golden rule should be elevated into a legal requirement to the effect that after a certain age (he suggests 80) a prospective testator must obtain a medical certificate confirming his mental competence before executing a will (with appropriate exceptions for emergency situations in which a doctor cannot be readily procured). Sound disposing mind
According to Cockburn CJ in Banks v Goodfellow (1870), T is required to have ‘a sound and disposing mind and memory’. He then proceeded to elaborate on this by signifying that: •
T must ‘understand the nature and effect of the business in which he is engaged’;
•
T must be able to ‘recollect the property he means to dispose of’;
•
T must be able to ‘recollect the persons who are the objects of his bounty’;
•
T must not be suffering from any disease of of the mind or insane delusion, which operates to distort his mind.
Criticisms of the Banks-competence test: As Borkowski points out in his book (p 61), the state of knowledge in the field of mental health has undoubtedly expanded considerably in the years since Banks v Goodfellow was decided, which renders it ‘questionable to what extent the test put forward is medically sound’. The difficulties inherent in reconciling the Banks-competence test with modern day approaches to the diagnosis of mental illness is also highlighted by Mahendra (who is both a psychiatrist and a barrister), in his article on Testamentary capacity’ in (2000) NLJ, 11 February, pp 170–72. Equally instructive is Hedley Marten’s article exploring the effect of Alzheimer’s disease on testamentary capacity in (1999) Law Soc Gazette, March, pp 48, 50, 54, 58, in which he: •
reiterates the fact that when Banks v Goodfellow was decided, medical knowledge of diseases of the mind, let alone judicial knowledge, was almost non-existent;
•
expresses the hope that a modern decision will be delivered, preferably by the House of Lords, which will clarify the test for
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testamentary capacity in a manner that takes account of the vast increase in medical knowledge since Banks v Goodfellow; and •
raises the broader issue as to whether judges with their negligible medical knowledge are in fact equipped to pronounce on such medico-legal matters as a testator’s state of mind.
In spite of the foregoing concerns, however, modern day courts routinely continue to pass judgment on the mental competence of testators and in so doing carry on clinging tenaciously to the criteria laid down in this case as their frame of reference. It is therefore necessary to consider each criterion in turn. Understanding the nature of the business
This means in effect that T must be capable of appreciating what he is doing when making his will. A will is thus liable to fail if, at the time it was made, T’s mind was impaired by some disease or defect which made it unlikely that he would understand the nature and significance of his act. This may happen for instance where: • • • •
T was born with substantially subnormal intelligence; T is a mental patient or lunatic with a severe mental disorder; T has suffered an injury which has caused damage to his brain; T’s mind is impaired by senility or other degenerative illness.
In addition to the foregoing, T’s ability to understand the nature of the business he is engaged in when making a will may be substantially undermined by the fact at the time of its execution: •
T’s judgment and decision making capacity had been diminished by the effects of his alcohol consumption. See Brunt v Brunt (1873), Ayrey v Hill (1924) and Re Heinke’s Estate (1959). Note, however, in this connection that a will may still be pronounced valid despite the fact that T had been imbibing copious quantities of alcohol on the day he executed the will (as happened in Chana v Chana (2000)) or had been a habitual alcoholic during the period it was executed (as was the case in Johnson v Farrer (2000));
•
T’s mind has been impaired by the intake of prescribed mindaltering medicines or dependence on illegal narcotic substances. Again, in this connection, it is open to the court to find that in spite of the intake of such drugs T still had sufficient capacity to make a valid will. Thus, for instance, in Williams v Malewska (1997), T, who was suffering from terminal brain cancer had, six 57
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days before his death, made a will in favour of B with whom he had been cohabiting for the preceding four years. T’s wife W (from whom he had separated five years previously without having divorced) sought to challenge the validity of this will, contending inter alia that because of T’s illness which had been diagnosed six months before he made the will, he did not possess the requisite mental capacity. Expert evidence based on a brain scan performed a month before T’s death signified that although the cancer was spreading, it had not affected T’s mental capacity. The consultant physician responsible for T’s care confirmed this. The court felt able to conclude from this evidence that even though T had regularly been taking high doses of morphine and other painkilling drugs from time to time, the disputed will was the product of a sound disposing mind. Again, in Barret v Kasprzyck (2000), T had, two days before her death, executed a will drawn up by her solicitors according to her instructions, in which she left her entire estate to her brother. T executed the will while in hospital where she had been for the past two months suffering from a terminal illness. T’s will was challenged by her son on the ground that T was being treated with powerful drugs when she gave instructions for the will and when she executed it, which deprived her of the requisite mental capacity. The judge acknowledged that there were instances in which the administration of drugs as part of medical treatment could impair the mind leading to a lack of testamentary capacity. In the present case, however, despite T’s age, her physical condition and the cocktail of drugs she was taking, the evidence of the medical experts treating her in hospital and of an experienced legal executive who witnessed her will, suggested that when T gave her instructions and executed her will, she was at all times aware of what she was doing and what she intended to do, and had the necessary mental capacity as prescribed in Banks v Goodfellow. Recollecting the property
T must have sufficient recollection of the extent of his estate and the nature of the property being disposed of in his will. This does not mean that T must be able to recount every single item of property owned by him, for as Coleridge J observed in Waters v Waters (1848), T is not required to possess ‘a specific and accurate knowledge of every atom of his property’. Rather, what is required is that he should ‘know generally the state of his property and what it consists of’. 58
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Recollecting the objects of T’s bounty
For a will to be valid, T must be able to recall those persons he is ordinarily obliged to provide for. Moreover, as Hannen J stated in Boughton v Knight (1873), he must also have ‘an understanding to comprehend their relationship to himself and their claim upon him’. The effect of this requirement is seen in Battan Singh v Amirchand (1948). T, after contracting tuberculosis, made a will leaving his estate to his nephews. Five weeks later, he made a new will in favour of two friends, declaring that he had no relatives. When he made the new will, T had been severely weakened by the disease and died the next day. Held, the will was invalid, since T’s mind was so enfeebled by disease when he made it that he could not recollect the objects of his. bounty. Also relevant in this connection are more recent cases such as Wood v Smith (1992) and Colucci v Bayliss (1998). In this latter case, T made a will in 1978 leaving legacies of £3,000 to each of his nieces and nephews (including the defendant) and the residue of his estate to the claimant. In 1982, he suffered a stroke and was admitted to hospital. When the defendant visited T in hospital, he told her he had not made a will. When she inquired of P’s solicitor (S1), he informed her of the 1978 will. Instead of reminding T of this earlier will, the defendant informed her own solicitor (S2) that T wished to make a new will leaving his estate to his nieces and nephews in equal shares and to this end arranged for S2 to visit T in hospital. T’s doctor doubted his mental capacity and refused to be present when the will prepared by S2 was executed. Just before execution, T again commented that he had never made a previous will and S2 made no response, even though he now knew of the 1978 will. After T’s death, the claimant challenged the validity of the 1982 will. The court found in the claimant’s favour, holding that T’s condition, as typified by his failure to recollect that he had made an earlier will in the claimant’s favour, showed that T clearly lacked the mental capacity to make a will. It is, however, noteworthy, as Erskine J emphasised in Harwood v Baker (1840), that where T is well aware of the objects of his bounty, but forms an intelligent purpose to exclude them, this does not render the will invalid. Delusions which operate to distort the mind
A delusion is a deep-seated but irrational belief which cannot be eradicated by reasoned argument. Delusions have been held to invalidate a will (or a disposition in a will which is attributable to the delusion) in cases such as: 59
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However, it emerges from cases such as Banks v Goodfellow and Brown v Porau (1995) that the fact that T suffers from delusions will not invalidate his will, where it does not appear that such delusions have had an effect on the manner in which T’s property has been disposed of. The degree of soundness
The courts do not insist that T must exhibit the highest level of soundness of mind before he is competent to make a will. All that is required is that T must be able to discern and judge, as they apply to his situation, all those matters and circumstances which 60
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go into making a will. In effect, the issue of whether T is of sound disposing mind will be dealt with according to the facts and circumstances of each case. T may have a sound disposing mind where his will is simple and straightforward, but the position might well be different where the will is highly complex and technical. In Re Park’s Estate (1954), for instance, T, while a widower, made a will in favour of his closest relative. He then had a stroke, after which he was unable to look after himself and went through periods when his mind became confused. A short while later, he got married in the morning, made a new and complicated will in his new wife’s favour in the afternoon and died that night. The court, while accepting that T might well have had the capacity to make a simple will, held that his capacity did not extend to the complicated will under consideration. When must the testator have the capacity?
T is required to be of sound disposing mind at the time he executes the will. Once this is the case, the will is not invalidated by the fact that T’s mental state deteriorates rapidly after the will has been executed. Equally, where T’s general mental condition is such that he would not ordinarily be regarded as having a sound disposing mind, but he happens to execute his will during a lucid interval, it has been held in cases such as Chambers and Yatman v Queens Proctor (1840) and In the Estate of Walker (1912) that the will is valid. The requirement of sound disposing mind at the time the will is executed is relaxed where the rule in Parker v Felgate (1883) applies. The effect of this rule is that where T, while being of sound mind, instructs his solicitor to prepare his will, but is no longer of sound mind when executing it, this does not invalidate the will, provided that: •
it was duly prepared in accordance with T’s instructions;
•
at the time of executing the will, T was able to understand that he was executing a will prepared pursuant to his instructions, even if he no longer remembered what precise instructions he gave or understood the true import of the dispositions in his will.
In this case, T during interviews with her solicitor gave instructions concerning the preparation of her will. Before the will was prepared she became very ill and went into a coma. While she was still comatose, the will was prepared and brought to her bedside. Her doctor roused her from her coma, told her the document was her will and asked whether she wished a lady friend to sign on her 61
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behalf. She said yes and the will was signed and attested. It was held, applying the above rule, that the will was valid. The courts are however unwilling to pronounce a will valid on the basis of this rule, where the evidence suggests it was executed in suspicious circumstances, as happened in Battan Singh. Proving the testator’s state of mind
In Barry v Butlin (1838), Parke B declared that the party seeking to propound a will bears the burden of satisfying the court that T has the mental competence to make a will. In this connection the following presumptions may come into play: (a) The presumption of rationality: Where the will is rational on its face, T is presumed to have been of sound disposing mind when executing it. In effect, the burden shifts to the party disputing the validity of the will to prove T’s incompetence. In Symes v Green (1854), T’s will was challenged by his nephew, N. The will was rational and correctly executed and the burden thus fell on N to prove T’s incompetence. N was able to do so by proving that when T made the will, he was suffering severe mental disturbance brought on by the belief that he was eternally damned because he had received Holy Communion in a sinful state. Conversely, where the will is irrational on its face, T is presumed not to have been of sound disposing mind and it falls on the party propounding the will to rebut this presumption. A difficulty that arises here is that English law recognises the prerogative of testators to make wills which ordinary persons might consider eccentric or capricious. Given that such eccentricity or capriciousness does not in itself signify a lack of mental capacity, the problem lies in distinguishing it from the sort of irrationality which raises the presumption against soundness of mind. As a general rule, it was suggested in Mudway v Croft (1843) that eccentricity had to be judged against T’s whole life and habits, such that a disposition which on its face might appear irrational, might in the light of his lifestyle and habits be attributed to his eccentricity. This is reinforced by Austen v Graham (1854), where T’s brother who was his sole relative received very little in his will since T chose to leave most of his estate to the Turkish Ambassador for the poor in Constantinople and to erect a monument to T in that city. It was held that the will would have been considered absurd and irrational in a Christian who lived according to English 62
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habits, but was perfectly understandable as T had in early life adopted the manners and mode of living of a Muslim. (b) Presumption of continuance of mental state: If there is evidence that T was mentally competent prior to making the will, it is presumed that he remained competent at the time he executed the will. Conversely, where there is evidence that T was of unsound mind before the will was made, he is presumed to have been incompetent when executing it. This latter presumption may, however, be rebutted by showing that T had fully recovered his mental health or was having a lucid interval at the time of execution. Does a solicitor owe a duty of care to ensure that a testator whose will he prepares is of sound disposing mind?
Mary Collins asserts in (1995) NLJ, 15 October, pp 1512–14 that ‘Solicitors, legal executives and others who prepare wills professionally must take account of the duties placed on them in the tort of negligence to beneficiaries and intended beneficiaries to ensure that the testator’s wishes are carried out. This includes compliance with formalities such as witnessing the will; ensuring that technical terms used in the will are accurate and their meaning and effect is clear [and] that instructions for the preparation of a new will are complied with efficiently and accurately’. An issue which has recently arisen in Worby v Rosser is whether liability can equally be affixed to a solicitor in negligence for any lack of care on his part in drafting and arranging for the execution of a will which ultimately turns out to be invalid because the testator was not of sound disposing mind. In this case, T had made a will in 1983 under which his two children, R and D, and their mother, A (who were the appellants) were the chief beneficiaries. A was also an executrix of this will. In 1989, Rosser who was a solicitor, prepared another will. In this will, T appointed his accountant, Tuli, and Rosser as his executors and left a sizeable gift to Tuli, which substantially reduced the entitlement of the appellants. The appellants succeeded in getting the 1989 will set aside by the court on the ground that at the time of its execution, T lacked testamentary capacity, did not know and approve of its contents and was unduly influenced by Tuli. The court ordered Tuli to pay costs of £250,000 incurred by the appellants but, as he was unable to pay, the appellants sought to recover these costs from Rosser. In so doing, they contended that in drafting and 63
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arranging for the execution of this will, Rosser had failed to take reasonable care to ensure that T was of sound mind and free from undue influence and that it was this professional negligence on Rosser’s part that caused them to incur the costs of challenging the 1989 will. The Court of Appeal, however, rejected the appellant’s claim, holding that there was no authority establishing that a solicitor engaged in the preparation of a will owes the testator or any beneficiaries a duty of care to ensure that the testator had the requisite testamentary capacity. This decision has been called into question by Mary Collins (1995) NLJ, 15 October, pp 1512–14, who declares that it ‘produces a lacuna in the law and one which should be filled by the House of Lords imposing on the solicitor a general duty to make reasonable inquiries of the testator or others as to the testator’s state of mind and intentions’.
Intention to make a will (animus testandi) It sometimes happens that T possesses the requisite testamentary capacity, but that his will is nevertheless invalid because it fails to represent T’s true intentions, either: •
because there was no knowledge and approval on T’s part; or
•
because it was not the product of T’s free will.
