Law of Wills and Succession: Chap 1- Wills: Validity and Revocation

Question 1

Which act allows cohabitees to apply to court for a share of the Deceased’s assets?

Answer 1

The Inheritance (Provision for Family and Dependants) Act 1975

Question 2

Which two Acts determine who can make a Will?

Answer 2

1) Wills Act 1837
2) Administration of Justice Act 1982

Question 3

Which case established that a legal adviser owes a DoC not only to the T but also to the beneficiaries?

Answer 3

White v Jones 1995

Question 4

Who can make a will?

Answer 4

anyone aged 18+ of sound mind and acting voluntarily

Question 5

What are the 6 characteristics of a will?

Answer 5

1) it covers the disposition of property and other arrangements;
2) it is a declaration of intent
3) it must be a prescribed form (with some exceptions)
4) it can always be revoked (cancelled)
5) it takes effect on death
6) (if properly written) it will dispose of the T’s entire estate as at the DoD, including assets acquired by the T after execution (i.e signing)

Question 6

What are the 2 consequences of D owning a property “joint tenants”?

Answer 6

1) D’s share will not pass to her PRs, it doesn’t pass under her will/ under intestacy rules
2) D’s share doesn’t count towards any gift left to the surviving owner in the will/ entitlement under intestacy rules

Question 7

State 3 reasons why someone should make a Will

Answer 7

3 of the following:
1) to avoid the rules of intestacy
2) the T can control what happens to their property when they die
3) to specify the execs, who may be professional
4) it can include wishes such as burial arrangements or organ donation
5) gifts of specific items can be included
6) to name guardians for children
7) to include thanks/ gifts for kindness show during lifetime as well as gifts to charities
8) tax planning

Question 8

What 3 elements must be satisfied for a will to be valid?

Answer 8

1) T must have sufficient mental capacity
2) T must have the necessary intention
3) the proper legal formalities must be met

Question 9

Which case set out the 3 criteria for capacity

Answer 9

Banks v Goodfellow 1870

Question 10

What are the 3 criteria for capacity set out by Banks v Goodfellow 1870 T must understand when making a Will?

Answer 10

1) T must understand the nature of the act and its results
2) The extent of their assets
3) any moral claims against their estate which they ought to consider

Question 11

True or False: T should be free from any “insane delusions” which may affect the terms of their will. EXT: explain what is meant by “insane delusion”

Answer 11

True
EXT: “insane delusion” i.e. cutting a child out of their will because they think, wrongly, that the child is trying to murder them.

Question 12

Which Act expands on the criteria for capacity?

Answer 12

Mental Capacity Act 2005

Question 13

A person is presumed to have capacity unless it is established they do not. Where is this stated in the MCA 2005?

Answer 13

S1(2) MCA 2005

Question 14

How is a lack of capacity defined under S2(1) MCA 2005

Answer 14

If he is unable to make a decision for himself…because of an impairment of, or in disturbance in the functioning of, the mind or brain.

Question 15

What 4 things must the T be able to do to make a decision for himself? EXT: where is this stated?

Answer 15

1) to understand the information relevant to the decision
2) to retain that information
3) to use or weigh that information as part of the process of making the decision
4) to communicate his decision
Ext: s3(1) MCA 2005

Question 16

What was established in Scammel v Farmer 2008?

Answer 16

MCA 2005 was intended to supplement Banks v Goodfellow - not replace it

Question 17

How did the judges in Fischer v Diffley 2013 apply the criteria in Banks v Goodfellow 1870 and MCA 2005

Answer 17

3 stage criteria from Banks v Goodfellow 1870 was applied ss1 and 2 of MCA 2005 supplemented the 3 stage criteria

Question 18

In which case was the judge unsure about the relationship between MCA 2005 and Banks v Goodfellow?

Answer 18

Walker v Badmin 2014

Question 19

In summary what did the Judge in James v James 2018 criticize MCA 2005 and Banks v Goodfellow for?

Answer 19

MCA 2005 isn’t relevant in assessing after death, whether the T had testamentary capacity at the time the will was made
Banks v Goodfellow the length of time the principles set out by the case have been in place

Question 20

which case reinforced the evidential burden stated by S1(2) MCA 2005

Answer 20

Ashman v Thomas 2017

Question 21

Key v Key 2010, considered which strong recommendation of the courts further?

Answer 21

that medical advice should be taken by a legal adviser where capacity is in doubt

Question 22

In which case was the solicitor who drafted the disputed will criticized despite obtaining a consultant psychiatrist’s opinion which concluded T had capacity when making a will?

Answer 22

Charles v Fraser 2010

Question 23

Which case discussed the position of a solicitor faced with preparing a will for a dying man?

Answer 23

Wharton v Bancroft 2011

Question 24

Which case found a solicitor negligent for not preparing a will quick enough before a client died?

Answer 24

Hooper v Fynmores (a firm) 2001

Question 25

Why was probate refused in Nicholas v Nicholas 1814?

Answer 25

Evidence was produced to show that the “will” was a specimen and was only a joke

Question 26

why was the will in Poole v Everall 2016 held invalid?

Answer 26

Despite having capacity, T lacked knowledge and approval

Question 27

Under which Act can you find the formalities of a will?

Answer 27

S9 WA 1837 as amended by Administration of Justice Act 1982

Question 28

Under S9 WA 1837 (as amended by AJA 1982) what formalities must be complied with when making a will?

Answer 28

1) it is in writing and signed by the T, or by some other person in his presence and by his direction
2) it appears that the T intended by his signature to give effect to the will
3) the signature is made or acknowledged by the T in the presence of two or more witnesses present at the same time
4) each witness either:
a- attests and signs the will or
b- acknowledges his signature

Question 29

True or False: a will written on an egg shell was declared valid?