Knowledge and approval
Even where T would ordinarily be considered to be of sound disposing mind, cases like Hastilow v Stobie (1865) and Guardhouse v Blackburn (1866) have held that probate may still be refused if it appears for some reason, that he did not know and approve of the contents of his will. Knowledge and approval is especially material where a will was prepared by some other person and signed by T, in view of the possibility that the party who prepared the will may deliberately have varied or genuinely misunderstood T’s wishes. Proving knowledge and approval
As explained by Lord Penzance in Cleare v Cleare (1969), the onus of proving knowledge and approval lies with the party propounding the will. Basic presumption
Where the evidence suggests that T was of sound mind and the 64
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will was duly executed, this raises a rebuttable presumption that he knew and approved of its contents: see Barry v Butlin (1838); Guardhouse v Blackburn; and Cleave v Cleare. Situations in which knowledge and approval will not be presumed:
This presumption does not, however, come into play where: (a) the circumstances surrounding the execution of the will are such as to excite the suspicion of the court; (b) there is a mistake in the will or its execution; or (c) the testator was dumb, blind or illiterate. Suspicious circumstances Where will is prepared by beneficiary The most obvious situation in which suspicions are aroused is where a will is prepared by a person who receives substantial benefits under it. An early instance in which a situation of this nature arose was in Ingram v Wyatt (1828), a case that has recently been analysed by Jackson in (1998) NLJ, 9 January, p 34. In this case, T’s will contained a number of pecuniary legacies to certain of his relatives (including a legacy of £2,000 to his sister, I) as well as a gift of his entire residuary estate to his attorney, W. T subsequently executed a codicil prepared by W which revoked the legacy to I but otherwise confirmed the will (thereby enlarging W’s benefit even further). On T’s death in 1824, I contested the will and codicil, arguing that in view of W’s role in obtaining these instruments, the presumption of the law must be against their validity. In his judgment, Nicholl J accepted that W’s involvement in the preparation of the will and the subsequent administration of T’s estate aroused sufficient suspicion to warrant the refusal of probate. On appeal, however, the court took the view that in the absence of clear evidence of fraud, it would be inappropriate to expose a lawyer like W to the professional consequences of discrediting him by setting aside the disputed will and codicil, and on this somewhat dubious premise, the court set aside the decision of Nicholl J and ordered that the will should be admitted to probate. Even though Nicholl J was overruled on appeal, his position has subsequently been vindicated in cases such as Fulton v Andrew (1875) and Wintle v Nye (1959). In Fulton v Andrew, T executed a will in 1870 which was in the writing of one of his executors W. W received a legacy of £100 and also a share in T’s residuary estate. T’s nephew challenged the validity of the will but it was admitted to probate. It was held that the suspicion, which arose from the fact 65
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that W who, wrote out the will was to receive such substantial benefits under it had not been allayed and the will should not therefore have been admitted to probate. Also, in Wintle v Nye (1959), T made her will in 1937, soon after her brother’s death. While her brother was alive she relied entirely on him and the family solicitor N to deal with her affairs. T at first instructed N to prepare a will in which he and a bank would be joint executors and under which her residue would go to named charities. After several other interviews between them, N drew up a will, which named him as sole executor, which T duly executed. The will contained certain annuities and charitable legacies and gave the residue to N. T later executed a codicil revoking the charitable legacies in her will, so that when she died, the bulk of her estate which was valued at £110,000 went to N under her will. When the will was challenged, the House of Lords held that the circumstances of the case raised grave suspicions against N who thus had to prove that T knew and approved of its contents. N failed to prove this and the will was therefore declared invalid. As Viscount Simonds declared in this connection: It is not the law that in no circumstances can a solicitor or other person who has prepared a will take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will.’ (For a masterful and incisive critique of Wintle v Nye, see Kerridge: ‘Wills made in suspicious circumstances: The problem of the vulnerable testator’ [2000] 59(2) CLJ, pp 310–34. While the courts have not been slow in cases like Fulton and Wintle to affirm the need to prove T’s knowledge and approval where the party who prepares the will benefits thereunder, it has also been made clear in Barry v Butlin that it is not every time a person who prepared a will receives a benefit that this raises sufficient suspicion to require him to prove T’s knowledge and approval. For example, there is little ground for suspicion if a will prepared by a solicitor for a wealthy and experienced businessman contains a modest legacy in the solicitor’s favour. Where a substantial beneficiary did not prepare the will but was active in some other respect The courts have decided in cases such as Brown v Fisher (1890) and Bhattan Singh v Amirchand that where a substantial beneficiary did not prepare the will but was instrumental in procuring it (for example, where the substantial beneficiary takes T to a solicitor chosen by him or relays T’s wishes to T’s solicitor), this arouses sufficient suspicion to require proof of T’s knowledge and approval. A more recent case that is equally relevant is Hart v 66
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Dabbs (2000). Here, the claimant was the son of T’s friend and the principal beneficiary under T’s disputed will. The will had been prepared by a friend of the claimant and the persons who had acted as witnesses had done so at the request of the claimant rather than T. The court held that the circumstances surrounding the preparation and execution of the will were sufficiently suspicious to impose on the claimant the burden of proving that T knew and approved of the contents of the will. The court, however, held that the claimant had discharged this burden by proving that the instructions for the will had emanated from T who was fully aware of its contents. Where party who prepared will did not receive any benefit but a close relation of his was a substantial beneficiary Suspicions may also be aroused where the party who prepared the will or procured its execution receives no benefit under it but a close relation of his receives substantial benefits. In Tyrell v Painton (1894), T made wills in 1880 and 1884 naming B1 as the main beneficiary. By 1890, T had become disenchanted with B1’s lifestyle and in 1892 made a new will leaving all her estate to B2. Two days later, B1’s son and a friend visited T and convinced her to execute a will prepared by the son, giving her estate to B1. At T’s death, this last will was challenged by B2. It was held that this will was executed in suspicious circumstances and would fail since B1 was unable to show that T knew and approved of the contents of the will. Also, in Re Ticehurst (1973), T made a will leaving her three houses to their respective tenants. When she was 82, she made a new will leaving the houses to relatives. She did not see the solicitor who prepared the will but relayed her wishes to him through the wife of one of the beneficiaries under the new will. The court viewed the circumstances in which the new will was executed as suspicious and did not feel that the evidence adduced sufficiently dispelled this suspicion so as to enable the will to be admitted to probate. See, also, Thomas v Jones (1928) and Re A Solicitor (1975). Effect of the Law Society Guide to Professional Conduct (1993) Legitimate professional concerns have arisen regarding the propensity displayed by avaricious solicitors in cases such as Ingram v Wyatt; Wintle v Nye and Re A Solicitor to benefit substantially from the estates of clients whose wills they have prepared. These concerns have impelled the Law Society to prescribe stringent guidelines to be followed in cases where clients propose to leave substantial benefits in their wills to their 67
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solicitors. These guidelines stipulate that where a client intends to make a gift by will to his or her solicitor, or to the solicitor’s partner, or a member of staff or to the families of any of them and the gift is of a significant amount, the solicitor must advise the client to be independently advised as to that gift, and if the client declines, must refuse to act. However, as Kerridge shrewdly observes at p 325 of his article on ‘The vulnerable testator’, while the Law Society’s rules should ensure that solicitors will now curb their cupidity when preparing wills, the problem remains that other people not being subject to these rules may still be tempted to take advantage of vulnerable testators. The position where the will has been read over to T Where the presence of suspicious circumstances renders it necessary to prove T’s knowledge and approval, one possibility that is open to a party seeking to assert the validity of the will is to establish that the will was read over by or to T. In early cases such as Guardhouse v Blackburn and Atter v Atkinson, the courts proceeded on the premise that once the will had been duly read over, this was conclusive proof of T’s knowledge and approval. Borkowski expresses surprise (at p 77 of his book) that such a rule should have emerged, given the potential for its abuse and the uncertainty as to what ‘reading over’ might entail. The stance taken in these cases was subsequently modified in Re Morris by Latey J, who acknowledged that the reading over of a will should be treated as weighty evidence of T’s knowledge and approval rather than the strict rule that reading over was conclusive evidence of such knowledge and approval. More recently however, in Chana v Chana, the court without alluding to the view of Latey J reiterated the rule that the reading of a will by or to T would be sufficient to confirm knowledge and approval, citing the authority of the aforementioned cases of Guardhouse and Atter. Significantly however, the court in Chana placed its own gloss on the rule by stating that knowledge and approval would be confirmed by reading over ‘unless there are suspicious circumstances’. It could be argued in the light of this that the court has not deviated as far as may first appear from the position adopted by Latey J in Re Morris. Mistake Mistake concerning execution of will Where a will appears on its face to have been duly executed by a testator who is mentally capable, the presumption that he knew and approved of its contents may be displaced where it emerges that in executing the will he was labouring under a mistake. Such a mistake may arise for instance where a will prepared for T1 is 68
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executed by T2 while T1 executes a will prepared for T2. A mistake of this nature renders both wills invalid Such a mistake arose, for instance, in In the Goods of Hunt (1875). T1 drew up separate wills for herself and her sister T2. By mistake, T1 executed the will prepared for T2. The court refused probate of this will on the ground that T1’s mistake meant that she could not properly be said to have known and approved of the contents of the will she had executed. See, also, Re Meyer’s Estate (1908). Unintended inclusions and exclusions Mistakes in a will may also result from the unintended inclusion of certain words or provisions in the will or unintended omission of words or clauses which T had wanted to include in the will. Unintended inclusion The court may rectify the will by ordering it to be read as if the words which were mistakenly included had been deleted: This is seen for instance in from Morrell v Morrell (1882). Here, T instructed his solicitor to draw up a will leaving his 400 shares in X Ltd to B. The will when drafted read that ‘forty shares’ had been left to B. The will was admitted to probate without the ‘forty’, thus entitling B to take all the shares as T intended. Also, in Re Oswald (1874), T executed a later will without wishing to revoke her earlier one. Unknown to her the later will contained a revocation clause. The court held that the revocation clause was unintentionally included in the will and therefore ordered the later will to be admitted to probate without this clause, thereby preserving the earlier one. Again, in Re Phelan (1972), T executed a home-made will in June 1968 with B1 and B2 as the main beneficiaries. He executed three further wills one after another a month later, in each of which he left certain investments to B1 and B2. The later wills were on printed will forms and in each case T did not strike out the standard clause in the form revoking all earlier wills. Probate was sought with the revocation clauses in the later wills struck out on the ground that they were left without T’s knowledge and approval and probate was granted on this basis by the court. By contrast, in Collins v Elstone (1893), T, who had made an earlier will, later made a new will containing a revocation clause. It was held that the earlier will stood revoked, since the court found that T knew of and intended to include the revocation clause, but was mistaken as to its effect, having been wrongly advised that it would not revoke her first will but only a specific portion of it which she no longer wished to stand. 69
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Unintended omission In the period before 1983, where T had executed a will in which he unintentionally excluded certain words, phrases, etc, the court had no power to rectify it by ordering their inclusion. The position in this connection is exemplified by cases like Re Boehm (1891). Here, T intended to leave £10,000 to each of his daughters G and F, but the material clauses in the will referred only to G and made no mention of F. Whereas in the ‘inclusion cases’, the court was able to remedy the mistake by deleting the offending clause, in the present case, it would have had to rectify the will by ordering F’s name to be inserted into the relevant clauses. The court held that it had no power to make such an order despite the obvious mistake. More recently, in Re Morris (1971), T made a will containing a large number of bequests and devises. She later asked her solicitor to draw up a codicil revoking the gifts in cll 3 and 7(iv) of the will. The codicil when prepared read ‘I revoke cll 3 and 7 of my will’. Admitting the codicil to probate as it stood would have meant that 19 other bequests in cl 7 would be revoked. The court in line with Re Boehm held that it could not rectify the codicil by inserting the numeral (iv). Its only power was to delete unintended words and it could use this to achieve as nearly as possible what T had been intended by striking out cl 7 entirely from the codicil. Also, in Re Reynette-James (1976), the will executed by T mistakenly omitted 33 crucial words dealing with her residuary estate and no rectification was allowed. Rectification under s 20(1) of the Administration of Justice Act (AJA) 1982 By virtue of this statutory provision, the courts now possess a limited power in the case of wills coming into effect after 1982 to rectify omissions which were due to clerical errors or failure to understand instructions by permitting the inclusion of the missing words/phrases. In Wordingham v Royal Exchange Trust Co (1992), for instance, T wished to make changes to her existing will and her solicitor undertook the task of preparing a new will reflecting these changes. While transcribing those portions of the old will T wanted to retain into the new will, the solicitor inadvertently missed out one clause. T executed the new will without noticing the omission. The court held that there had been a clerical error, which could be rectified under s 20 of the AJA by inserting the missing clause. More recently, in Walker v Medlicott (1999), T visited her solicitor’s office without prior appointment, intending to make a will. A note of her testamentary wishes, which she carried with 70
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her, indicated that she wished to leave her house and its contents to her, nephew BW (the claimant). After interviewing T, the solicitor, M, drafted the will that same evening. The will, which was later executed by T, contained no specific devise of the house to BW, but instead named him as one of six beneficiaries among whom T’s residuary estate was to be divided. BW claimed the omission of the devise of the house was unintended by T and was the result of M’s negligent drafting of the will. Both the trial court and the Court of Appeal held that the alleged negligence on M’s part had not been established. The Court of Appeal went on to hold that even if there had been such negligence, it would have been open to BW to apply under s 20 for rectification by inclusion of the omitted gift. (This presupposes of course that the solicitor’s negligence entailed a failure on his part to understand T’s instructions or a clerical error in preparing the will.) Only after exhausting this remedy would it become appropriate for BW to bring an action in negligence (for example, to recoup the costs of the rectification action). The courts may also have recourse to s 20 when dealing with applications to delete words which were mistakenly included in a will: see Re Segelman (Decd) (1995). Here, T instructed his solicitor to prepare his will. Of his own initiative the solicitor used words which would have restricted the benefit to a certain class of T’s relatives. T thereafter drew up a list of relatives he intended to benefit that was wider than this class. The solicitor did not change the relevant words to reflect this fact before asking T to sign. Held, the words had been mistakenly included and could be deleted by virtue of s 20. An application for rectification must ordinarily be made within six months of the date when probate of the will is granted. In exceptional circumstances however, the court may see fit to grant leave for an application to be made out of time, as happened, for instance, in Chittock v Stevens (2000). Here, T made a will leaving his estate to his wife, B1, but if she did not survive him for more than 28 days then to his children and stepchildren. Just before he died, T instructed his solicitor to make a new will. The terms of the instructions did not affect the disposition in B1’s favour but when the new will was drafted it erroneously omitted the clause in the original will in B1’s favour. When this was discovered after T’s death, B1 at first decided not to seek rectification of the new will. She did so because T had assured her that he had put the matrimonial home (which was the main asset she would have inherited from him under the will) into their names as joint tenants and so it would in any event devolve on B1by right of survivorship. It was only more 71
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than six months after T’s death that it emerged that he did not get round to conveying the matrimonial home into their joint names, so that unless the new will was rectified, this property would pass to other persons under its terms. The court decided in the circumstances that it would grant B1 leave to apply for rectification outside the period stipulated in s 20(2). Commentators like Borkowski (at p 85) have argued that the scope for rectification under s 20 is unduly restrictive. The truth of this assertion can be borne out by the following example. Assuming T intends to leave £10,000 in his will to B and the solicitor who draws up the will, colluding fraudulently with C, states in the will that the £10,000 is to go to C. If T executes the will without noticing this fact, it will be possible to rectify the will by striking down the gift to C, but because the omission of B’s name was not caused by a clerical error or a failure to understand instructions, rectification under s 20 will not extend to inserting B’s name in the gift in place of C’s. Dumb, blind and illiterate testators It is well established that a dumb, blind or illiterate person may execute a will drawn up for him by another person. Where this is the case, the courts will not presume that the testator knew and approved of the contents of the will just because he was of sound mind and the will appears to have been duly executed. The person propounding the will must specifically prove such knowledge and approval. Thus, in In the Goods of Geale (1864), it was held that if a dumb testator gave instructions for his will by signs, the court will require evidence as to the signs used to ensure that the testator knew and approved of the contents of the will. In this case, T was deaf, dumb and illiterate, but was able to converse in an intelligible manner with friends and family and the evidence suggested that he was shrewd and intelligent. He executed a will that had been prepared for him. The evidence disclosed that provisions of the will had been explained to him using appropriate mimes and signs and the court accepted that he understood the contents at the point of execution. The will was thus held to be valid. This may be contrasted with Deye v Avery (1997). Here, B sought to establish validity of T’s 1998 will under which she was the sole beneficiary of his residuary estate. At the time the will was made, T had been severely paralysed by a stroke. T was accompanied to his bank by B, where he executed the will that had been prepared by a bank employee even though it had never been read over to him. Given that T was unable to speak and that his ability to communicate had been severely impaired, the 72
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failure to take him through the will slowly and carefully, in the court’s view, warranted the conclusion that he did not know and approve of its contents and the will accordingly failed. With regard to blind and illiterate testators, the need to establish knowledge and approval has been emphasised in such cases as Fincham v Edwards (1842) as well as in r 13 of the Non-Contentious Probate Rules 1987. The burden of proof is usually discharged by evidence showing that the will was read over to the testator before execution. In Christian v Instiful (1954), for instance, T, who was almost blind, handed a document to a solicitor’s clerk to type up as his will. The evidence disclosed that before signing the typed document, T had it read over to him by the clerk. This was accepted as proof that that T knew and approved the contents of the will. Such evidence is often supplied by means of an attestation clause in the will of a blind or illiterate testator to the effect that the testator signed the will ‘after the same had been read over to him in our [that is, witnesses’] presence and appeared to be perfectly understood and approved by him in the presence of us both’. Absence of free will Fraud
Where a testator was induced by a fraud perpetrated by another person to dispose of his property by will in a particular manner, the will is open to challenge on the ground that it is not the product of the testator’s free will. Thus, in Butterfield v Scawen (1775), where T in his will named B as the principal beneficiary but was led to amend the will to revoke B’s gift by false claims that she had tried to poison him, the amended will was refused probate on the ground of fraud. Equally relevant is Wilkinson v Joughin (1866), where W who was already married went through a ceremony of marriage with T who then made a will in her favour. It was held that since T had been fraudulently induced to believe that he and W were man and wife, this will was invalid. Coercion and undue influence
Coercion or duress Where a testator is coerced into making a will by the application or threat of force, the absence of free will on his part would invalidate the will or the part of it that he was coerced into making. Thus, 73
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where a loaded gun is pointed at T by B with the result that T is compelled to make a will leaving his entire estate to B, such a will is unlikely to be admitted to probate. Undue influence Where no force or threats have been employed but undue influence of a more subtle kind has been exerted against T, this may also invalidate his will. In Wingrove v Wingrove (1885), for instance, Hannen P suggested that the persistent badgering of a weak and feeble testator in his last days, which prompts him to dispose of his property in a particular manner just to be left in peace, will amount to the exertion of undue influence. Pressure v persuasion The courts have sought to differentiate between undue influence which renders a will invalid and ordinary persuasion which does not. The distinction between the two was well explained by Lord Penzance in Hall v Hall (1868). According to him, persuasion involves an ‘appeal to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution or the like’; while undue influence involves exerting ‘pressure of whatever character, whether acting on the fears or the hopes, so…as to overpower the volition without convincing the judgment’. In similar vein, the court sought to emphasise in Parfitt v Lawless (1872) that there is nothing illegal in one party seeking to press his claims on another in the hope that the latter will provide for him in his will as long as the manner in which this is done ‘falls short of coercion’. Although this formulation has some merit, the dividing line between persuasion and pressure is not as clear-cut as it might suggest and difficulties could conceivably arise in real life situations regarding the point at which mere importunity assumes a coercive dimension. The type of case in which the plea of undue influence will usually succeed are those cases involving testators who have been rendered particularly vulnerable by failing mental or physical health or emotional difficulties. This is evident, for instance, from Re Harden (1959), where T, who having recently been widowed, fell prey to the machinations of B, a spiritualist medium who claimed to be able to make contact with her late husband. B was able to convince T that her late husband had been passing messages through him which induced her to leave most of her estate to the medium. The court found no difficulty in detecting undue influence. Also, in Simpson v Simpson (1989), T, having become completely reliant on his third wife B after developing a malignant brain rumour, transferred most 74
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of his wealth to B in his lifetime and provided in his will that the rest of his estate was to pass to B. These dispositions were invalid, because B was found to have exerted undue influence. Equally, in Hampson v Guy, undue influence was found to exist where an elderly testatrix of feeble mental capacity left everything to the nuns with whom she resided. The burden of proving fraud and undue influence
Whereas it is incumbent on a person seeking to propound a will to satisfy the court that it was made with the testator’s knowledge and approval, he is not at the same time required to prove the absence of fraud or undue influence. Instead, the onus lies on any party who alleges fraud or undue influence to furnish the necessary proof. A plea of fraud or undue influence ought not to be made lightly, since it is clear from Craig v Lamourex (1920), Re Cutliffe’s Estate (1959) and Killick v Pountney (1999) that cogent evidence will be required by the court in order to sustain a plea of fraud or undue influence. There are several recent cases in which the courts have had to determine whether a will was procured by undue influence. The first is Colucci v Bayliss (1998), in which apart from deciding that T lacked the requisite testamentary capacity, the court also held that the defendant’s dealings with T during her visits to him in hospital while he was recovering from a stroke pointed to improper pressure on her part which would also justify a plea of undue influence. The second is Killick v Pountney. Here, T was the archetypal example of what Kerridge described as ‘the standard vulnerable testator’ (see Kerridge [2000] 59(2) CLJ 310). He died in 1994 aged 87. In the last few months of his life, he had been suffering from senile dementia. Eleven months before his death, T had made a will leaving his entire estate to B1 (in whose house T had lodged for many years) and B2 (who was B1’s son). This will was challenged by G who was T’s nephew and closest living relative and who alleged that it had been procured by the exertion of undue influence by B2. After examining several leading cases in which the principles governing undue influence were expounded, the court: •
reiterated that the burden of proof in this case lay with G as the party who had alleged undue influence;
•
re-affirmed the principle that while undue influence could be proved on the balance of probabilities, the seriousness of such an allegation meant that cogent evidence had to be adduced; and
•
emphasised the point that it was not enough to show that B2 75
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was in a position to exert pressure on T; it had to be shown that B2 had in fact exerted such pressure, thereby inducing T to make the disputed will. Having carefully reviewed all the evidence, the court concluded that G had satisfied the demanding level of proof required to sustain his claim that T’s will had been procured by undue influence. In so doing, the court took particular account of such material factors as: •
the unflattering picture which emerged of B2’s character as typified by the unscrupulous manner in which he ran up debts in T’s name and his lack of candour when pressed by T on the repayment of these debts;
•
T’s disenchantment and feeling of bitterness at the cavalier manner in which he had been treated by B2 which made it highly unlikely that he would willingly seek to benefit B2 in his will;
•
T’s vulnerability in executing the disputed will at a time when he was in clearly in ill health and mentally enfeebled;
•
the significant role played by B2 in the process leading up to the execution of the disputed will;
•
the considerable influence which B2 clearly exerted over T and his affairs as evidenced by:
the embargo placed by B2 on any contact between T and members of his family including G in the period leading up to the execution of the will;
T’s adamant refusal to sign the will until he had first consulted B2.
Finally, there is Biggins v Biggins (2000). T in his original will had made his son (S) his sole beneficiary. Soon after his wife died, T was visited by his brother (B) and a short while later, B’s daughter prepared a draft will for T under which T’s bungalow was left to S, while his residuary estate was to be distributed in three equal shares between S, B and B’s family. T made some amendments to the draft. T then sent it to his solicitor with instructions to prepare a new will for him which he executed in due course. S challenged the validity of the new will, claiming that B had procured it through the exertion of undue influence when he visited T after the death of T’s wife, when T was particularly vulnerable. However, the court rejected S’s claim and upheld the validity of T’s 76
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new will. The court agreed with S that at the time of B’s visit, T was unwell and grief-stricken, but found no evidence that during the period in question T was sufficiently vulnerable to have been susceptible to B’s undue influence. In coming to this conclusion, the court attached particular significance to two proven facts, namely: •
that when B’s daughter delivered the draft will to T, he had retained sufficient independence of mind to amend it in several respects before sending it to his solicitor;
•
that upon receiving the draft will from T, his solicitor had queried his instructions but was informed by T that he considered the devise of his bungalow to S to be sufficiently generous and that he had made up his mind to provide for B and his family as well.
77
4 Revocation, Alteration, Revival and Republication of Wills You should be familiar with the following areas: • the four methods of revocation provided for in the Wills Act • the nature and effect of conditional revocation • the position of privileged testators with regard to revocation • the circumstances in which a will may be altered • the procedure for reviving a will and the effect of revival • the procedure for republishing a will and consequences of republication Even where a testator who is of sound disposing mind has executed a will in the manner prescribed by the Wills Act (WA) 1837, the actual operation of the will at his death may be materially affected by certain events occurring after the execution of the will, namely, the revocation, alteration, revival or republication of the will.
Revocation A duly executed will or codicil may be revoked: • by the testator’s subsequent marriage; • by a subsequent will or codicil; • by some other duly executed document declaring an intention to revoke; or • by destruction. Revocation by marriage is automatic, so that it need not be shown that the testator intended by his marriage to revoke his will. With the other forms of revocation, the testator’s act must be accompanied by an intention to revoke (animus revocandi). 79
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Revocation by marriage (s 18 of the WA)
Is revocation by marriage justified? Section 18(1) of the WA provides that a will shall be revoked by T’s subsequent marriage. Other significant changes in a person’s circumstances such as the birth of a child or winning the jackpot on the National Lottery do not automatically operate to revoke the will. The question therefore arises as to why marriage should have this effect. This issue was considered by the Law Reform Committee in its Report on the Making and Revocation of Wills (1980), where the following reasons were put forward in justification of the rule: •
marriage represents such a fundamental change in a person’s life with its attendant personal and financial responsibilities that it should be a time for starting with a clean slate;
•
a spouse and children should not be inadvertently be denied the entitlement they would have under the intestacy rules. Most people would wish their spouse and children to inherit their estate when they die, but may inadvertently omit to revoke premarriage wills that are often inconsistent with this intention. The rule in s 18 goes a long way towards safeguarding this intention. It enables a person whose pre-marriage will has been revoked to make a new will after marriage, with a view to providing for his spouse and children, and if he fails to do so, enables them to be provided for under the intestacy rules;
•
in any case, knowledge of this rule is fairly widespread and accords with the expectations of most people.
At the same time, however, as Borkowski points out in his book (p 127), the operation of this rule is sometimes problematic in this age of serial marriages. This is especially so in circumstances where a testator makes a will intended to benefit his children from one marriage but which, unbeknown to him, is automatically revoked by a subsequent marriages. He also points out that with the enactment of the Family Provision legislation, there is no longer a compelling need for an automatic revocation regime, since the possibility that a person’s spouse and children may be left unprovided for on account of some long forgotten pre-marriage will can now be remedied by an application for financial provision under the legislation. The position in respect of void and voidable marriages
A will is revoked not only where T’s subsequent marriage is valid, but also where it is voidable under s 12 of the Matrimonial Causes 80
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Act (MCA) 1973, since a voidable marriage is deemed to be effective until it is annulled. This is evident from Re Roberts (1978). Here, J was a beneficiary under T’s will executed in 1973 when T was 60. In 1974, T married E. T died in 1976 and E applied for a grant of letters of administration claiming that T had died intestate. J contended that the marriage was void and did not therefore revoke the 1973 will, as T was suffering from senile dementia when it took place. It was held that such a condition would make the marriage voidable under s 12(c) of the MCA and that an order annulling it would not operate retrospectively and would not therefore affect the revocation which occurred from the date of the marriage. On the other hand, a marriage that is void ab initio cannot revoke an earlier will, because, in the words of Lord Greene MR in De Reneville v De Reneville (1948), ‘[it] will be regarded in every court...as never having taken place’. Thus, in Mette v Mette (1859), for instance, T’s marriage to his late wife’s sister, which was void because it fell within the prohibited degree of affinity, was held not to have revoked his earlier will. See, also, Warter v Warter (1890). Non-revocation of wills made in expectation of marriage
A vital exception to the rule in s 18 was enacted in s 177 of the Law of Property Act (LPA) 1925, which provided that ‘a will expressed to be made in contemplation of marriage shall not be revoked by the solemnisation of the marriage contemplated’. This has been superseded by s 18(3) of the WA (inserted into the WA by the Administration of Justice Act (AJA) 1982), which provides that ‘Where it appears from the will that at the time it was made the testator was expecting to get married to a particular person and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person’. Note in this connection: •
The fact that the will was being made in contemplation/ expectation of marriage had to be ‘expressed’ in (s 177) or ‘appear’ from (s 18(3)) the will. This would seem to indicate that where, for example, T, who is engaged to be married, makes a will which makes no reference whatsoever to this fact, but told some other person that he was about to marry and did not wish his will to be revoked by the marriage, such extrinsic evidence would be inadmissible.
•
The will must not merely show that T was thinking of marriage in 81
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general terms but that his contemplation/expectation of marriage related to a particular person. This is illustrated by Sallis v Jones (1931), where T simply stated in his will that it was made in contemplation of marriage without giving any indication as to the person he would be marrying. Held, this did not prevent the will being revoked by T’s marriage a few months later. •
Even if T has not specifically referred in his will to his contemplated/expected marriage, cases like Re Knight (1944) and Re Langston (1953) establish that where he leaves his entire estate to a particular woman, whom he thereafter marries and refers to her in his will as his ‘fiancée’ or his ‘future wife’, this signifies that the will was made in contemplation of his marriage to that woman. Accordingly, such marriage will not revoke the will.
•
The position is less clear-cut where T leaves his estate to a named person, described in his will as ‘wife’, but is not legally married to the person at the time. In Pilot v Gainfort (1931), T made a will leaving his estate to ‘DFP, my wife’. At the time, T was not married to DFP, but to another lady who went missing six years before. Eighteen months later (when T’s real wife had been missing for over seven years and thus presumed dead), he validly married DFP. Held, the will was made in contemplation of his marriage to DFP and was therefore not revoked by that marriage. As the editors of Theobald on Wills observed, the difficulty with this decision lies in the fact that the will did not signify that the marriage between the parties was contemplated as required by s 177, but rather implied that it had in fact taken place. This decision may be contrasted with Re Gray (1963). Here, T went through a marriage ceremony with E. Although this marriage was void (as he was already married), he made a will in which he left his estate to E, describing her as his wife. Many years later, T’s real wife died and T then went through a valid marriage ceremony with E. Held, T’s will was not made in contemplation of his later valid marriage to E and was thus revoked by that marriage.
•
The reference in s 177 to ‘a will expressed to be made in contemplation of a marriage…’ was construed by Megarry J in Re Coleman (1976) to mean that the non-revocation rule would apply only if the whole will had been expressed to be made in contemplation of marriage. Here, T left a sizeable part of his estate to MJ whom he named in his will as his fiancée and the residue to his brother and sister. His marriage to MJ two months later was held to have revoked the will, since it was the disposition to MJ and not the will as a whole,
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which had been made in contemplation of marriage. •
This decision was widely criticised, not least by the Law Reform Committee in its 1980 Report. The AJA, which was enacted in response to this Report, introduced a new s 18(4) into the WA, which provides that where it appears from the will that at the time it was made, T was expecting to be married to a particular person and intended that a disposition in the will should not be revoked by his marriage: •
that disposition shall take effect in spite of the marriage; and
•
all other dispositions shall take effect unless it appears from the will that T intended them to be revoked.
This reverses the effect of Re Coleman in respect of wills made after 31 December 1982. Non-revocation of testamentary powers of appointment contained in wills made before marriage
Where T employs his will to exercise a power of appointment, s 18(2) of the WA provides that any disposition he makes in the exercise of this power shall not be revoked by T’s subsequent marriage, unless the property so appointed would in default of appointment pass to his personal representatives. This provision superseded a similar provision in the original s 18 of the WA. The underlying purpose of the provision is to ensure that an appointment by will is revoked by T’s subsequent marriage only where T’s new family would be in a position to benefit from the property in default of appointment. Its effect can be illustrated in the following example: •
T’’s father gives £100,000to T for life with a power to appoint the capital by will to whomsoever T may choose and declares that in default of appointment, the capital is to devolve as part of T’s estate. Assuming T by his will appoints the £100,000 to his mistress, M, but subsequently marries W, the marriage will operate to revoke this disposition in accordance with s 18(1), since, in default of appointment, the £100,000 would on T’s death devolve on his personal representatives as part of his estate, to which W as his spouse would normally be entitled, either under a later will made by T or under the intestacy rules.
•
The position would be different if T’s father gives the same £100,000 to T for life with power of appointment to 83
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whomsoever T may choose, but states that on default of appointment, the money is to go to T’s brother B. Assuming T again makes an appointment in M’s favour and later marries W, the effect of s 18(2) is that this appointment will not be revoked by the marriage, as the property would in default of appointment go not to W and his children, but to B. Revocation by subsequent will or codicil (s 20 of the WA)
If T decides to revoke his will, in whole or in part, he may do so by executing a later will or codicil. Recently, in Re E (2000), Arden J reiterated the basic principles applicable to the revocation of a will by a subsequent will as follows: • • • • •
whether a prior will or codicil has been revoked by a later will or codicil is a matter of construction; there must be an intention to revoke on the part of the testator in making the subsequent will or codicil; extrinsic evidence is admissible to establish this intention; where a testator has executed more than one will the court should as far as possible construe them so that both may stand; if the instruments are so inconsistent that they cannot stand together (and it is not known which was executed last), neither can be admitted to probate.
The fact that a later will commences with the words ‘This is my last will…’ does not suffice to revoke earlier wills (see, for example, Cutto v Gilbert (1854)). Revocation will occur, only where a later will discloses an express intention to revoke an earlier will or where such an intention can be implied from the later will. Express revocation
Most well drafted wills contain a general revocation clause covering all previous testamentary dispositions made by T. Alternatively, a will may, in appropriate circumstances, contain a more restrictive clause which has the effect of revoking only a part of the will. For example, in In the Estate of Wayland (1951), the revocation clause was confined to T’s estate in England and did not apply to his Belgian property. While it is quite commonplace for a will to be expressly revoked by a subsequent will, s 20 also contemplates that a will may be revoked by a subsequent codicil. As seen from the case of Ball v Salaman (1995), a revocation by means of a codicil will be effective even if the codicil contains no further testamentary provisions, in 84
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which event the estate in question will devolve under the intestacy rules. Inoperative revocation clauses The fact that a subsequent will contains a revocation clause does not always ensure that the testator’s earlier will(s) are revoked on his death. In particular: •
An express revocation clause in a later will does not operate to revoke an earlier will, where the clause was unintentionally included in the will without T’s knowledge and approval. See Re Phelan (1972). The position is however different where T knew that a revocation clause was included in the later will, but was mistaken as to its effect. See Collins v Elstone (1893).
•
Where a subsequent will containing the revocation clause is a conditional will and the will does not come into force because the condition is not fulfilled, such a will would not operate to revoke any earlier wills made by the same testator. See In the Estate of O’Connor (1942).
•
Where the intention to revoke as expressed in the subsequent will is itself conditional and the material condition is not fulfilled, such a will does not operate to revoke any earlier will of the testator. The position with regard to the conditional revocation of wills is discussed further at pp 91–94.
Implied revocation
A will/codicil, which does not contain an express revocation clause, may impliedly revoke a previous will/codicil where: •
the provisions of the earlier one are simply reproduced in the later one, in which case the court will simply treat the latter as a substitute for the former;
•
the earlier and later wills contain provisions which are mutually inconsistent.
As Hannen P pointed out in Dempsey v Lawson (1877), the courts will in such circumstances feel justified in inferring that the testator intended the later will or codicil to be a substitute for the earlier one. Where the court that has to construe the two wills takes the view that the earlier will is wholly inconsistent with the later one, this causes the total revocation of the earlier will. In Dempsey v Lawson (1877), for instance, T made Will 1 in 1858 and Will 2 in 1860 (which did not expressly revoke Will 1). Both wills contained a number of bequests to the same Catholic charities, 85
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but a major legatee in Will 1 was not provided for in Will 2 and certain legatees in Will 1 were given smaller and different legacies. Held, that T’s intention as seen from the whole scheme of Will 2 was to revoke Will 1 in its entirety and substitute it with Will 2. See, also, Re Hawkesley’s Settlement (1934). Where Will 1 is only partially inconsistent with Will 2, Will 1 will be revoked only to the extent of the inconsistency. As Sir JP Wilde stated in this connection in Lemage v Goodban (1865), ‘If a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent’. An instructive case is In the Goods of Petchell (1874), where T executed Will 1 in 1869 in which she gave several small legacies to various relatives and left the residue of her estate to her daughter, D. Will 2, which T executed in 1871, had no revocation clause. It stated that the legacies to her relatives would now take effect on D’s death and added some other legacies, but did not dispose of T’s residuary estate. Held, when the wills were read together, Will 2 revoked Will 1 in so far as there were inconsistencies between then in respect of the legacies provided for in both wills. However, the gift of residue to D in Will 1 was not revoked by Will 2 which was silent on what should happen to the residue. See, also, Re Bund (1929). Finally, where T has executed two mutually inconsistent wills and there is no means of proving which is the later one (either because they are both undated or they both bear the same date), neither of them will be admitted to probate. See Re Howard (1944). Revocation by some duly executed document
It is contemplated by s 20 of the WA that a will or codicil may be revoked not only by a subsequent will or codicil but also by some writing (i) declaring an intention to revoke it and (ii) duly executed in the same manner as a will. The adoption of this mode of revocation was judicially considered by the courts in In the Goods of Durance (1872), where Lord Penzance declared that if a man writes to another ‘Go and get my will and burn it’, he shows a strong intention to revoke the will; and it follows that if the letter was duly executed it will operate to revoke the will. In this case, T made a will in England which he left with his solicitor when he later emigrated to Canada. While in Canada, he sent two letters to his brother in England, one instructing the solicitor to hand the will over to T’s 86
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brother and the other instructing the brother to burn the will. Both letters were executed like wills. It was held in the circumstances that T had duly revoked his will. Again, in Re Spracklan’s Estate (1938), where T directed her bank manager in a duly signed and attested letter to destroy her will which was in his custody, it was held that the will was effectively revoked. An issue arises as to when the revocation takes effect; will it be when the relevant document, is duly executed, when it was sent or when it was received? Borkowski opines (at p 137 of his book) that it is when the document is executed. Accordingly, if T’s written instruction that his will is to be destroyed is lost in the post or if T forgets to post it, his will is nevertheless revoked provided the relevant document was duly executed. Revocation by destruction (s 20)
Under s 20, a will or codicil may also be revoked by burning, tearing or otherwise destroying it. The act of destruction must have been carried out with the intention to revoke the will. The act of destruction
Although s 20 mentions two specific modes of destruction (burning and tearing) the words ‘otherwise destroying’ signify that other similar acts will suffice (for example, dissolving it in acid or pinning it up on a wall and shooting it to bits). It also emerges from decided cases, that the required act may consist of the destruction or complete obliteration of a vital portion of the will such as T’s signature. Thus, in: •
Hobbs v Knight (1836) T’s signature had been cut out leaving the rest of the will intact;
•
In the Goods of Morton, T’s signature had been gouged out with a sharp instrument; and
•
Re Adams (1990), T’s signature and that of the witnesses had been completely obliterated with ballpoint ink.
In all these cases, the respective acts were held to amount to destruction of the wills. On the other hand, where it is the signature of a witness that was torn off rather than that of T, it appears from the decision of Hannen P in In the Goods of Wheeler that this will not constitute sufficient destruction to revoke the will. Other cases have also established that the performance by T of merely symbolic acts will not amount to destruction for the purpose of s 20. This is seen 87
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from: •
Stephens v Taprell (1840), where T’s name was crossed out (but not obliterated) and a pen run through the will;
•
In the Goods of Brewster (1859), where T wrote across the will with a view to cancelling it;
•
Cheese v Lovejoy (1877), where T drew a pen through some lines of his will and wrote on the back of the will ‘All these are revoked’ before throwing it into a pile of waste paper from which it was rescued and preserved by his housekeeper;
•
Jones v Grady (2000), where the will was trimmed with scissors in a manner that did not cut into the wording.
Partial destruction
Where T does not destroy the entire will but only a part of it (and the undestroyed part includes the signatures), the will is partially revoked so that on T’s death the portion of the will that was not destroyed will take effect. Such partial revocation occurred for instance in: •
In the Goods of Woodward (1871), where the first few lines of a seven page will had been ripped out by T;
•
In the Estate of Nunn (1936), where T had cut out a section of her will, threw it away and then proceeded to sew the two parts which remained together; and
•
Re Everest (1975) T), where T left some property to his widow directing the rest of his estate to be held on trust but later cut off the portion of the will which specified the beneficiaries who were to take under this trust.
These cases should, however, be contrasted with Leonard v Leonard (1902), where T who had made a five page will subsequently destroyed the original pages 1 and 2 and replaced them with new pages which were not properly executed. The rest of the will was entirely unintelligible without the destroyed pages and it was consequently held that the entire will stood revoked. Incomplete acts of destruction
Where T sets out to revoke his will by destruction but fails to carry through his chosen mode of destruction to its completion, this will not suffice to revoke the will. Thus, in Doe d Reed v Harris (1837), T cast an envelope containing his will into a fire. It was immediately 88
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retrieved by his housekeeper. The envelope, but not the will, was slightly singed. Held, there was no revocation. Also, in Doe d Perkes v Perkes (1820), T, during a quarrel with one of his beneficiaries, B, took out and began to tear his will. He had torn it into four when he was calmed down by the pleas of the beneficiary and a bystander. He then put the will back into his pocket and later observed that it was a good job that it was no worse. The court found that T’s intention to revoke had ceased before destruction was completed, and held that the revocation was not effective. See, also, in this connection Elms v Elms (1858). Destruction by another person
Under s 20, the act of destruction may be carried out by some person other than T, provided it is done in T’s presence and at his direction. T’s presence The importance of T’s presence is seen from cases such as In the Goods of Dadds (1857) and In the Estate of Kremer (1965). In Dadds, where T gave instructions for her codicil to be destroyed and it was taken to a room on the floor below and thrown into the fire, the codicil was held not to have been revoked. The same conclusion was reached in Kremer, where T phoned her solicitor instructing him to destroy her will and he burnt it in his office. T’s direction Equally, where T’s will is destroyed by someone else in his presence but not at his direction, this will not revoke the will. In Mills v Millward (1890), where T’s sister-in-law was so infuriated that T had left nothing for her and her husband in his will that she tore up the will in T’s presence, the will was held not to have been revoked. This was also the case in Gill v Gill (1909), where T’s wife tore up his will in a fit of anger during a quarrel over his drunkenness. Intention to revoke
T must have intended to revoke the will when the act of destruction occurred. It follows that there will be no revocation by destruction where T wrongly assumed he was destroying a document other than his will. For example, where T crumples up a pile of paper on his desk into a ball and throws it into the fire, not realising that his will was in the pile. It then dawns on him that the will was in the pile and he is burnt to death while trying to retrieve it from the fire. Furthermore, where T mistakenly believes that the will being destroyed is invalid (as in Giles v Warren (1852)) or has already been revoked (as in Scott v Scott (1859), Clarkson v Clarkson (1862) 89
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and Re Jones (1976)), the will in question is not revoked by such destruction. Moreover, a will is not revoked where it is shown that when the act of destruction occurred: •
T was not of sound mind (as happened in Re Sabatini (1969) and Re Aynsley (1973)); or
•
T was in a drunken state (as happened in Brunt v Brunt (1873)).
The two presumptions
Two presumptions apply in the context of revocation by destruction. (a) Presumption where will is lost Where T’s will (or a codicil thereto) which was last known to be in his possession is missing at his death, this gives rise to a presumption that he had destroyed it with the intention of revoking it. See Welch v Phillips (1836) and Re Ziggles (1974). Where the last known whereabouts of the will do not point towards T, there will be no basis for invoking this presumption. Thus, for instance, in Chana v Chana (2000), where it was established that T had given his will to someone else to be copied and kept safe and this could not be found at T’s death, the court refused to presume that T had revoked it and directed that one of the copies which had been made should be admitted to probate. Even in those cases where all the indications are that the will had been in T’s keeping, the presumption is rebuttable by proof that on the balance of probabilities, T did not seek to revoke the will and it has simply been stolen, lost or misplaced. Thus, in Sugden v Lord St Leonards (1876), T was known to keep his will locked up in a black box to which he had the key. When he died, the will went missing. After his death several persons had access to the box and any one of them could have removed the will. The court felt able to conclude from all the evidence that the presumption that the will had been destroyed had been rebutted, and admitted to probate notes written by T’s daughter on the contents of the will. Equally instructive is Re Webb (1964). Here, T’s sister found a draft of T’s will in a trunk shortly before T’s death and T told her not to throw it away, as it was her will. After T died, the original could not be found and evidence pointed to the fact that it was probably destroyed 90
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by enemy action during the Second World War. This was held to rebut the presumption of revocation by destruction. In Re Dickson (1984), T’s will was also missing at his death. The court however found sufficient evidence from various declarations made by T that up till the time of his death, he had intended this will to be effective and held on the basis of this evidence that the presumption of revocation by destruction had been rebutted. Finally, in Deye v Avery (1997), T had gone to his bank for the purpose of executing his will, but this will was nowhere to be found after his death. The court held that the presumption that T had revoked the will by destruction was rebutted by the available evidence, which suggested on the balance of probabilities that the bank had subsequently posted the will to T, but it had gone missing in the post. (b) Presumption where will is found mutilated Where T’s will which was known to be in his possession is found at his death to be torn or mutilated and there is no explanation as to how it got into this state, cases such as Lambell v Lambell (1831) and In the Goods of Lewis (1858) indicate that T will be presumed to have intended to revoke the will or the torn/mutilated part. However, it emerges from Re Cowling (1924) that this presumption may be rebutted by evidence which points to the fact that the reason why T chose to retain the will and not throw it away after tearing or mutilating it was because he intended not to revoke it. Conditional revocation of wills
Where T sets out to revoke a will either by destruction or by a later will or other duly executed document, the intention to revoke may be absolute or conditional. If it is absolute, all that is required is for one of the recognised modes of revocation to be employed. If it is conditional the revocation will not take effect unless the material condition is satisfied. This can be seen from cases such as Campbell v French (1797), where T’s will contained legacies in favour of his relatives who lived in America. In a later codicil, T revoked the legacies on the ground that the legatees were all dead, but it later emerged that they were still alive at T’s death. It was held that revocation was conditional on the legatees having died and was therefore of no effect. Also instructive is Re Carey (1977), where T destroyed his will on the premise that there was no point in his leaving a will, as he owned no property which he could pass on in the will. He thereafter inherited property 91
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under his sister’s will. The revocation was held to be conditional on T having nothing to leave in his will and his inheritance from his sister meant that the condition was not satisfied; thus, T’s will stood unrevoked. Establishing the testator’s intention
In situations where a will is revoked by destruction, cases like Dixon v Treasury Solicitor (1905) and Re Jones (1976) have held that the question of whether T’s intention is absolute or conditional is one of fact and that any relevant declarations by T regarding his intention are admissible in evidence. Where, on the other hand, an earlier will is revoked by a later will or other duly executed document, the process of ascertaining T’s intention will primarily involve construing the revoking will or document. Any other evidence is admissible only in so far as it assists the court in interpreting that will/document. Position where revoking testator ineffectually attempts to dispose of T’s property by other means
The problem of whether revocation is absolute or conditional is especially acute in situations where T contemplates that the revoked will is to be superseded by some other provision for the disposition of his property on his death. In such cases, it is necessary to decide whether the testator intends: •
the will to be revoked in any event; or
•
that revocation will be conditional on the alternative disposition being valid. If T’s intention to revoke is conditional this is sometimes referred to as dependent relative revocation. The aptness of this phrase has, however, been called into question in leading works such as Parry and Clark (p 70) and Mellows (p 104) and cases like In the Goods of Hope Brown (1942) and Re Jones.