Answer 29

True- Hodson v Barnes 1926

Question 30

What did Barrett v Bem and others 2012 deal with?

Answer 30

A will being signed on behalf of the T

Question 31

What did the CoA hold in Wood and Another v Smith and Another 1991?

Answer 31

That a handwritten will made 2 days before Death was valid because it commenced with “My Will by Peter Winterbourne” It wasn’t signed, but the writing of the name and disposition were all one operation.

Question 32

In which case was a Will held as valid despite the T not having his signature witnessed at the time of signing it himself?

Answer 32

Couser v Couser 1996

Question 33

Why was the will in Re Whelen 2015 held invalid?

Answer 33

Because not only were the witnesses not present when T signed, T was no present when the witnessed signed the will. it was irrelevant as to whether the witnesses knew they were signing D’s will.

Question 34

In which case did the judge say “… the presumption of due execution had been successfully displaced and the 2013 will had not been executed in accordance with the law”

Answer 34

Burgess v Penny and Another 2019

Question 35

What does the WA 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 do?

Answer 35

provides for the remote witnessing of wills during the COVID-19 pandemic.

Question 36

Where can guidance on Privaleged Wills be found?

Answer 36

s11 WA 1837

Question 37

who can make a privileged will?

Answer 37

1) soldiers and airmen in actual military service
2) mariners or seamen at sea
3) members of HM naval or marine forces in actual military service

Question 38

What was held in Re Booth 1926 about privileged Wills

Answer 38

T made a will while on actual military service in 1882 which was held to be valid after his death in 1924

Question 39

What did the following cases consider: Re Wingham 1948, Re Newland 1952, Re Estate of Ashely Edward Servouz- Gavin 2009 and Re Rapley 1983

Answer 39

the meaning of actual military service

Question 40

which section of WA 1837 states witness must not be a:
a beneficiary or the spouse / civil partner of a beneficiary named in thr will

Answer 40

section 15 as amended by para 3 Sch 4 Civil Partnership Act 2004

Question 41

Gray v Richards Butler 2000 considered whether a solicitor who had sent the client their will to sign with very comprehensive instructions but the client failed to comply with them. What was decided?

Answer 41

The solicitor wasn’t negligent in this instance.

Question 42

True or False: the courts can waive the forfeiture rule

Answer 42

True- this can be waived either partially or completely

Question 43

Which case considered the Forfeiture Rule and Death by dangerous driving?

Answer 43

Amos v Mancini 2020

Question 44

When may a Will be revoked?

Answer 44

1) marriage or civil partnership
2) another will or codicil
3) destruction
4) a properly executed declaration by the T

Question 45

Which section of WA 1837 states a later marriage will automatically revoke a will?

Answer 45

S18

Question 46

Which case confirms that a general intention to marry in the will is not sufficient to avoid a will being revoked automatically?

Answer 46

Sallis v Jones 1936

Question 47

How can the automatic revocation of a will by marriage be avoided?

Answer 47

If the will is made “in expectation of marriage” as per s18 (3) WA 1837.

Question 48

Which section of WA 1837 provides guidance on the effects of divorce, or dissolution of a civil partnership?

Answer 48

section 18

Question 49

S18c WA 1837 sets out provisions when an executor or trustee is who?

Answer 49

An Ex- Spouse or Ex-Civil Partner

Question 50

Under which act can a former spouse or civil partner make an application for financial provision?

Answer 50

The Inheritance (Provision for Family and Dependents) Act 1975

Question 51

What is the definition of destruction and which section of WA 1837 can this be found?

Answer 51

Burning, tearing or otherwise destroying, s20 WA 1837

Question 52

Which case confirms that for a will to be effectively revoked by destruction it must be done in the T’s presence?

Answer 52

Re Kremer 1965

Question 53

What did LJ James say in Cheese v LoveJoy 1877 about the destruction of a will?

Answer 53

“all destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two”

Question 54

In which case did the courts allow a certified copy will be allowed for Probate purposes?

Answer 54

Re Moore (Deceased) 2019 (aka Blyth v Sykes)

Question 55

In which case was a will revoked by letter?

Answer 55

Re Spracklan’s Estate 1938

Question 56

What are the 3 conditions which must be satisfied for a donatio mortis causa to be valid? (+cases)

Answer 56

1) The gift must be made in contemplation of the donor’s death(Re Craven’s Estate 1937): the donor must reasonably believe their death is in the near future and they are not merely thinking about death. The court will infer that the gift was made in contemplation of death if it was made during the last illness (Gardner v Parker 1817).
2) the gift is conditional on death. The donor may change their mind before death or can reclaim the gift if they live.
3) The donor must actually transfer, or arrange for the transfer of, the gift to the donee. If the gift is an item of jewelry which can be physically handed over with ease, there is little problem. Where the item is bulky or has no physical form it is sufficient to hand to the donee the means by which ownership can be determined. The donee taking possession of a key to a jewelry box would be evidence of the transfer of the contents.

Question 57

Which case proved that land can be a valid gift by the means of a death bed gift?

Answer 57

Sen v Headley 1991 followed by Vallee v Birchwood 2013

Question 58

In which case did a gift of land fail as it was not considered a death bed gift? Ext: why was it not successful a death bed gift?

Answer 58

King v The Chiltern Dog Rescue 2015-at the time of the gift the T wasn’t “contemplating her impending death”

Question 59

True or False: a donatio mortis causa can be revoked at any point up until the DoD by the T?

Answer 59

True

Question 60

What is said in Strong v Bird 1874 about a death bed gift being attempted by D?

Answer 60

the PRs of the estate aren’t compelled to rectify the defect. The gift may be saved if the donee obtains title to the assets in some other way, that is, as PRs