The courts have found it necessary to determine whether revocation is absolute or dependent on the validity of an alternative disposition in a variety of contexts, most notably: •
92
where T revokes his will with a view to making a new one but dies before the new will is made: In cases like Dixon v Treasury Solicitor (1905) and In the Estate of Bromham (1951), the courts decided that where T after making his will, proceeds to revoke it, having decided to make a new will, such revocation would be dependent on the making of the new will. Accordingly, if T revoked this earlier will but died before making the new will, the revocation of the earlier will would be of no effect. However,
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it emerges from the more recent decision in Re Jones that the fact that T revokes his will with a view to making a new one does not invariably mean that the revocation is conditional on the new will being made. In this case, T made a will in 1965 devising certain property to B1 and B2. In 1970, T decided to make a new will leaving the property to B3 partly because she felt that B1 and B2 did not visit her often enough. To this end, she made an appointment to see her solicitor. A new will was never prepared, since T fell seriously ill and could not keep the appointment. During the illness, T sent for one of her nephews and when he asked whether she had made a will, she said no. When she died soon afterwards, the 1965 will was found to have been revoked by destruction. The court concluded from all the circumstances that T did not intend the revocation to depend on the making of the new will and held accordingly that the property would devolve as if T had died partially intestate; •
where T revokes his earlier will and makes a new will which is invalid or does not effectively dispose of his property. Where T having earlier made a will proceeds to make a new will revoking the earlier one expressly or impliedly, the dispositions in the new will may fail for expressly or impliedly, the dispositions in the new will may fail for a variety of reasons. For example: a variety of reasons. For example:
T may make Will 1 leaving his estate to B1; T may later make Will 2 in which he revokes Will 1 and leaves his estate to B2; B2 may have made the mistake of witnessing Will 2, thereby causing the gift of the estate in her favour to lapse. Cases like Re causing the gift of the estate in her favour to lapse. Cases like Re Robinson (1930), In the Goods of Hope Brown (1942) and Re Finnemore show that in such an event, Will 2 does not operate to revoke Will 1 if in the court’s view, T intended such revocation to be dependent on the Will 2 taking effect.
Also, T, having at an earlier date made Will 1, may later make Will 2 and either before or after making Will 2, may revoke Will 1 by destruction. Cases such as In the Goods of Middleton (1864) and Re Davies (1928) illustrate that if Will 2 fails for any reason (for example, for want of due execution), Will 1 will be regarded as not having been revoked notwithstanding its destruction, if, in the court’s view, T had intended its revocation to be dependent on the validity of Will 2. At the same time, however, the decision in In the Estate of Green 93
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(1962) demonstrates that the courts are willing to treat the revocation of an earlier will by a testator who makes a new will as absolute rather than conditional if this is what the testator intended. In this case, T after making a new will destroyed his earlier will. The court found that by destroying this will, T intended to revoke it absolutely and accordingly held that the revocation would stand despite the failure of the new will. •
where T revokes his later will thereby intending to revive an earlier will he had previously revoked: It sometimes happens that T first executes Will 1, later executes Will 2 and thereafter revokes Will 2. It is a well established principle of law (as shall be seen below at p 103) that any subsequent revocation of the revoking will (Will 2) does not revive the initially revoked will (Will 1). If T (perhaps in ignorance of this principle) undertook the revocation of Will 2 intending such revocation to be conditional on the revival of Will 1, this does not alter the legal position that Will 1 cannot be revived through this process. However, it emerges from cases like Powell v Powell (1866), Cossey v Cossey (1900), Re Bridgewater’s Estate (1965) and Re Janotta (1976) that the non-revival of Will 1 would mean that the condition upon which Will 2 was to be revoked had not been fulfilled, thereby rendering the purported revocation of Will 2 ineffective.
•
where T revokes his will incorrectly believing that his estate will devolve in a particular manner on his intestacy: In the leading case of In the Estate of Southernden (1925), T revoked his will in which he had left his estate to his wife because he mistakenly assumed she would be his sole beneficiary on his intestacy. The court held that the revocation was dependent on the estate devolving in the anticipated manner and, since the wife was not in fact the sole beneficiary under the intestacy rules, the will was not effectively revoked.
Revocation in the context of privileged wills Revocation by marriage
It emerges from the judgment of Shearman J in In the Estate of War drop (1917) that a will made by a privileged testator is ordinarily revoked by his subsequent marriage. This is the case whether or not the testator is still privileged at the date of the marriage. Revocation by destruction
A privileged testator may revoke any earlier will or codicil of his by physically destroying it under s 20 whether the will being 94
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revoked was executed in accordance with s 9 of the WA or not. Of course, if the will in question was an oral privileged will, it cannot be revoked by destruction. Revocation by subsequent will, codicil or other duly executed writing
A privileged testator may by means of a later will or codicil or other duly executed document revoke any earlier will of his in the manner contemplated by s 20. It is immaterial whether the will being revoked is a formally executed will or an informal privileged will. Informal statement of revocation
A privileged testator who has made an informal will may while still privileged declare the will to be revoked either orally or by means of a document which has not been formally executed. Moreover, the testator while still privileged may by these same means revoke a formal will executed by him. This can be seen from In the Estate of Gossage (1921), where T, while under orders to proceed with his military unit to South Africa, made a formal will leaving his residuary estate to his fiancée. While T was in South Africa, their relationship became strained and in consequence, T wrote to his sister in England, directing her to burn the will, as he had already cancelled it. It was held that the testator’s letter (which was not duly executed) operated to revoke the will. Revocation of privileged will by an infant
A person who is under the age of 18, being in actual military service or a mariner at sea may make a privileged will and is equally capable of revoking such a will while he remains privileged. There was, however, a difficulty regarding revocation where such a person ceased to be privileged during infancy, in view of the general rule disqualifying infants from making or revoking wills. In response to this difficulty, it has now expressly been provided in s 3(3) of the Family Law Reform Act 1969 that an infant is capable of revoking a privileged will, even if at the time of revocation, he could not make a new privileged will. The provision does not, however, state whether the revocation must be by one of the four normal methods or whether an informal revocation of the type that occurred in Gossage will suffice.
Alteration of wills Where T wishes to amend his will in any respect, it is open to him to: 95
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• •
execute a codicil clearly setting out the desired amendments; or embody the proposed amendments in the will itself by means of such interlineations, obliterations or other alterations as are considered appropriate. This primary concern here is with the law regarding those alterations that are embodies in the will. Alterations before execution
Where there is evidence that T altered his will before execution intending that such alteration should form part of the will, the alteration are valid whether or not they were signed and attested.In effect, the will is read in the light of these alterations and probate will be granted on this basis. Prewsumptions connected with the alteration of wills Persumption as to when alteration were made
There is, however, a rebuttable presumption that any alteration to a will was made after the will and any codicils to the will were executed. See Cooper v Bocket (1846), In the Goods of Adamson (1875) and In the Goods of Sykes (1873).Unless this presumption is rebutted, s 21 of the WA comes into play, with the result that the alteration is deemed to be valid only if it has been duly signed and attested. Rebutting the presumption
This presumption may be rebutted by internal evidence from the will itself as happened for instance in such cases as: •
Greville v Tylee (1851), where a perusal of the will suggested that the alterations enjtailed filling in blank spaces in the will, which was more likely than not to have been done before execution;
•
In the Goods of Cadge (1848), where the alteration took the form of interlineations made in the same ink as the rest of the will and gave meaning to certain sentences that would otherwise have been incomplete, which created the distinct impression that the alterations were made before execution; and
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•
In the Goods of Hindmarsh (1866); where the alterations were trifling and appeared to have been written in the same ink as the rest of the will which, in the court’s view, pointed to the conclusion that they were made before execution.
The presumption may also be rebutted by adducing extrinsic evidence. Cases in which the presumption was successfully rebutted on the basis of such evidence include: •
Re Jacob’s Goods (1842), where the court inferred from the fact that T was a lawyer familiar with the rules governing alteration that an alteration in his will must have been made before its execution; and
•
Keigwin v Keigwin (1843), where the court accepted that direct testimony of an attesting witness or the person who prepared the will showing that an alteration was made before execution would suffice to rebut the presumption.
Presumption arising from making alterations in pencil
Where the main contents of a will a written in ink (or, it would also seem, typewritten or machine printed) but alterations are made to the will in pencil, cases such as Rymes v Clarkson (1809), Hawkes v Hawkes (1828) and In the Goods of Adams (1872) signify that these alterations will be presumed to be deliberative and not final and, as such, shall not be treated as forming part of the will unless this presumption is satisfactorily rebutted. Alterations after execution
Alterations of this type are governed by s 21, which provides that any obliteration, interlineation or other alteration made in a will after its execution shall be only be valid in cases where: •
the alteration itself has been duty executed; or
•
the manner in which the alteration was made has been such that certain words or the effect of certain parts of the will are no longer apparent.
Where the alteration has been duly executed
The basic position in this regard has been succinctly stated in Re Hay (1904) by Buckley J, who declared that ‘An alteration in a duly
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executed will made after the execution is not effective unless the alteration is executed’. Where an alteration made after the execution of the will is duly executed, such an alteration is valid and probate shall accordingly be granted to the will as so altered. What does due execution entail in the context of alteration?
Section 21 stipulates that the alteration must be executed in like manner as required for the execution of the will. Accordingly, it must be signed by T and at least two attesting witnesses in the manner contemplated by s 9 of the WA. It is not clear whether it is required that the witnesses must be the same as those involved when the will was executed, although there appears to be no reason why this must be so. Further provision has been made regarding what constitutes due execution by s 21 itself, which states that the signature of T and his witnesses: •
may be made in the margin or on some part of the will opposite or near to the alteration; or
•
may be contained at the foot or end or opposite a memorandum in the will referring to the alteration (as was the case, for instance, in In the Goods of Treeby (1875)).
It is noteworthy that the initials of T and his witnesses will suffice in place of their signatures as seen from the case of In the Goods of Blewitt (1880). Effect of failure to execute alteration in the proper manner
Where no attempt is made to execute an alteration made after the execution of the will, such an alteration will have no effect on the will as admitted to probate (unless the wording so altered is no longer apparent). A post-execution alteration will also have no effect where steps are taken to execute the alteration but the required formalities have not been strictly complied with. This is evident from In the Goods of Shearn (1880). In this case, T duly executed her will. Immediately thereafter, it was noticed that a small portion had been omitted. The missing portion was then inserted by means of an interlineation. The witnesses placed their initials in the margin beside the interlineation, but T did not. It was held that the alteration was not properly executed and was of no effect. More recently in Re White (Decd) (1991), T duly executed his will in 1981 leaving 47% of his 98
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residuary estate to the first defendant who was his executor, 12% to the second defendant and 4.6% to the plaintiff. T purported to alter this will in 1984 by reading the proposed alterations to the second defendant, who wrote them out on the will. The main effect of these alterations was to substantially increase the share of the plaintiff, while correspondingly reducing the share of the first defendant. Having checked what the second defendant had written, T wrote at the bottom of the last page of the will ‘Alterations to Will dated 14.12.84. Witnesses’. It was then signed by the second defendant and another person, but not by T. It was held on this account that the alterations were not duly executed and the will was admitted to probate without the alterations. On the other hand, a different conclusion was reached in Re Dewell (1853), another case in which T, after executing his will, made alterations which were initialled in the margin by the attesting witnesses but not by T. The alterations were held to be valid on the ground that even though T had not signed or initialled them, the court found that he had acknowledged his existing signature which was made at the time the will was originally executed Kerridge (in Parry and Clark, p 112, fn 11) suggested that Dewell was wrongly decided in the light of the decision in Shearn. Also, Borkowski, while not referring specifically to the divergence between the two lines of cases, suggests (contrary to the decision in Dewell) that ‘it seems it is insufficient for the testator to acknowledge his signature to the will: there must be a fresh signature and attestation in respect of the alterations’. On the other hand, Margrave-Jones (in Mellows at p 115) has expressed the view that the decision in Dewell is preferable to that in Shearn, which he considers to be ‘a hard case’. The position with regard to privileged testators
Because a privileged testator is able to make an informal will, it follows that while he remains privileged he may alter his will after it has been made without any need for the alteration to be duly executed. See In the Goods of Tweedale (1874). Where the wording of the will is no longer apparent as a result of the alteration
If T wishes to alter his will by deleting certain words or clauses he may achieve this end by obliterating them completely from his will. Provided this is done in such a manner that the original wording is no longer apparent on the face of the will, the desired 99
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alteration will take effect, even if it was made after the execution of the will. In In the Goods of Hamer (1944), for instance, T’s will originally contained a legacy of ‘the sum of two hundred and fifty pounds’. T later completely obliterated the words ‘two hundred’ so that the will now read ‘the sum of…fifty pounds’. It was held that the original legacy of £250 had been effectively altered to one of £50 and the will was admitted to probate on this basis. On the other hand, where the T sets out to delete certain words or clauses from his previously executed will without completely obliterating them, so that such words or clauses are still apparent on the face of the will, the alteration will be valid only if it was duly executed. In this context, ‘apparent’ means ‘apparent on the face of the instrument in the condition in which it was left by the testator’, per Hannen P in In the Goods of Horsford (1874). It was held, for example, in In the Goods of Ibbetsen (1839) that the yardstick for determining whether the words of a will are apparent or not is to enquire whether an expert can decipher the words by natural means simply by inspecting the will in the state in which the testator left it This has meant in practice that if, despite the alteration the deleted words are still visible to the naked eye, such words shall be admitted to probate with the rest of the will. This will also be the case where the obliterated words can still be discerned by such means as using a magnifying glass (see in In the Goods of Brasier (1899)) or by holding up the paper to the light with a frame of brown paper around the portion being deciphered (see Finch v Combe (1894)). The position is different where it is necessary to employ artificial devices or physical interference to decipher the words that have been obliterated. In cases where the words are not apparent within the meaning of s 21, the courts will not normally permit the use of such devices to discover the obliterated wording. Thus, the courts have not allowed the removal of a strip of paper pasted over certain words in a will or the application of chemical agents to remove ink smears obliterating certain words in the will (see In the Goods of Horsford); nor have they allowed the use of infrared photography to disclose and reproduce the obliterated words (see In the Goods of Itter (1950)). In such instances, therefore, the will must be admitted to probate in its altered state. The requirement of animus revocandi
The fact that certain words in a will have become so obliterated that a part of the will is no longer apparent will not revoke that 100
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part of the will if the obliteration was not the result of an intention to revoke. See Townley v Watson (1844). For example, if T accidentally spilt ink on his will, thereby obliterating some words completely, the words are not deemed to have been revoked. Recourse may therefore be had to any available means, natural or artificial, as well as to extrinsic evidence, with a view to ascertaining the obliterated words. Conditional obliteration
If the evidence suggests that T’s intention to revoke part of his will by obliterating certain words was conditional, such revocation does not take place unless the relevant condition is fulfilled. For example, T may in his will make a legacy of £1,000 to B. At a later date, he may completely erase the figure £1,000 with thickly spread correcting fluid so that this figure is no longer apparent and insert the sum £2,000 in the space above, while making it clear that the original legacy will be revoked only if the increased legacy is effective. If the alteration made by the insertion of the £2,000 fails, for instance, because it was not duly executed, the original legacy of £1,000 will not be revoked even if this figure is no longer apparent because it has been completely obliterated. In such a situation, recourse can be had not only to natural means but also to artificial devices like infrared photography, with a view to ascertaining the original words. See In the Goods of Itter.
Revival of wills Where a will or codicil (or part thereof) has been revoked, it may subsequently be restored to effect through its revival. Under s 22 of the WA, two possible methods are open to T if he wishes to revive a revoked will or codicil. These are as follows: (a) By re-execution: As the term suggests, this entails the signing and witnessing of the previously revoked will in the manner prescribed by s 9 of the WA. Where such re-execution occurs, this in itself is deemed to signify T’s intention to revive the will and there is no need to satisfy the court of this fact. (b) By a duly executed codicil that shows an intention to revive the revoked will. Intention to revive 101
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In the case of revival by means of a duly executed codicil, s 22 stipulates that the codicil must show an intention to revive the revoked will or codicil. The courts have tended to construe this requirement strictly. This is evident for instance in Marsh v Marsh (1860). In this case, T had revoked his will. On T’s death, this revoked will was discovered with a subsequent codicil taped to it. The court held that the taping of the codicil to the will did not suffice as evidence of an intention on T’s part that the will was to be revived by this codicil and accordingly, the will remained revoked. In keeping with this strict approach, the courts have also decided that a will which has been revoked is not revived by a subsequent codicil which merely refers to the revoked will by date without any accompanying indication that it was intended to revive it. This is apparent from In the Goods of Steele (1868), where T made a will on 16 January 1866 and a new will in October 1866, revoking the first will. In January 1868, T executed a codicil ‘to my last will and testament which bears the date the 16th of January last past’. The court held that this codicil did not operate to revive the will of 16 January 1866. In the first place, the words used in the codicil were ambiguous, since the words ‘last past’ could equally be construed to refer to a will made on 16 January 1867. Furthermore, in the court’s view, the reference to the revoked will was not in itself evidence of an intention to revive it and as there was no other evidence to this effect, the will stood revoked and the codicil was admitted to probate with the will of October 1866. See, also, In the Goods of May (1868), In the Goods of Wilson (1868) and Goldie v Adam (1938). On the other hand, where the codicil not only refers to the revoked will by date, but goes further to refer to its provisions, the courts are prepared to treat this as evidence of intention to revive. This was the case in Re Baker (1929), where T, having made a will and codicil in 1893, made a fresh will in 1907 revoking the will and codicil of 1893. In 1911, she made a codicil to the 1907 will. Finally, in 1921, she made another codicil referring to the 1893 will and codicil, altering some the provisions of that will and otherwise confirming the will and codicil. The court held that by thus concerning itself with reformulating the terms of the revoked 1893 will, the 1921 codicil had shown an intention to revive that will. See, also, In the Goods of Stedham (1881). In determining whether the codicil shows an intention to revive the revoked will, the courts will have regard not only to the words employed in the codicil, but also to extrinsic evidence of the surrounding circumstances in which it was executed. In In the 102
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Goods of Davis (1952), T made a will giving all his estate to E. The next year, the will was automatically revoked by T’s marriage to E. Later on, T wrote on the envelope containing the will ‘The herein named E is now my lawful wedded wife’. The writing was signed and attested in accordance with s 9. There was evidence that this was done because E’s sister had drawn T’s attention to the fact that their marriage had revoked his will. The court held that the writing on the envelope was in substance a codicil, and concluded from the evidence that the reason why T executed this codicil was to address the concerns raised by E’s sister about the revocation of his earlier will, and that in so doing, he clearly intended to revive that will. In view of this evidence (which emanated not from the codicil itself but from the circumstances surrounding its execution), the court was able to conclude that the revoked will had been revived. Revival where a will has been revoked in stages
In addition to outlining the two methods of revival set out above, s 22 further provides that when a will or codicil is partly revoked, then wholly revoked and is later revived, this does not restore the part of the will that was first revoked unless a contrary intention is shown. Thus, for instance, if T makes a will in 1996, leaving his realty to A and his personalty to B, revokes the devise to A in 1997 and then revokes the whole will in 1998, any subsequent revival of the will does not operate to restore the devise to of T’s real property to A, unless T evinces a clear intention to this effect. The position where a revoking will is itself revoked
Apart from the two methods specifically mentioned in s 22, English law recognises no other method of revival. It is especially noteworthy that where an earlier will or codicil is revoked by a later will or codicil, the subsequent revocation of the later will does not operate to revive the earlier will. In In the Goods of Hodgkinson (1893), T made Will 1 leaving all his property to A and later made Will 2 devising all his realty to B, thus impliedly revoking Will 1 in so far as it related to his realty. T eventually revoked Will 2 by destruction before his death, but it was held that this did not operate to revive Will 1 as regards T’s realty, so as to enable A to resume her entitlement to the realty. Instead, T was deemed to have died intestate with regard to his realty. See, also, Major v Williams (1843) and In the Goods of Brown (1858). 103
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No revival of will revoked by destruction
Revival of an earlier revoked will or codicil is possible only where it is still in existence. Accordingly, where revocation was by destruction, it is not possible for the revoked will or codicil to be revived, as seen in Rogers v Goodenough (1862) and In the Goods of Steele (1868).
Republication of wills Whereas revival operates to restore a revoked will to effect, republication serves to confirm a valid will so that it takes effect as if it was made, not on the day it was originally executed, but at the subsequent date on which it was republished. The historical significance of republication
Republication was an important feature of the law of wills before the enactment of the WA. At the time, T was required to publish his will by expressly declaring or otherwise affirming in the presence of the witnesses that the instrument they were attesting was his will. Where property passing under the will included or consisted of realty, the law as it then stood was that the will was not ambulatory in relation to such property. In effect, the will would not operate to dispose of real property acquired by T between the date the will was made and T’s death. It became customary when T acquired realty after executing a will, especially where he did not wish to go to the trouble of making a new will, to republish his will, so that it took effect from the republication date and thus covered such realty. Under s 13 of the WA, a duly executed will is expressed to be valid without publication. The fact that publication is no longer needed has led to suggestions that the term republication is now a misnomer (see, for example, Lord Porter in Berkeley v Berkeley (1946)). Furthermore, the provision in s 24 that a will shall be construed as if executed immediately before T’s death both in respect of realty and personalty, has now removed the prime historical reason which made the act of republication so widespread in a bygone era. In spite of this, no statutory attempt has been made to abolish the republication of wills, and in practice, republication is still fairly common among testators. Methods of republication 104
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A will can only be republished either through its re-execution or through its confirmation by a subsequent codicil. Where republication is concerned, these two methods have emerged from the case law rather than from the statutory formulation in s 22, which prescribes the same two methods for the revival of wills: (a) Re-execution: With regard to republication by the first method, the mere fact that a will has been re-executed has been held in Dunn v Dunn (1866) to raise the presumption that, in so doing, T intended to republish it. This presumption may, however, be rebutted by evidence to the contrary. It was rebutted, for instance, in Dunn v Dunn, where the evidence suggested to the court that T’s reexecution of her will was not intended to republish it, but merely to mark her transfer of the will to the chief beneficiary. (b) Confirmation by subsequent codicil: In order for a codicil to have the effect of republishing a will, it must be proved that T executed the codicil with the intention of confirming the will. It has accordingly been held in Re Smith (1890) that where the execution of the will is followed by the execution of a codicil that contains no reference to the will, this does not operate to republish the will. For the avoidance of doubt, it is advisable for any codicil intended to republish a will to contain such express terms as ‘In all other respects, I confirm my will’. However, even if the codicil does not, so long as it contains some reference to an existing will this suffices to show that T intended to confirm that will, even if such a reference would be considered insufficient in the context of an intention to revive a revoked will. In particular, if T, after executing a will, executes a subsequent testamentary instrument referred to as ‘the codicil to my will’, this shall have the effect of republishing the will, without the need for any further confirmation. See Skinner v Ogle (1845), Re Taylor (1880), Re Champion (1893) and Re Harvey (1945). Consequences of republication
As Borkowski observes (at p 155 of his book), republication provides ‘a useful option for testators, although one that must be carefully exercised since it may have unexpected consequences’. The primary effect of republication as seen from s 34 of the WA is that a republished will is deemed to have been executed on the date of its republication. This has a number of far reaching implications: •
Unattested alterations: Where a will is republished by a 105
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subsequent codicil, there is a presumption that any unexecuted alterations in the will were made after the execution of both the will and the codicil and is therefore invalid. However, if there is evidence that the alteration was made after the will was executed but before its republication by the codicil, the alteration is rendered valid by such republication. See In the Goods of Sykes (1873). •
Incorporation by reference: As a general rule, only a document in existence at the time a will is executed may be incorporated by reference into the will. See Singleton v Tomlinson (1878). However, where the relevant document comes into existence after the will is executed, but before the execution of a subsequent codicil republishing the will, the fact that the will now takes effect from the date of republication means that the document can be validly incorporated by reference and may be admitted to probate with the will. See In the Goods of Lady Truro (1866).
•
Gifts in favour of beneficiaries referred to by description: Where T in his will leaves property to B by name and B dies before T, the gift in B’s favour will lapse and this will not be affected by any subsequent republication of the will. See Hutcheson v Hammond (1790) and Re Woods Will (1861). However, where the reference in the will is not to a named beneficiary, but to a beneficiary described by his relationship to T or some other person, and the party who fitted that description at the time the will was made dies, any subsequent republication of the will operates to confer the benefit on any other person who fits the description at T’s death. Thus, in Re Hardyman (1925), T made a will in 1893, which contained a legacy of £5,000 ‘in trust for [her] cousin, his children and wife’. At this date, her cousin was married to W1 who died in January 1901. In November 1901, T, being aware of the death of W1, made a codicil to the will without referring specifically to the legacy of £5,000. In 1903, the cousin married W2. It was held that the effect of the republication was to extend the benefit originally provided for W1 to any other wife the cousin might marry in future, so that W2 now became entitled to an interest in the £5,000.
•
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Gifts of property made by reference to the present time: It is provided in s 24 of the WA that a will speaks from the testator’s death as regards both his realty and his personalty. This rule does not apply, however, where the testator devises or
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bequeaths property in terms which make it clear that he is referring to property owned by him at the date of the will. For example, where T, in his will, devises ‘all the freehold property of which I am possessed at the date of this my will’, this will not pass any freehold land acquired by T after the will has been executed to the devisee. Where, however, a will framed in such terms is subsequently republished, the effect of this is that the property covered by the gift now extends to property of that description (in this example freehold land) acquired between the original execution of the will and the date of the codicil. In Re Champion (1893), for instance, T made a will in April 1863, in which he devised a freehold cottage and ‘land thereto belonging now in my occupation’ to trustees on trust for his wife and children. In September 1873, he bought two fields adjoining the cottage and occupied them together with the cottage till his death. After acquiring the fields, T executed a codicil to his will appointing new executors but otherwise confirming the will in all other respects. It was held that the subsequent codicil had the effect of extending the property covered by the original device to the two subsequently acquired fields. See, also, Re Reeves (1928). •
Witnessing the will: Where a beneficiary or his spouse has witnessed a will, s 15 of the WA provides that the benefit is thereby lost. However, if the will is subsequently republished and persons other than the beneficiary and his spouse witness the republication, this operates to restore the benefit. See Anderson v Anderson (1872) and Re Trotter (1899).
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5 Classification of Gifts in a Will and Failure of such Gifts You should be familiar with the following areas: •
the nature and types of legacies and devises
•
failure of gifts by ademption
•
failure of gifts on account of the beneficiary’s death
•
failure of gifts due to the dissolution of a marriage
•
unlawful killing as a cause of the failure of gifts
•
failure of gifts where a beneficiary witnesses a will
•
failure of gifts by disclaimer
•
failure of gifts by abatement
•
failure of gifts for uncertainty
•
failure of gifts for non-fulfilment of stipulated conditions
•
the effect of the failure of a gift in a will
Classes of gifts in a will A gift by will of personal property is called a legacy or bequest, while a gift of real property is called a devise. Legacies as well as devises are of several different types and as shall be seen below, several significant legal consequences flow from the distinction between various types of legacies and devises. Types of legacies or bequests
Legacies may be: (i) specific; (ii) general; (iii) demonstrative; or (iv) residuary. Whether a legacy is of one type or the other is a question of construction depending on the words employed in the will. 109
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Specific legacies
As explained by Jessel MR in Bothamley v Sherson (1875), a specific legacy is a gift of specified personal property forming part of T’s estate at his death, which property is severed or distinguished from the totality of his assets. By the same token, Lord Blackburn stated in Robertson v Broadbent (1883) that a specific legacy is ‘something which a testator, identifying it by sufficient description and manifesting an intention that it should be enjoyed or taken in the state and condition indicated by that description separates it from the general mass of his personal estate’. An intention to make a specific legacy is usually manifested by: •
the use of ‘my’ or similar possessive words, for example, ‘all my stock in the Midland Railway Company to A’ (as in Bothamley v Sherson) or ‘my Rolls Royce Silver Shadow to B’ or ‘the only Rolex watch that I own to C’ or ‘whatever car belongs to me at the date of my death [or at the date of this will] to D’;
•
a reference in the terms of the legacy to the manner in which the property in question was acquired, for example, ‘I give to E, the diamond ring my husband gave me on our 50th wedding anniversary’ or ‘I give to F the painting which I received under my late father’s will’.
General legacies
A general legacy is a gift of personalty which is not a bequest of any specific part T’s estate, but is intended to be provided for out of the general assets owned by T at his death. As pointed out in Re Rose (1948), ‘the court leans against specific legacies, and is inclined if it can to construe a legacy as general rather than specific’. In effect, if there is any doubt as to whether a legacy is specific or general, it will usually be treated as a general legacy. What this means in practice is that where words signifying possession are not employed in making a bequest, it is usually construed as a general legacy rather than a specific legacy; see, for example, Re Gage (1934) (bequest of £1,150 5% War Loan) and Re O’Connor (1948) (bequest of ‘10,000 preference shares of £1 each fully paid’). The main reason for this judicial bias against specific legacies is to avoid the effect of the doctrine of ademption which as we shall see applies only to specific gifts and causes such gifts to fail if the property concerned no longer forms part of T’s estate at his death. Unlike a specific legacy, the subject matter of a general 110
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legacy need not form part of T’s estate at his death. Where, for example, T’s will leaves to B ‘a dozen bottles of 1936 vintage claret’ or ‘800 BT shares’ (as distinct from ‘my 12 bottles of 1936 vintage claret in my wine cellar’ or ‘the 800 BT shares owned by me’) and at T’s death, his estate happens to include a stock of such claret or BT shares, his executors will ordinarily give effect to the gift out of that stock. However, if T owns no claret of that vintage or BT shares, as the case may be, the executors must raise money from his other assets to purchase the claret or shares. See Bothamley v Sherson. Pecuniary legacies
Where the subject matter of a general legacy is money this is generally called a pecuniary legacy. For example: ‘I hereby leave £1,000 to B.’ But note: a gift of money in a will can also be in the nature of a specific rather than a general legacy. For example: a gift in a will of ‘the £1,000 which has been lying in my safe since 1998 to B’ (see Lawson v Stitch (1738)). Demonstrative legacies
This type of legacy is in substance a general legacy which is meant to be satisfied primarily out of a specified fund or specified part of T’s estate. As Lord Thurlow LC put it in Ashburner v Macguire (1786), a demonstrative legacy is ‘in its nature a general legacy, but where a particular fund is pointed out to satisfy it’. For example, ‘I give £900 to B out of my current account with the Bank of Wales’; or ‘I bequeath £3,000 on B to be paid to him out of my partnership share’ (as happened in Re Webster (1945)). Note, however, that where a legacy is intended by T to be payable exclusively from a specified fund, it will be a specific pecuniary legacy and not a demonstrative legacy (see Paget v Huish (1863)). Annuities
An annuity under a will is a legacy of money payable by instalments with each instalment being treated as a separate legacy. In other words, as Cross J succinctly put it in Re Berkeley (1968), an annuity is to all intents and purposes ‘a series of legacies payable at intervals’. In common with other legacies, annuities may be specific, general or demonstrative. A specific annuity may be in the form of a gift by the testator of an existing annuity belonging to him at his death which he is entitled to dispose of by will, for example, where T states in his will that ‘I give to B the perpetual annuity to which I am entitled under my father’s will’. An annuity will also be specific where it is expressed 111
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to be payable out of specified property belonging to T at his death and not from any of T’s other assets, for example, where T’s will provides that ‘I give to B during her life the sum of £100 per annum to be charged upon and payable exclusively out of the dividends accruing from my shares in ICI plc’. A general annuity is one which is to be payable out of the testator’s general estate as distinct from particular assets, for example, ‘I give to B during his life an annuity of £500 to be payable by equal quarterly payments, the first payment thereof to be made at the expiration of three months from my death’. A demonstrative annuity is one that is in substance a general annuity but which the testator directs should be satisfied primarily (but not exclusively) out of a specified fund or a specified part of the testator’s property. See Paget v Huish. Where a testator makes a gift of an annuity, the annuitant will as a rule receive the sum due to him from the income of any fund or property that has been charged with the payment of the annuity. Where the income is insufficient for this purpose, an issue that arises is whether recourse can be had to the capital. This will depend on the construction of the will. Generally speaking, where there is nothing to the contrary in the will, the position as stated in Re Collier’s DT (1939) is that an annuity ‘is a charge upon the whole income and the corpus (namely, capital) of the residuary estate just as much as if it were an ordinary pecuniary legacy’. Where provision is made in a will for an annuity, for how long does the annuity continue? Annuities are capable of subsisting perpetually; for the life of the annuitant or for a specified number of years. The particular duration in each case will again depend on the construction of the will. Where the will is silent regarding the duration of an annuity it has been established in such cases as Blewitt v Roberts (1841) and Nichols v Hawkes (1853) that the annuity will subsist for the life of the annuitant. The position is, however, different where the annuity is in favour of a corporate or unincorporated body capable of existing for an indefinite period. It has been decided in Re Jones (1950) that in such cases, the annuity is on the face of it a perpetual one unless the will provides otherwise. From which date does the annuity become payable? The basic rule in this regard is that an annuity in a will begins to run from the testator’s death and the first payment will be payable in arrears at the end of one year from his death. See Gibson v Bott (1802) and Re Robbins (1907). However, this is subject to any contrary intention in the will, so that where, for instance, T provides in his will for an annuity, with payments 112
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to commence two years after his death, this will displace the basic rule. Finally, even though annuities are payable in arrears, it has been laid down in cases like Torre v Browne (1855) that no interest is payable to an annuitant on the arrears of an annuity. Such interest will only be awarded in exceptional circumstances, such as when the delay in paying the annuity is the fault of the residuary beneficiary or other person out of whose income it is payable. The general rule is anomalous given that in the case of ordinary pecuniary legacies, a legatee is entitled to interest once there is any delay in paying the legacy. Cross J has on this account severely criticised the non-payment of interest on annuities in Re Berkeley where he signified that the rule was one that he would be glad to see swept away by the Law Commission. Residuary legacies
A residuary legacy or bequest is a gift of the mass of T’s personal property remaining after all his debts, liabilities, expenses and other legacies have been satisfied. It is advisable to include a residuary legacy in a will if the T wishes to avoid the application of the intestacy rules (discussed in Chapter 6) to any of his personalty that has not otherwise been disposed of by his will. Types of devises
•
A devise of realty under a will may be a specific devise which has as its subject matter specific property which forms part of the testator’s estate and which is severed or distinguished from the general mass of his estate. For example, ‘I give to B in fee simple my dwelling house at 100 Mount Pleasant Drive, Swansea’.
•
A will may also include one or more general devises, for example, ‘I hereby direct my executors to purchase and give to B a holiday cottage on the Gower coast, not costing more than £50,000’.
•
Finally, it is quite common for a will to contain a residuary devise. For example, ‘I hereby devise to B all my real property
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not otherwise disposed of by this will’.
Failure of gifts in a will The main occurrences, which will cause the failure of a devise or bequest in a duly executed will, are: •
ademption of the gift;
•
the death of a beneficiary before the testator;
•
annulment or dissolution of the marriage between the testator and the beneficiary;
•
the unlawful killing of the testator by a beneficiary;
•
the witnessing of the will by a beneficiary or his spouse;
•
disclaimer of the gift by a beneficiary;
•
abatement of the gift;
•
uncertainty as to the subject matter of the gift or the intended beneficiaries;
•
non-fulfilment of the terms upon which the gift was made.
Ademption
A specific legacy or devise is adeemed if at T’s death, the property in question: • • •
no longer exists; no longer belongs to T; or has been converted into other property.
The effect of ademption is that it causes the intended beneficiary to lose his entitlement under the will. Situations in which gifts are adeemed
Ademption may occur in a variety of situations as typified by the following examples: •
114
T bequeaths ‘my 200 shares in British Telecom to A’ but then later sells all the shares (total ademption) or some of them (partial ademption). See Harris v Jackson (1877) and Ashburner v Macguire. In such an event, A cannot claim the purchase price and if T later purchases other shares in the same company, this
CLASSIFICATION OF G IFTS IN A W ILL AND F AILURE OF SUCH G IFTS
does not revive the gift to A: see Re Gibson (1866). •
T bequeaths ‘my diamond engagement ring to B’ but later loses the ring to a mugger. The legacy is adeemed. Even if the ring was insured and T recovers its full value from her insurer, it emerges from such cases as Durrant v Friend (1851) that A will not become entitled to any such insurance payments.
•
T provides in his will that ‘I hereby leave to C, the £1,000 currently owed to me by X’ and X thereafter repays the debt in T’s lifetime., It was decided in such cases as Re Bridle (1879) that the legacy in C’s favour is thereby adeemed. By the same token, if X repays only £100 to T, the legacy is partially adeemed to the extent of the amount repaid. See Aston v Wood (1874).
•
T makes a will devising ‘my dwelling house at 100 Mount Pleasant Drive, Swansea to D’. The devise is adeemed if the house is later sold by T or repossessed because T defaults in his mortgage payment. See Re Bagot’s Settlement (1862).
•
T stipulates in his will that ‘I hereby give to E during her life the sum of £500 per annum to be charged upon and payable exclusively out of the rents received from the letting of my business premises at 200 St Helen’s Road Swansea’. This annuity will be adeemed if T subsequently goes out of business and sells the premises. See Cowper v Mantell (No 1) (1856).
•
T devises his dwelling house or his shares in X Ltd to F and later enters into a specifically enforceable contract to sell the cottage to Z, but T dies before the sale is completed. In such an event, there is notional conversion of the house or shares into the purchase money which operates to adeem F’s devise or legacy. As such, F will be able to claim neither the house/ shares nor the purchase price due from Z when completion occurs. For example, in Watts v Watts (1873), T in his will, left his leasehold estates to his sister (F). T later contracted to sell the estates to the GWR, but died before executing the deeds of assignment. Held, the gift to F was thereby adeemed. Also, in Re Sweeting (1988), T owned a dwelling house and adjoining plot of land (‘the yard’) which he left in his will to F. He later entered into separate contracts to sell the house and the yard. The contract relating to the sale of the yard stipulated that it was conditional on the simultaneous completion of the contract relating to the sale of the house. Completion did not occur until after T’s death. Held, even though the contract for 115
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the sale of the yard was conditional, it operated to adeem the gift of it in T’s will to F. See, also, Farrar v Earl of Winterton (1842) and Re Edwards (1958). Note, however: Where T first enters into the contract to sell the house or the shares to Z and later executes a will specifically devising/ bequeathing the same property to F and T dies before the sale is completed, the notional conversion into the purchase money will be deemed to have occurred before the will is made. Accordingly, there will be no ademption and F will become entitled to the purchase price due from Z. See Re Callow (1928). •
T in his will makes a specific bequest/devise of property to G and later confers on Z an option to purchase the same property exercisable after T’s death. The effect of the so called rule in Lawes v Bennett (1785) is that G’s bequest or devise will be adeemed. This rule is illustrated by Re Carrington (1932), where T in his will made specific gifts of his 420 shares in C Ltd. He later granted Z an option to purchase the shares, exercisable no later than one month after T’s death. When T died, Z exercised the option and it was held on the strength of this that the specific gifts were adeemed and the specific legatees were not entitled to the purchase price. See, also, Clarke v Bruce Lance (1988). By contrast: where T first grants Z the option to purchase the property and afterwards makes a specific bequest/devise of the same property to G there will be no ademption if Z exercises the option after T’s death. G thus becomes entitled to the purchase money. See Drant v Vause (1842) and Weeding v Weeding (1859).
Position where property changes in form but not in substance
Ademption will not occur, where the property which is the subject of a specific gift has since the will was made changed in name or form but the substance remains the same. In Re Clifford (1912), for instance, T bequeathed 23 out of the 104 £80 shares which he owned in L Ltd to B. Thereafter, L Ltd underwent a reorganisation under which it changed its name and sub-divided each of its £80 shares into four £20 shares so that at T’s death, he owned 416 of these £20 shares. It was held that this change did not adeem the specific legacy in B’s favour and he was entitled to 92 of the new £20 shares, because although the shares owned by T had changed in name and form, they remained the same in substance. Again, in Re Leeming (1912), T bequeathed ‘my 10 shares in K Brewery’ to B. The brewery company later went into voluntary liquidation and was reconstituted under the same name with each of the shareholders 116
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holding equivalent shares in the reconstituted company. Held, the bequest was not adeemed. Equally, in Re Jenkins (1931), T made a bequest of his shares in the Swansea Harbour Trust (SHT) to B. Under the Great Western Railway (GWR) Act 1923, shares in the SHT were converted into GWR shares. This Act expressly provided that any reference to SHT shares in any will was to be deemed a reference to GWR shares. Held, the bequest was not adeemed. Also, in Re Dorman (1994), T granted a power of attorney to A to manage her affairs. In her will, T bequeathed the money in her Barclays Bank deposit account to B. After the will was made, A, on the Bank Manager’s advice, closed this account and transferred the funds in it to a new higher interest yielding account in the same bank. Held, that the bequest was not adeemed since the money in the new account was in substance, if not in name, the same property. The above cases must be contrasted with Re Slater (1907). Here, T’s will contained a legacy of the stock owned by him in the Lambeth Waterworks Co (LWC). After the will was made, the Metropolitan Water Board (MWB) acquired LWC and other metropolitan waterworks companies. MWB offered to compensate investors in these waterworks companies in cash or by issuing MWB stock to them and T took the stock. On T’s death, the court held that T’s stock in LWC had not merely changed in its name and form, but had been replaced by MWB stock which differed in substance, since it was issued by a different concern operating over a much larger area. Consequently, the legacy of LWC stock in T’s will was adeemed. Also relevant in this connection is Soukun v Hardoyal (1999). In this case, T’s having taken out an increasing term life assurance policy made a specific bequest of the sum assured under this policy to B1 and B2. This policy expired several years later, but under its terms, T was able to take out a new increasing term policy of the same kind, with the same insurer. On T’s death, the issue arose as to whether B1 and B2 were entitled under T’s will to the sum assured under the new policy. In keeping with the decision in Re Slater, the court held that the original policy had upon its expiry ceased to exist, and the new policy taken out by T with its different terms and conditions could not be regarded as substantially the same policy in a different form. Accordingly, the benefits, which under T’s will would have accrued to B1 and B2 from the old policy, had been adeemed and did not continue to subsist in the new policy. Position where specific legacy or devise is expressed to take effect on the testator’s death
If T wishes to leave his car to B in his will, instead of doing so by means of a legacy which refers to the particular car owned by him at the time he made the will (for example, ‘I bequeath to B my 1995 117
Ford Escort, N 100 AUI’), the legacy may read ‘I leave to B any car owned by me at my death’. Where this is the case, the fact that T subsequently sells his Ford Escort will not cause the legacy to fail by ademption. In such an instance, ademption will only occur if at the time of T’s death he owns no car at all. Ademption not affected by republication
If a specific gift in a will has been adeemed and the testator later executes a codicil republishing the will, it has been decided in cases like Drinkwater v Falconer (1755), Powys v Mansfield and Re Galway’s Will Trust (1950) that such republication will not ordinarily save the will from ademption. Thus, if T in his will leaves a specific legacy of his 5,000 British Gas shares to B and later sells the shares and retains the proceeds (or perhaps uses them to purchase a further 5,000 British Gas shares at a later date), the legacy will be adeemed notwithstanding the execution of any codicil republishing the will. In exceptional cases, however, republication may have the effect of altering the construction of a will in a manner which saves a specific gift that would otherwise have been adeemed. This was the case in Re Reeves (1928) where T made a will in 1921 in which he gave D ‘all my interest in my present lease’. At the date of the will, T held a lease granted in 1917 and due to expire in 1924. After the lease expired, T took a new 12 year lease of the property. In 1926, T executed a codicil republishing the will. On T’s death, it was held that republication meant that the will now spoke as if it had been executed on the date of the codicil, and the reference in the will to to ‘my present lease’ (as distinct for instance from a reference to ‘my lease dated September 27 1917’) would be construed in the light of the codicil to refer not to the original lease but to the new one. Since this new lease was still in existence at T’s death, the gift did not fail by ademption. Avoiding ademption by express provisions in the will
It is clear from cases such as Re Slater that ademption may occur whether T intended it or not. Where T is aware of the consequences of the doctrine, it is open to him to frame any specific legacy or devise in his will in terms which will avoid its operation. A typical example of the sort of provision which may be employed in this connection is: ‘I hereby bequeath to B my 500 British Gas shares or the investments or assets representing the same at my death, if they shall have been converted into other holdings.’ See Re Lewis’s Will Trust (1937). No ademption of general and demonstrative legacies
Neither a general nor a demonstrative gift will fail by ademption in the same way as a specific one. Thus, if T’s will provides that ‘I hereby leave £3,000 to B1 and 500 shares in Surebet Ltd to B2’, these legacies will be valid even if at T’s death, he neither owns £3,000 in cash nor any Surebet Ltd shares. As seen from Bothamley v Sherson, in such circumstances, T’s executors will be obliged to have recourse to his general assets in order to give effect to these legacies. Note, however, that in the case of the general legacy of shares in Surebet Ltd, the gift is nevertheless liable to fail for uncertainty where, for instance, the company is wound up in T’s lifetime so that it becomes impossible to obtain its shares or ascertain their monetary value at the time of his death. See Robinson v Addison (1840). Death of beneficiary before testator The general rule
It has long been established by cases like Elliot v Davenport (1705) and Maybank v Brooks (1780) that a gift in a will lapses if the intended beneficiary dies before T. By the same token, it emerges from such cases as Re Servers of the Blind (1960) and Re Stemson’s WT (1970) that a gift to a corporate body ordinarily lapses if the body is dissolved in the testator’s lifetime. Effect of declaration against lapse
T is not able to save gifts in favour of beneficiaries who predecease him from lapsing by inserting a provision in his will excluding the doctrine of lapse. See Re Ladd (1932). T may, however, insert into the gift a proviso that if the intended beneficiary dies before him (T), the property is to be held by the beneficiary’s personal representatives as part of his estate or held on trust for the beneficiary’s issue living at T’s death. This effectively averts the possibility of the gift lapsing. See, for example, Sibley v Cook (1747) and Re Cousen’s Will Trust (1937). Gifts to tenants in common and joint tenants
Where T leaves property to B1 and B2 as tenants in common and B1 dies in T’s lifetime, the undivided share to which B1 would have been entitled lapses. See Page v Page (1728), Peat v Chapman (1750) and Re Wood (1861). Where the property is left to B1 and B2 as joint tenants, the right of survivorship applies so that if B1 dies in T’s lifetime but B2 survives T, the position as seen from cases such as Morley v Bird
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(1798) is that B2 will inherit the entire property. Class gifts
A gift to a specified class to be determined at T’s death (for example, ‘£100,000 to be divided equally among such of my brothers as are living at my death’) will not lapse if one member of the class dies in T’s lifetime. This is so whether they are to take jointly or in common. See Doe d Stewart v Sheffield (1811) and Shuttleworth v Greaves (1838). In this context, there is still a class gift even if a person within the class is named in the will, for example, ‘To my son X and any other son I may have who are still alive at my death’. See Shaw v M’Mahon (1842). Powers of appointment
Where T is given a power of appointment exercisable by will and exercises it in favour of B who dies before him, this causes the gift to lapse as seen from Re Ladd. Republication of the will after the beneficiary’s death
Where T in his will makes a gift to B who dies in T’s lifetime, the fact that T republishes the will by a codicil executed after B’s death will not as a rule prevent the gift from lapsing so as to enable B’s personal representatives to claim the property. See Hutcheson v Hammond (1790) and Re Wood. In exceptional circumstances, however, republication may operate to alter the construction of the will and in so doing, save a gift that might otherwise have lapsed. This is particularly the case where the beneficiary is identified by description rather than by name. For instance, if T leaves property to ‘my brother’s wife’ and at the time the will is made, T’s brother is married to W1, but W1 predeceases T, the gift would ordinarily lapse. However, if T, knowing of W1’s death, republishes the will without altering the gift and her brother later marries W2 the phrase ‘my brother’s wife’ will be construed as referring to W2 and the gift will not lapse, provided W2 is alive at T’s death. See Re Hardyman (1925). Uncertainty as to order of death
It sometimes happens that the order of death as between T and a particular beneficiary, B, is uncertain. For example, T makes a will in favour of his son B and a while later, T and B die almost instantaneously in the same motor accident. The pre-1926 position: If T and B died in circumstances which rendered it impossible to ascertain which of the two died first, 120
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there was no legal presumption which the courts could invoke. The problems that were liable to ensue from this are well illustrated by Underwood v Wing (1855). Here, H in his will left his property to W, but if she died before him to B; W in her will also left her property to H with the same substitutional gift. While at sea, H and W were swept away by the same wave and it was unclear which of them died first. B was entitled under H’s will only if W died before H. Since it was impossible to determine whether this was the case, B’s entitlement failed. By the same token, B could only claim W’s estate if H had died before W. Since it was equally impossible to establish this, B could not sustain this claim. The solution provided by s 184 of the Law of Property Act (LPA) 1925: The rule contained in s 184 of the LPA stipulates that for all purposes connected with title to property, where two or more persons have died in circumstances rendering it uncertain which of them survived the other(s), they will be presumed to have died in order of seniority so that the younger shall be deemed to have survived the elder. This presumption applies most commonly in cases where the parties concerned have died in circumstances involving strict commorientes (that is, instances where they have both (or all) perished in a common disaster and it is uncertain which died first). It was invoked, for instance, in Hickman v Peacey (1945), where two brothers who had both made wills each leaving a legacy to the other died in a house that was destroyed by a bomb during an enemy air raid in 1940. The House of Lords held that as it could not be proved which died first, the younger would be presumed to have survived the elder and would thus inherit under the latter’s will. The operation of the presumption also fell to be considered in Re Bate (1947). Here, H and W were discovered dead in their kitchen. Both had died from gas poisoning. When they were discovered: (i) H had been lying on top of W; and (ii) W had a lower level of carbon monoxide in her blood. While the court acknowledged that these two facts pointed in the direction of W having died first, the evidence was insufficient to lead to a firm and definite conclusion on this matter. This being the case, the court fell back on s 184 of the LPA and held that W as the younger spouse was presumed to have survived H and was thus entitled to the inheritance provided for her in his will. See, also, Re Pringle (1946), Re Whitrick (1957) and Re Rowland (1963). Lord Simon also made it clear in Hickman that the presumption will apply where there is no commorientes in the strict sense, as where the parties died separately but it is nevertheless unclear 121
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which of them died first. This would be the case, for instance, where H and W make wills leaving their property to each other, H then goes to sea and W dies after he sets sail, while H himself drowns when his ship sinks on an unknown date. The statutory presumption in s 184 does not apply in the following contexts: •
For purposes of Inheritance Tax: The main effect of the presumption in s 184 is that it operates to pass to the younger person whatever property he or she is entitled to under the older person’s will, and then to transfer the same property to whoever is entitled to the estate of the younger person. Strictly speaking, therefore, the property is transferred twice and inheritance tax will ordinarily be payable on each transfer. To avoid such double taxation, s 4(2) of the Inheritance Tax Act 1984 contemplates that where, for instance, T in his will leaves property to his son B and both then die in an accident and it is unclear who died first, they are deemed for tax purposes to have died at the same instant. The significance of this lies in the fact that inheritance tax is payable in respect of the value of the deceased person’s estate immediately before his death. In effect, inheritance tax on the property will be charged to T’s estate, but not B’s estate since (for tax purposes only) B does not succeed to the property at T’s death.
•
Death intestate of elder spouse: Under s 46(3) of the Administration of Estates Act 1925 (as amended by s 1(4) of the Intestates’ Estates Act 1952), the presumption that death occurred in order of seniority does not apply in a situation where H and W have died in circumstances that render it uncertain which of them died first and the elder of the two died intestate. For example, where H aged 55 and W aged 50, a childless couple, die in a car crash with neither party having made a will and it is unclear who died first, W will not be presumed to have survived H. Rather, H will be deemed to have died without leaving a surviving spouse. If it were otherwise, W’s parents, brothers, sisters, etc, would have been able to lay claim not only to her own estate but also to the estate left by H to the exclusion of his own relatives. With regard to persons dying intestate after 1 January 1996, the Law Reform (Succession) Act 1995 now provides that where the intestate is survived by his/her spouse and the spouse dies within 28 days thereafter, for purposes of intestate succession, the spouse is deemed not to have survived the intestate.
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•
The presumption as to order of death is rendered inapplicable by s 46(3) only where the older spouse died intestate. This means that if H in the example above had made a will leaving all his estate to W and both of them died from the same calamity in circumstances that make it impossible to establish who died first, W (as the younger spouse) would be deemed to have survived H, as seen from Re Bate (above). Consequently, H’s property as well as W’s would in the circumstances ultimately devolve on her relatives to the exclusion of H’s relatives. Such a situation is, however, easily averted by inserting into such a will a clause providing that the spouse of the testator will only be entitled to the property left to them in the will if they outlive the testator by a specified period (usually one month).
Exclusion of the doctrine of lapse by s 33 of the Wills Act 1837 (as amended by s 19 of the AJA)
This section provides that where T leaves property in his will to B who is his child or a remoter descendant and B dies before T, the gift to B will not lapse if: •
B was survived by issue at his death; and
•
B still had issue living at T’s death.
It should be noted that the gift will be saved from lapsing even if B’s issue ‘living at T’s death’ is not actually the same person as B’s issue who survived B at B’s death. Thus, for instance, if T makes a will in 1994 leaving property to his son B and B dies in 1995 survived by a daughter D and T subsequently dies in 1998, the gift to B will not lapse if D is still alive at T’s death. Assuming, however, that D herself died in 1996 but had a child, C, who is still alive when T dies in 1998, the gift to B will equally be saved from lapsing by s 33. See In the Goods of Parker (1860). The original s 33 applies in cases where T died before 1983, while the amended s 33 (which came into effect by virtue of s 19 of the AJA) applies where T dies after 1982. The amended s 33 differs from the original in several significant respects, notably: •
The types of interests covered by s 33: Under the original s 33, it was expressly provided that a gift shall be saved from lapse only if its subject matter is ‘any estate or interest not determinable at or before the death of the [intended beneficiary]’. On the strength of this, the court held in Re Butler (1918) that the section would not apply where T’s gift to B consisted of a life interest or an interest in a joint tenancy and B died in T’s lifetime. Similarly, it was held in Re 123
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Wilson (1939) that s 33 would not apply where B’s interest was expressed to be contingent on a specified event such as his attaining the age of 25 and B died in T’s lifetime at a lower age. There is no corresponding reference in the amended s 33 to estates or interests not determinable at/before the death of the B. It remains to be seen whether the courts will conclude from this that the operation of the amended section extends to gifts of determinable interests such as those considered above, provided that after the death of B in T’s lifetime, B is survived by issue who outlive T. Such a conclusion would represent a marked departure from the position under the original s 33. •
The effect of illegitimacy: When the original s 33 was enacted in 1837, the term issue, as used in the context of inheritance, referred exclusively to a person’s offspring who were legitimate. Due cognisance was taken of the progressive improvement of the standing of illegitimate offspring for inheritance purposes in the amended s 33 which makes it clear that where T dies after 1982 and in his will gift leaves property to his child who predeceased him, the fact that such child was illegitimate or that the issue of such child living at T’s death is illegitimate will be disregarded for the purpose of saving the gift to the child from lapsing.
•
The position of issue en ventre sa mere: (conceived but not yet born): The original s 33 applied only if B had issue who had actually been born and were still living at T’s death. See Elliot v Joicey (1935). For its part the amended s 33(4)(b) has made it clear that the term ‘living at T’s death’ is no longer restricted to B’s issue already born and still living at T’s death, but also to any such issue conceived while T was still living but born alive after T’s death. For example:
T leaves £100,000 in his will to his son B; B dies in September 1999 leaving his wife six months pregnant; T himself dies in November 1999; B’s wife gives birth to a daughter, D, in December 1999.
In such circumstances, even though D was not in the literal sense ‘living at T’s death’, the effect of the amended s 33 is that provided D was born alive, the gift to B will be saved from lapsing. •
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The effect of the gift not lapsing: Where T made a gift in his will to his child, B, who predeceased him and T himself died before 1983 in circumstances where B’s gift would be saved from lapsing by the original s 33, the relevant gift would ‘take effect as if the death
CLASSIFICATION OF G IFTS IN A W ILL AND F AILURE OF SUCH G IFTS
of [B] had happened immediately after the death of T’. The effect of this stipulation was that the gift would on T’s death become part of the estate of B. However, as emphasised by Upjohn J in Re Basioli (1953), the fact that s 33 operated to save the gift and ensure that it devolved as part of B’s estate did not mean that the manner in which B’s estate was to be administered would thereby be altered. In particular, the fact that B’s issue living at T’s death had enabled the gift to B to take effect, by saving it from lapsing, did not entitle such issue as of right to step into B’s shoes and take the property. On the contrary, if B died insolvent and the claims of his creditors were unmet, on T’s death, B’s personal representatives would be obliged to apply the gift towards discharging his debts rather than set it apart for the benefit of B’s issue whose survival had saved the gift from lapsing. See Re Pearson (1920). Even if B was not insolvent, it emerges from such cases as Johnson v Johnson (1843), Re Hayter (1937) and Re Basioli that the subject matter of the gift would pass to whosoever was entitled under B’s will or intestacy, even if this was not the issue living at T’s death. For example, if: (i) T made a will in 1975 leaving £50,000 to his son B; (ii) B died in 1980 survived by his daughter D but made a will leaving his entire estate to his mistress, M; (iii) T died in 1982 survived by D, the gift to B would not lapse because of this, but the £50,000 due to B under T’s will would go not to D who saved it from lapsing but to M to whom B had left his estate. In the case of post-1982 wills, the amended s 33 contemplates that any devise or bequest which is saved by its provisions ‘shall take effect as a devise or bequest to the issue living at the testator’s death’. In effect, in the foregoing example, if T dies after 1982, the £50,000 will go to D rather than to M. In this connection, s 33 further stipulates that where a gift is saved from lapsing, B’s issue who saved it from lapsing shall take through all degrees according to their stock, in equal shares if more than one, any share which their parent would have taken if alive. In other words, where there are several generations of issue living at T’s death, they are to take per stirpes. For example: (i) T leaves £100,000 in his will to his son B; (ii) B dies in 1996 leaving two daughters, D1 and D2; (iii) D2 dies in 1997 leaving two children of her own C1 and C2; and (iv) T finally dies in 1999 survived by D1, C1 and C2. D1 shall be entitled to £50,000 out of this gift while C1 and C2 shall be entitled to £25,000 each in the stead of their mother, D2. •
Position in respect of class gifts to T’s children: Where T left property 125
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to his children (or grandchildren) not as distinct individuals but as a class to be ascertained at his death, such a gift did not fall within the contemplation of the original s 33, but was governed by the general rule relating to class gifts considered above (p 120). Thus, for example, if T in his will left £100,000 ‘to my children in equal shares’ without naming or otherwise identifying these children, and died in 1981, the £100,000 would on his death pass to those of his children who outlived him. Accordingly, if T had four children when the will was made (B1, B2, B3 and B4) and B1 predeceased T, he would not be deemed to come within the class of beneficiaries and B2, B3 and B4 would on T’s death be entitled to a third each of the £100,000 to the exclusion of any issue B1 might have left. See Olney v Bates (1855), Browne v Hammond (1833) and Re Harvey’s Estate (1893). On the other hand, if in this example, T died after 1982, the effect of the amended s 33 is that any children of B1 will step into his shoes and be entitled to share among themselves one-quarter of the £100,000. Thus, if B1 died leaving two children who were still living at T’s death, each child of B1 would receive £12,5000. Failure on dissolution or annulment of marriage
Where a testator who died before 1983, made a will in favour of his spouse during the subsistence of the marriage and the marriage was subsequently dissolved or annulled, the former spouse would not be deprived of their entitlement under the will unless the testator had revoked or altered it to reflect the change in his marital status. The position has, however, been changed in the case of testator who dies after 1982 by the enactment of s 18A of the Wills Act (WA) 1837. Under s 18A(1), if T has made a will in which his/her spouse, S, is a beneficiary or named as an executor and T’s marriage to S is thereafter dissolved, annulled or declared void by a court, unless a contrary intention appears in the will, the gift to S shall lapse and S’s appointment as executor will be ineffective. The effect of lapse under s 18A
In its Report on the Making and Revocation of Wills (1980) which was the catalyst for the enactment of s 18A, the Law Reform Committee had stipulated that in the event of divorce or annulment, the former spouse should be regarded as having predeceased the testator. Instead of adopting this formulation, s 18A when enacted, simply provided that any gift to the former spouse would lapse. This presents no problems where T in his will conferred a life 126
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interest on S. This is because s 18A(3) provides that if the gift to S lapses as a result of divorce or nullity, the interest of the remainderman is accelerated and thus takes effect as soon as T dies, even if S is still alive. For example, T leaves all his estate to his wife, S for life, remainder to his son Y absolutely and T later divorces S. On T’s death, S’s life interest will lapse and Y will immediately become entitled to his absolute interest. The position is also relatively straightforward where T’s will confers an absolute interest on S without anything more. If T’s marriage to S is subsequently dissolved or annulled, thereby causing the gift to S to lapse, on T’s death the property in question simply passes into T’s residuary estate to be taken by whoever is entitled to the residue either under T’s will or under the intestacy rules. The situation became more complicated, as seen from Re Sinclair’s Will Trust (1985), where T made an absolute gift of property to S accompanied by a substitutional gift of that same property to another party if S died before T. In this case, T left his whole estate to S, his wife, but the gift provided that if S died before him or within one month after his death, his estate was to go to a cancer charity. T’s marriage to S was later dissolved. In due course, T died and S survived him for more than a month. There was no doubt that under the terms of s 18A, the gift to S had lapsed, but the issue was whether T’s estate should go to the charity (as T appeared to have wished) or to those entitled on T’s intestacy. The court held that the fact that the gift to S had lapsed under s 18A did not mean that T’s will was to be construed as if she had died before him so as to enable the charity to claim the estate. This meant that the contingency upon which the charity would have been entitled had not happened. The gift to the charity thus failed and T had in effect died intestate. This problem has now been resolved with regard to wills of persons dying after 31 December 1995 by s 3 of the Law Reform (Succession) Act. This section provides that any property devised or bequeathed by T to his/her spouse shall in the event of divorce or annulment pass as if S had died on the date the marriage was dissolved or annulled. This belated implementation of the LRC’s original recommendation will serve to ensure that if the type of situation which occurred in Re Sinclair comes before the courts, there will be no difficulty in giving effect to the substitutionary gift. Forfeiture of benefit through unlawful killing 127
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As Judge Kolbert declared in Jones v Roberts (1994), ‘There is a long standing and well established rule of public policy known as the forfeiture rule which precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing’. Forfeiture on the basis of murder
This policy is stringently applied in cases where B is convicted of T’s murder, as seen from In the Estate of Crippen (1911), the recent case of In Re DWS (Decd), In Re EHS (Decd) (2000) and the remarks of Phillips LJ in Dunbar v Plant (1997). Forfeiture on the basis of manslaughter
It has also long been accepted in cases like In the Estate of Hall (1914), Re Giles (1972) and Re Royse (1995) that where B is convicted of the manslaughter of T, he will be caught by the forfeiture rule, even where there was a finding of diminished responsibility on B’s part. However, in the later case of Re H (Decd) (1990), Peter Gibson J maintained that that it is not in every instance that manslaughter will result in forfeiture. Elaborating on this, he proclaimed that it is only where B has been ‘guilty of deliberate, intentional and unlawful violence or threats of violence’ that forfeiture will occur. However, this pronouncement was called into question in Jones v Roberts where Judge Kolbert pointed out that it was inconsistent with the more authoritative decision of the Court of Appeal in Re Royse which had not been referred to by Peter Gibson J. A similar criticism has been voiced by Borkowski in his book, at p 227, where he states that Re H ‘is a questionable decision the authority of which is greatly diminished because Re Royse was not cited. The Re Royse line of cases is not only more authoritative but accords more satisfactorily with public policy’. The matter now appears to be more or less conclusively settled by the decision of the Court of Appeal in Dunbar v Plant. In this case, Phillips LJ opined that Peter Gibson J had wrongly decided not to apply the forfeiture rule in Re H (Decd) simply because he felt that there had been no deliberate, intentional violence in this case. In the view of Phillips LJ, what Peter Gibson J should have done was to apply the forfeiture rule but then consider whether the circumstances ought to warrant relieving B against forfeiture. Forfeiture on the basis of assisting in suicide
Apart from the applicability of the forfeiture rule where B is guilty of T’s murder or manslaughter, it has also recently been reaffirmed in Dunbar v Plant that the forfeiture rule will be invoked where B is culpable under the Suicide Act 1961 of having aided and 128
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abetted T’s suicide. The facts of this case were that Ms P and Mr D were engaged and set up home in a house held in their joint names. P fell under suspicion of theft and false accounting at work and began contemplating suicide. D, having resolved that life was not worth living without P, made a suicide pact with her. After several joint suicide attempts, D succeeded in killing himself while P survived. The administrator of D’s estate sought to resist P’s claim that she was entitled to the house which she jointly held with D, the endowment policy upon which the mortgage of the house was secured and the proceeds of a life insurance policy taken out by D. The administrator’s contention that P’s claim to D’s estate was caught by the forfeiture rule because of her involvement in his suicide was accepted by the court (although, as seen below, the court went on to hold that it would be appropriate in the circumstances to relieve her against forfeiture). Restrictions on the operation of the forfeiture rule
The application of the forfeiture rule is subject to the following exceptions and qualifications: •
forfeiture will not occur where B in killing T was insane to such a degree that he was unable to understand the nature and quality of his act or comprehend that what he was doing was wrong. See, for example, Re Houghton (1915), Re Pitts (1931) and Jones v Roberts;
•
the forfeiture rule is not stringently applied where B’s conviction for manslaughter resulted from a motor accident. See Jones v Roberts;
•
the Forfeiture Act 1982 provides that where B is precluded by the forfeiture rule from acquiring any interest in T’s estate, he may apply to the court for relief against forfeiture. Such a course is not, however, open to B where he has been convicted of T’s murder. Where an application is made, the court may modify the forfeiture rule by making any order which will meet the justice of the case, having regard to the conduct of B and T as well as other material circumstances and may grant total relief or partial relief as it sees fit. Cases in which relief against forfeiture has been ordered include the following:
Re K (Decd) (1985): B had endured years of violence at T’s hands. Fearing for her safety during a violent quarrel, she pointed a gun at him which went off and killed him;
Re H (Decd): B, who was in a state of deep depression 129
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requiring medication had killed his wife, T, in the mistaken belief that she was having an affair;
Re S (Decd) (1996): B was the chief beneficiary under a life insurance policy taken out by his wife. He had killed her because he suspected she was having an affair and now applied for relief against forfeiture to enable the sum assured to pass to their infant son;
Dunbar v Plant: B, having survived suicide attempts made in fulfilment of suicide pact with her fiancé, sought relief against forfeiture to enable her to claim certain entitlements from his estate.
Position where B kills T but does not stand trial
It is clear from such cases as Re Sigsworth (1935) and Re Dellow’s Will Trust (1964) that there is no strict requirement that a conviction must have been secured against B for the killing of T before the forfeiture rule can come into force. If the operation of the forfeiture rule had been dependent on B’s conviction, this would have meant, for instance, that if B after killing T but before being brought to trial proceeded to commit suicide (as happened in both Sigsworth and Dellow), or perhaps died of other causes, once B had forestalled the forfeiture rule by escaping conviction, his personal representatives would be able to claim his entitlement under the will. Such an outcome would clearly be contrary to public policy and it is therefore not surprising that the courts have seen fit to apply the forfeiture rule in cases where B’s suicide or premature death defeats the possibility of his conviction. Position where B is entitled to T’s estate not only under T’s will but also under the intestacy rules
It also emerges from Re Sigsworth that where B having unlawfully killed T forfeits his interest under T’s will, thereby causing the property concerned to devolve under the intestacy rules, B will also be debarred from asserting any entitlement to the property which he might otherwise have had under the intestacy rules. Failure resulting from witnessing the will
Under s 15 of the WA, a beneficiary loses his beneficial entitlement where the will has been witnessed by him or his spouse. The provision in s 15 applies not only to ordinary gifts, but also to 130
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benefits received under charging clauses in the will. See Re Pooley (1889), but contrast with Re Royce’s Will Trust (1959). Rationale for and criticisms of s 15
As Romer LJ explained in Re Royse’s Will Trust, the policy underlying the enactment of s 15, was the perceived need ‘to ensure that a man’s testamentary disposition really does truly and freely express his own wishes, uncoerced by outside influence’. Similarly, in Re Bravda (1968), Russell LJ sought to justify the operation of s 15 by stating that its enactment was ‘considered necessary to ensure reliable, unbiased witness of due execution’. In this latter case, T executed a home-made will leaving his estate to his two daughters in the presence of the daughters and two other persons, W1 and W2. W1 and W2 signed as witnesses and as an afterthought, T asked the daughters to sign the will. The Court of Appeal held with great reluctance that the daughters had witnessed the will and were therefore caught by the provision of s 15. While it cannot be disputed that s 15 plays an important role in ensuring that witnesses maintain a suitable degree of independence and objectivity when participating in the execution of a will, cases such as Re Bravda and Ross v Caunters vividly illustrate the injustice which may result from the inflexible operation of the section. According to Yale in his article ‘Witnessing wills and losing legacies’ (1984) 100 LQR 453 at p 463, the fundamental problem with s 15 as it currently stands is that it ‘strikes down legacies and other [testamentary] benefits without discrimination between the fraudulent, the foolish and the faultless witness’. As Yale points out, dissatisfaction with s 15 in its current form has prompted suggestions that its operation should be modified in various ways. Among the proposals which have been put forward are that: •
small legacies ought to be immune from failure on the basis of s 15;
•
gifts contained in wills which have been witnesses by spouses of beneficiaries rather than the beneficiaries themselves should no longer lapse under s 15;
•
the courts should be invested with a degree of discretion when dealing with any case in which the operation of s 15 is in issue.
Yale himself favoured a more radical proposal involving not just the modification of s 15, but its outright repeal and replacement by a rebuttable presumption of undue influence against a witness who was also a substantial beneficiary. Such a witness-beneficiary 131
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would thus bear the burden of allaying the court’s suspicions by proving to the court’s satisfaction that his involvement in executing the will had been entirely above board. Exceptions to the rule in s 15(1)
Even though no legislative reforms have so far been introduced along the lines suggested in the aforementioned proposals, Parliament and the courts have nevertheless devised a number of exceptions to the rule in s 15 which have served to ameliorate some of its perceived harshness. •
Superfluous witnesses: In response to the decision in Re Bravda, Parliament enacted the Wills Act 1968. Section 1 provides that where the testator dies after 29 May 1968, any attestation by a beneficiary or his spouse is superfluous and will be disregarded if the will would be duly executed without this attestation. Thus, if T’s will is attested by W1, W2 and W3 and W1 is a beneficiary, the gift to him will not fail since the attestation by W2 and W3 means that the will would be duly executed even if W1 was not a witness. By contrast, if in the situation outlined above, T died before 30 May 1968, the only basis upon which W1 would be allowed to take the benefit of the gift was if he satisfied the court that he signed the will, not in order to attest T’s signature, but for some other purpose such as to verify the contents of the will or to confirm that he approves of the gifts made in the will. See In the Goods of Sharman (1869) and In the Goods of Smith (1889).
•
Witnesses to privileged wills: Where the will is privileged, the law dispenses with the need for attestation and the fact that a beneficiary (or his spouse) has witnessed the will will not deprive such a beneficiary of his entitlement. In Re Limond (1915), T and his brother-in-law, B, were in active military service in India. T was fatally wounded and on his deathbed, made a will with B as his residuary legatee. B witnessed the will, but was held not to have lost his entitlement, as this was a privileged will.
•
Pre-marital witnesses: Where the will has been attested by the spouse of a beneficiary but at the time of its execution they were not married, the gift to the beneficiary will not lapse. In Thorpe v Bestwick (1881), T devised his house to his niece, B, by a will executed in 1865. In 1868, B married W, one of the witnesses to the will. It was held that s 15 did not deprive B of her benefit under the will, since W was not her spouse when it was executed.
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•
Trustee-witnesses: Section 15 is intended to deprive a person to whom property is left in the will of the beneficial interest in such property. It has accordingly been held that where property is left to a person in a will not beneficially, but as a trustee, the gift will not fail if the will is attested by such a person or his spouse. Thus, in Cresswell v Cresswell (1868), T in her will left ‘£200 to Brompton Church to be disposed of as Dr Irons pleases’. Dr Irons was a trustee of the Brompton Church. In spite of the fact that Dr Iron’s wife had witnessed the will, it was held that the gift would not fail on account of s 15. See, also, Re Ray’s Will Trust (1936).
•
Beneficiaries who witness a codicil but not the main will: Where a beneficiary or the spouse of a beneficiary did not attest the will but attested a codicil to the will, such a beneficiary will not be deprived of his entitlement under the will within the terms of s 15. In Re Marcus (1887), T made a bequest of six months’ salary to each of his employees. One employee (W1) attested the will and two subsequent codicils to it, while another (W2) attested the codicils but not the will. Only E1 was held to have lost his entitlement under the will.
•
Beneficiaries who witness the will but not a subsequent codicil: Again, where the beneficiary attests the will but the will is confirmed by a codicil that is not attested by the beneficiary, he will not be deprived of his entitlement. In Re Trotter (1899), T’s will contained a charging clause in favour of his solicitor B. The will was attested by B. T later executed a codicil confirming this will and this time B was not an attesting witness. Byrne J held that in so far as B was not a witness to the codicil which republished the will he was entitled to take his benefit as if it was created by that codicil.
•
Witnesses who are beneficiaries under a secret trust: The rule in s 15 does not apply in the context of secret trusts. Thus, if T leaves property in his will to Z but obtains an undertaking from Z that when the property passes to Z he will hold it on trust for B, equity will impose a secret trust on Z, compelling him to hold the property for B’s benefit, even though B is not specifically named in the will. It has been held in Re Young (1951) that B will not be deprived of his entitlement under the secret trust because he has witnessed T’s will since his interest is deemed to arise not under but dehors, (that is, outside) the will.
•
Section 28(4) of the Trustee Act 2000: In the case of testators dying after 31 January 2001, any payments which a personal representative is entitled to in a professional capacity under the terms of the will are to be treated as remuneration for services 133
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and not as gifts. One notable effect of this is that a charging clause in a will in favour of a professional executor will no longer fail under s 15 of the WA if the executor witnesses the will. Contrast Re Pooley (above). Failure by disclaimer
As Hill declares in his article ‘The role of the donee’s consent in the law of gift’ (2001) 117 LQR 127, p 139, ‘It is well established that someone to whom property is left by will is entitled to disclaim the testamentary gift’. As pointed out by Hill (p 143), ‘the essence of a disclaimer is that it is a refusal to accept the intended gift’. The beneficiary’s entitlement to disclaim was unequivocally endorsed by Abbott CJ in Townson v Tickell (1819), where he declared that ‘The law is certainly not so absurd as to force a man to take an estate against his will’. Reasons for disclaimer
Why, it might be asked, would a beneficiary, B, be foolhardy enough to disclaim a testamentary gift in his favour? The reasons for disclaimer are many and varied but the two most obvious ones are: •
B’s personal reservations about the donor or the property. Thus, for instance, if B is a person of immense moral fibre he may be unwilling to claim any benefit under the will of a person of whom he does not approve (as happened, for instance, in Re Moss (1977)). Alternatively, B’s concerns may relate to the nature of the property (as might happen for instance where the proprietor of a strip joint in Soho irreverently chooses to leave it in his will to his local vicar);
•
B’s perception that the burdens of accepting the property given may well outweigh the benefits. This may be the case for instance where accepting the property would burden B with a huge tax bill or onerous liabilities under a mortgage (as was the case, for instance, in Re Cranstoun’s Will Trust (1949)).
Restrictions on B’s entitlement to disclaim
B’s right to disclaim is subject to the following restrictions: •
There can be no disclaimer once the gift has been unequivocally accepted since B is not allowed to approbate and reprobate. See, for example, Re Hodge (1940). See, further, Hill’s article, p 147.
•
Where a single gift consists of two or more assets, the beneficiary
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cannot pick and choose which of the assets he wishes to accept but must either accept or disclaim the whole gift. For example, if T in his will leaves to B ‘my dwelling house at 1 Hill Street, Swansea together with its contents’, B will not ordinarily be able to accept the house and disclaim the contents. See Guthrie v Walrond (1882) and Re Joel (1943). •
Where a gift is made to two or more persons as joint tenants, a disclaimer is valid only if made by all the joint tenants. No individual joint tenant can disclaim the gift, although he may release his interest in the property to the other joint tenant(s). See Re Schar (1951).
Retraction of disclaimer
Finally, it is open to a beneficiary who has disclaimed his benefit under the will to retract his disclaimer provided no one else has altered their position on the strength of the disclaimer. Such a retraction operates to reinstate the beneficiary’s entitlement under the will. See Re Cranstoun’s Will Trust. See, further, Hill’s article, pp 147–48. Failure by abatement
Where an asset devised or bequeathed to B in a will is needed to meet the testator’s expenses, debts and liabilities, B’s legacy or devise will abate. The effect of this is that B loses his entitlement under the will either completely or to the extent that the asset affected is required to pay such expenses, debts, etc. The order in which recourse will be had to the various legacies and devises in a will for this purpose is set out in Pt II, First Sched to the Administration of Estates Act 1925 and is dealt with in greater detail in Chapter 8. Failure due to uncertainty Uncertainty as to subject matter
A gift in a will is liable to fail if the language in which it is framed is not sufficiently certain to enable the courts to ascertain the subject matter of the gift. In Asten v Asten (1894), T’s will contained separate gifts to each of his four sons. Each gift stated that the son named therein was to take ‘all that newly built house, being
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No_Sudeley Place’. There was no indication anywhere in the will which of the four houses which T owned in Sudeley Place, should pass to each son and the gifts therefore failed for uncertainty of subject matter. Other cases in which gifts were held to have failed on the same ground include Peck v Halsey (1726) (‘some of my best linen’) and Jubber v Jubber (1839) (‘a handsome gratuity’). Uncertainty as to objects
By the same token, where it is impossible to determine from the wording of the will the beneficiaries in whose favour a particular gift has been made, this will cause the gift to fail. In Re Stephenson (1897), for instance, T had an aunt (his father’s sister). She had three sons who bore the surname Bamber. When T made his will, he was well aware that the three sons had died, each leaving children. In spite of this, T in his will left his residuary estate ‘unto the children of the deceased son (named Bamber) of my father’s sister’. The court pronounced the gift void for uncertainty, since it was impossible to determine the particular son whose children were intended to benefit. Failure where the terms upon which B is to inherit are not satisfied
Where T’s gift to B is framed in terms which indicate that T does not intend B to take the property unless a particular condition is fulfilled or a specified event occurs, such a gift is liable to fail if the condition is not fulfilled or the event does not materialise. Failure on this ground occurred in two fairly recent cases. The first of these cases is Re Jones (Decd) (1997). In this case, T in her will left her residuary estate to her son, S, with a gift over to her nephews B1 and B2 if S predeceased her. T was unlawfully killed by S who thus forfeited his entitlement under the will and the court had to determine whether the residuary estate passed to N1 and N2 under the will. The court decided that in so far as S had not died before T as specified in the will, the basis on which B1 and B2 would have inherited had disappeared and the gift of residue to them thus failed. Accordingly, T would be regarded as having died intestate so far as her residue was concerned. The other case is Hodgson v Clare (1999). Here, T without the benefit of legal advice executed a will in which made his wife his residuary legatee but then went on to state that ‘in the event of…her demise together with
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me’, the residue was to pass to other beneficiaries. T’s wife died before him and when T died, the beneficiaries sought to claim the residue. The court, however, held that the fact that T’s wife had died before him meant that she did not die together with him as contemplated by the will, which in turn meant that the interest of the beneficiaries would fail and the residue would pass under the intestacy rules. Effect of the failure of a gift Specific gifts
Where a specific bequest of personalty fails for any reason and the subject matter of the bequest is still available for distribution, it generally passes to the person who is the residuary legatee of the property under the will. See Leake v Robinson (1817), Cambridge v Rous (1802) and Re Backhouse (1931). Equally, where a specific devise of real property fails and the property is still available for distribution, it is provided by s 25 of the WA and confirmed by the decision in Re Mason (1901) that the property passes to the residuary devisee. Residuary gifts
Where a gift of residuary personalty or realty fails in its entirety, the property concerned will devolve on those persons who would be entitled to the testator’s estate if he died intestate. Moreover, where the residuary estate is left in the will to B1 and B2 in undivided shares and the gift in favour of B1 fails, his share of the residue will not ordinarily pass to B2, but to those who are entitled on intestacy. Acceleration
The doctrine of acceleration applies in cases where successive interests are created in the same property. For example, T in his will devises Blackacre to B1 for life, remainder to B2 absolutely and the gift to Bl fails for some reason. The doctrine ensures that B2’s remainder takes effect in possession as soon as T dies. See, for example, Jull v Jacobs (1876) and Re Davies (1957). However, if the remainder is expressed to be contingent (for example, ‘to B1 for life remainder to B2 if he attains the age of 21’) and the prior life interest in favour of B1 fails, the doctrine of accelaration will not apply, till the contingency is fulfilled when B2 turns 21. See Re Townsend (1886).
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6 Intestate Succession You should be familiar with the following areas: •
recent reforms of the intestacy rules and the scope for further reforms
•
the duties of the personal representative pending distribution
•
the basis for distribution where there is total intestacy (including the hotchpot rule) and the relevant relationships for purposes of distribution
•
the rules governing distribution in the event of partial intestacy
Introduction A person who dies without effectively disposing of his property by will is deemed to have died intestate. Intestacy may be total or partial. Intestacy is total where a person either: •
dies without making any will at all; or
•
dies having made a void will or one that he revoked before dying.
Intestacy is partial where the deceased has made a will, which does not dispose of his entire estate. Where a person dies intestate, his personal representatives (PRs) must administer and distribute his estate in accordance with the provisions of the Administration of Estates Act (AEA) 1925, as amended by later statutes such as the Intestates’ Estate Act (IEA) 1952, the Family Provision Act (FPA) 1966 and the Family Law Reform Acts (FLRA) 1969 and 1987. Further amendments were recommended by the Law Commission in its Report on Distribution on Intestacy published in December 1989. In response to these recommendations, Parliament enacted the Law (Reform) Succession Act (LRSA) in 1995. The effect of this 139
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Act is that the rules governing the distribution of the estate of a person who died intestate before 1 January 1996 vary in several significant respects from the rules applicable where the death occurs after 31 December 1995. A useful overview of the provisions of the LRSA and the manner in which they have reformed the pre-existing law, can be obtained from the following articles: Barton’s ‘A matter of life and death—the Law Reform (Succession) Act 1975’ March [1996] Fam Law, pp 172– 74; Miller’s ‘Intestacy, divorce and wills’ (1995) NLJ Practitioner, pp 1693–94; and Wyles’ ‘The Law Reform (Succession) Bill (1995)’ 9 TLI, pp 96–99.
Issues surrounding the 1995 reforms With a view to implementing the recommendations in the 1989 Report, the LRSA introduced various provisions, which were designed to amend the existing law in relation to such matters as: •
the effect of divorce on the appointment of testamentary guardians;
•
the effect of divorce on testamentary gifts in favour of spouses (see Chapter 4); and
•
the entitlement of cohabitants under the Family Provisions legislation (see Chapter 7).
The 1989 Report also contained several significant proposals for reforming the intestacy rules. Two of these proposals which were subsequently carried into effect by the LRSA dealt with: •
the abolition of the hotchpot rules (see p 150 below); and
•
the disqualification of surviving spouses of persons who died intestate from inheriting under the intestacy rules if the surviving spouse died within 28 days thereafter (see p 145).
In addition to the foregoing, the 1989 Report put forward a radical and highly contentious proposal to the effect that the whole estate of any person who died intestate survived by a spouse should in all circumstances pass to the surviving spouse. In formulating this proposal the Law Commission proclaimed that it had been guided by two fundamental considerations, namely: •
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its desire to ensure that the intestacy rules were certain, clear, easily understandable, simple to operate and accorded with the expectations of most people;
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•
its appreciation of the need to provide adequately for the surviving spouse out of the estate of their husband or wife who had died intestate.
The Report identified three possible ways of achieving the objective of ensuring that the surviving spouse was adequately provided for, namely: •
substantially increasing the statutory legacy awarded to the surviving spouse, which currently stands at £125,000 (see p 147 below);
•
allowing the surviving spouse to inherit the matrimonial home automatically together with an increased statutory legacy; or
•
allowing the surviving spouse to inherit the whole estate.
After carefully considering these three options, the Law Commission expressed a clear preference for allowing the spouse to inherit the entire estate. In support of this option, the Report: •
argued that it would simplify the existing law considerably;
•
suggested that it accorded with the expectations of the majority of the population (a fact which it claimed was borne out by the results of a survey commissioned by the Law Commission); and
•
commended it as ‘the solution which [would] provide the right result in the majority of cases’.
Commenting on the merits of this ‘spouse takes all’ recommendation, eminent scholars like Kerridge in his article ‘Distribution on intestacy: the Law Commission Report’ [1990] 54 Conv 358 and Cretney in his article ‘Reform of intestacy: the best we can do?’ (1995) 111 LQR 77 highlighted the potential unfairness that would result from its wholesale adoption. Thus for instance, if the intestate (I) was initially married to W1 who bore children for him and subsequently married W2 after the death of (or his divorce from) W1, the consequence of a spouse take all regime would be that on I’s death (perhaps a few months after his remarriage), W2 would inherit his entire estate to the exclusion of the children of his first marriage. Again, even if I had contracted just one marriage (to W) and I died intestate survived by W and a number of infant children (and perhaps left an estate valued at millions of pounds), under the ‘spouse take all’ regime, W would inherit the entire estate. If she was extremely feckless and selfish, she could conceivably squander this vast fortune on herself to the detriment of the infant children. 141
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In the light of the possible injustices which might ensue from following the spouse takes all approach to its logical conclusion, it is not entirely surprising that this was the only recommendation put forward in the 1989 Report which the government rejected and declined to enshrine in the LRSA. Writing after the enactment of the LRSA, Borkowski (at p 35 of his book) agrees that that it was proper for the Law Commission to be concerned that the surviving spouse should be adequately provided for. At the same time, Borkowski, like Kerridge and Cretney, objects to the spouse takes all policy advocated by the Law Commission on the ground that it places insufficient weight on the parent-child bond. He suggests that a way forward might be to introduce a sensible matrimonial property regime under which the matrimonial home would be regarded as being held jointly by both spouses so that if the first spouse died, it would automatically devolve on the surviving spouse. Once such a regime was entrenched, it would in his view become relatively easy to devise a formula for apportioning the rest of the deceased spouse’s estate as between the surviving spouse and the deceased’s children or other issue. Pending any such reform of the matrimonial property regime, Borkowski suggests that a suitable measure might be to modify the existing intestacy rules in a manner that would ensure that if, on the death of the first spouse to die: •
the surviving spouse does not become entitled to the matrimonial home, he or she could be compensated by increasing the amount of their statutory legacy;
•
the surviving spouse holds an undivided share of the matrimonial home under a tenancy in common, he or she should remain entitled to the current level of statutory legacy;
•
the surviving spouse becomes entitled to the whole of the matrimonial home under a joint tenancy the level of his or her statutory legacy should be correspondingly reduced.
It remains to be seen whether concrete steps will be taken in due course to translate this proposal into legislation.
Administration of the deceased’s property pending distribution Section 33 of the AEA prescribes the manner in which the personal representatives (PRs) are to deal with the property of an intestate 142
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prior to its distribution. The relevant provisions of s 33 may be summarised as follows. Imposition of a statutory trust on the intestate estate (s 33(1))
Under the original s 33, the PR was required to hold on trust to sell and convert into money the deceased’s real property and his personal property not consisting of money. They were, however, invested with the power to postpone sale for as long as they felt is proper. With the abolition of trusts for sale by the Trusts of Land and Appointment of Trustees Act (1996), s 33(1) has now been amended to provide that the PR of a person who dies intestate now holds the relevant estate on trust with a power to sell. The imposition of a statutory trust on the intestate estate is subject to two qualifications set out in s 33(1): •
where the estate being administered includes any reversionary interest, it is not to be sold it until it falls into possession, unless there is special reason for sale. Thus if T devises his house to his wife W for life, remainder to his son S who dies intestate before W, S’s PRs cannot ordinarily sell the house until W dies;
•
the PRs are not to sell personal chattels of the deceased unless there is a special reason (for example, because his other assets are insufficient to pay his debts).
The statutory trust arises both in the event of total intestacy and partial intestacy. Where there is partial intestacy the trust will cover that part of the deceased’s estate not disposed of by his will. This will be the case, for example: •
where T in his will leaves his house and its contents to his wife absolutely but says nothing regarding the rest of his estate, then the rest of the estate will be subject to the statutory trust;
•
where T in his will leaves his whole estate (or the residue) to his brothers B1 and B2 in equal shares but B2 dies before T, then B2’s share of the estate will be subject to a statutory trust.
The PR’s duty to pay the intestates debts, expenses, etc (s 33(2))
PRs are required to pay any funeral, testamentary and administration expenses and any debts or other liabilities of the 143
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intestate and may, for this purpose, use any ready money available to them as well as the net money arising from the sale of property forming part of the estate. The PR’s power to invest (s 33(2))
Before distribution occurs and in particular, during the minority of any beneficiary or the subsistence of a life interest in the estate, the PRs are empowered to invest the proceeds realised from the sale of any assets in investments as authorised by statute.
Distribution where there is total intestacy After the PRs have paid all funeral and other expenses and met the debts and other liabilities of the intestate, the residuary estate of the intestate becomes available for distribution in the manner prescribed by s 46 of the AEA. For this purpose, the residuary estate consists of any money left in the hands of the PRs and any investments acquired with such money, together with any part of the intestate’s estate that has been retained unsold and is not required for administration purposes. See s 33(4). Parties who are entitled under the scheme of distribution set out in s 46 of the AEA The spouse of the intestate
Under the provisions of s 46 of the AEA and the relevant amending legislation, in the event of intestacy, if the deceased is survived by a spouse, the spouse becomes the chief beneficiary (and often the sole beneficiary). Where a marriage has ended in divorce and one party to it subsequently dies intestate, the other party will not be treated as the surviving spouse for the purpose of entitlement under s 46. However, it appears from Re Seaford (1968) that where a husband and wife were in the process of getting divorced when one of them died (in this case, a decree nisi had been obtained, but had not been made absolute), the other party will still qualify as a surviving spouse for the purpose of s 46. Again, where the spouses were not divorced but they were subject to a subsisting order of judicial separation at the time when one of them died, it emerges from s 18(2) that the surviving partner will be deprived of any entitlement under s 46. However where one spouse dies while they couple are informally separated, the 144
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surviving spouse remains entitled under s 46. The position where spouses die in circumstances which do not disclose which spouse died first
If it happens that a husband and wife both died intestate in circumstances which render it impossible to determine which one died first the presumption that the younger spouse died first is displaced by s 46(3). In such an event, their respective estates will be distributed as if neither of them was survived by the other. The 28 day rule
In the case of deaths occurring after 1995, the LRSA 1995 now provides that if the intestate is survived by his or her spouse who then dies within 28 days after the death of the intestate, the spouse will be deemed not to have survived the intestate. The extent of the entitlement of the surviving spouse
For the purpose of determining the beneficial entitlement of a surviving spouse, whose husband/wife died intestate it must be ascertained whether the intestate: •
was also survived by issue; and if not,
•
was survived by one or more of the following specified relatives; namely his parent(s), brother(s) or sister(s) of the whole blood or any issue of such brother(s)/sister(s).
In this connection, three possibilities must be considered: (a) Where the intestate is not survived by any issue or any of the specified categories of relatives: In such a case, the surviving spouse will be entitled to take the entire residuary estate absolutely. (b) Where the intestate is survived by his/her spouse and also by issue: Provided any such issue of the intestate attains the age of 18 or marries before that age, the surviving spouse will be entitled to the following assets out of the intestate spouse’s estate: (1) An absolute interest in the intestate’s personal chattels: As defined by s 55(1)(x) of the AEA, such personal chattels include: • • •
carriages, horses, stable furniture, etc; motor cars and accessories; garden effects; 145
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•
domestic animals;
•
plate, plated articles, linen, china and glass;
•
books, pictures and prints;
•
furniture, ornaments or articles of household or personal use;
•
jewellery;
•
musical instruments;
•
scientific instruments and apparatus; and
•
wines, liquors and other consumables.
Items that have been held to constitute personal chattels include: •
a 60 foot motor yacht, which the deceased sailed for leisure. See Re Chaplin (1950) (but contrast with Re Macculough (1981), where the yacht in question had the dual purpose of a pleasure craft and an income generating asset, available for hire);
•
a stamp collection valued at £1,848 which the deceased had put together as a hobby. See Re Reynolds (1966);
•
a collection of clocks and watches worth £50,000. See Re Crispin (1975);
•
a collection of valuable bank notes and coins (as distinct from cash available for daily circulation). See Re Collins (1971);
•
12 racehorses kept by the deceased for recreation. See Re Hutchison (1955). By contrast, Re Ogilby (1942) held that a herd of shorthorn cattle bred by the deceased on his farm were not personal chattels, but assets belonging to the farming business.
(2) The statutory legacy: In addition to the personal chattels, the surviving spouse is also entitled to a pecuniary legacy. The amount of this legacy depends on the date of the intestate’s death as follows:
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The statutory legacy is payable free of death duties and costs and interest is payable on it from the date of the intestate’s death until it is received by the surviving spouse. (3) An interest in the residue: The surviving spouse is also entitled to a life interest in one-half of whatever is left of the residuary estate after the personal chattels and the statutory legacy have been set aside. As shall be seen below the other half will be held on trust for the issue of the intestate. Capitalisation of the life interest: Under s 47A(1) of the AEA, the surviving spouse may elect to redeem the life interest and receive its capital value. This must be done in writing within 12 months from the grant of letters of representation. The capital value is calculated by reference to the projected yield from the estate and the age of the surviving spouse and the appropriate figures are set out in published tables. (c) Where the intestate is not survived by issue but is survived by one or more specified relatives: In such an event, the surviving spouse will be entitled to: •
the personal chattels;
•
a statutory legacy of £125,000 if the intestate died on or before before 30 November 1993 and £200,000 if he or she died after that date;
•
an absolute interest in one-half of what is left of the residuary estate while the other half passes absolutely to the parent(s) of the deceased if still alive and to the deceased’s brothers and sisters of the whole blood on statutory trusts if both parents are dead.
(d) The spouse’s right to appropriate the matrimonial home: Under s 41 of the AEA, the PRs are empowered to appropriate any asset 147
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within the deceased’s estate in or towards satisfying any interest in his estate. By virtue of this power, if a dwelling house had been acquired by H and he lived in it with W till his death intestate, his PRs could choose to allow W to retain the home rather than sell it with H’s other property in order to raise the sum needed to pay W’s statutory legacy. The fact that this power was given to the PRs meant that if in the above situation, W wished to retain the dwelling house, the PRs could nevertheless refuse to appropriate the house towards satisfying whatever entitlement W had under the intestacy rules. This problem was resolved by s 5 and Sched 2 to the Intestates’ Estates Act (IEA) 1952 which gives W as the surviving spouse the right to require the PRs to exercise the power of appropriation conferred by s 41 of the AEA so as to give her the dwelling house. This right is exercisable by giving notice in writing to the PRs within 12 months of the grant of letters of representation to them. During this 12 month period, the PRs cannot sell or otherwise dispose of H’s interest in the dwelling house without W’s consent, unless this is necessary for purposes of administration and there are no other assets available. W can require the appropriation of the dwelling house, whether H was a freeholder or leaseholder. However, it is expressly provided in the AEA that the right cannot be exercised if H held a tenancy which would expire or could be determined by his landlord within two years of H’s death. The AEA also specifies four situations in which the right is exercisable only with the consent of the court, namely where: •
the dwelling house is part of a larger building and the interest in the whole building falls within H’s residuary estate;
•
the dwelling house is held with agricultural land and an interest in the agricultural land falls within the estate;
•
the whole or part of the dwelling house was at H’s death used as a hotel or boarding house; or
•
a part of the dwelling house was used for some nondomestic purpose.
Section 41 of the AEA provided for the exercise of the power of appropriation only if the value of the asset to be appropriated was less than or equal to the entitlement of the beneficiary to 148
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whom it was being appropriated. Thus, if the dwelling house in which H and W lived was valued at £220,000 while W’s entitlement as T’s surviving spouse was worth £200,000, no appropriation could be made under s 41. By contrast, under the IEA 1952, the surviving spouse’s right of appropriation exists whether the value of the dwelling house is less than, equal to or exceeds the value of W’s entitlement as the surviving spouse, although in the latter case, she will have to pay the difference. See Re Phelps (1979). The extent of the entitlement of the intestate’s issue
The entitlement of the issue of the intestate will depend on whether or not the intestate was survived by his or her spouse. (1) Where there is a surviving spouse: After the surviving spouse has taken the personal chattels and their statutory legacy, the remaining estate is to be held on statutory trusts with onehalfbeing held on trust for the spouse for her life, remainder to the issue and the other half being held on trust for the issue. (2) Where there are issue but no surviving spouse: The intestate’s entire residuary estate shall be held on statutory trusts for his or her issue. (3) The substance of the statutory trust: Section 47(1) of the AEA provides that where the residuary estate or any part of it is directed to be held on statutory trusts for the issue of the intestate, this means in effect that: •
any children of the intestate who are living at his death will be entitled in equal shares;
•
if a child of the intestate predeceased him, any issue of the deceased child living at the death of the testator will take in equal shares whatever share of the intestate’s estate their parent would have been entitled to if he or she had been alive at the intestate’s death;
•
no child or other issue of the intestate becomes entitled to a vested interest in his or her share until he or she attains the age of 18 or marries under that age;
•
if a child or other issue of the intestate was en ventre sa mere at the time the intestate died, such child or other issue once it has been born, is deemed to have been living at the death of the intestate. 149
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Example: In accordance with the above where it happens, for instance, that: • Alan a widower dies intestate in 1999 leaving a residuary estate worth £120,000; • Alan is survived by two adult sons Ben and Carl and also had a another son Dan who died in 1991 and a daughter Frances who died in 1992; • Dan died without issue, while Frances is survived by an adult daughter Grace and also had a son Edward who died in 1993 leaving two sons Horace, aged 16 and Ian aged 14. Alan’s residuary estate will be divisible as follows: (i) £40,000 to Ben; (ii) £40,000 to Carl; (iii nothing to Dan; (iv)the £40,000 to which Frances would have been entitled will be divided into two with £20,000 going to Grace; and £10,000 held on trust for each of Horace and Ian respectively, contingent on their attaining the age of 18 or getting married before then. If Ian dies at 15 without having married, his contingent share of £10,000 will pass to Horace. If both Ian and Horace die before attaining the age of 18 or getting married, the £20,000 to which they are contingently entitled will pass to Grace. The hotchpot rule
This rule is provided for in s 47(1)(iii) of the AEA. It requires certain benefits conferred by the intestate during his lifetime on his child to be brought into account in determining what share that child or any issue claiming under him will be entitled to
