Proposition of property upon death Flashcards
wills act 1837 s9?
in writing, signed by testator, acknowledge signing before 2 witnesses. witnesses need to sign and acknowledge presence infront of testator
when witnesses sign the will do they need to do it infant of each other?
No
Origins of statue of frauds 1677?
the will becomes a public document.
functions of s9 formalities?
ritual, channelling, evidentiary, protective
ritual function
carrying out the execution of the will
channelling function
should be clear where there is a will and where there is not
evidentiary function
should produce evidence
protective function
2 witnesses provides extra protection
Can you execute a will without following the functions?
you can execute it without following the ritual
what is a Secret trust?
allows testators to leave property secretly, they operate outside of the will
Blackwell v blackwell
testator left 12k to beneficiaries, instructed them to pay to mistress and illegitimate son
do secret trusts need to abide by s9?
No
what is Fully secret trusts
No reference to the secret trust in the will
Re gardner no 1 1920
may have fully secret trust on an intestacy
three requirements for a valid fully secret trust?
intention, communication and acceptance.
what case outlined the 3 requirements needed for fully secret trust?
ottoway v norman 1972
what is intention
intention to create a trust: certainty of intention, subject matter and objects. kasperbauer v griffith 2000
what is Communication
secret trusts must be communicated to the secret trustee. wall grave v ebbs 1855
re boyes 1884
terms of trust in letter after death. it failed
re keen 1937
may be by a sealed envelope given before death
communication to one trustee: case?
re stead
communication- tenants in common
if communication before or after death, only A will be bound, B will take absolutely
communication- joint tenants. before execution
communication before execution- promise binds A and B
communication- joint tenants- after execution
promise binds only A, B can take absolutely
what is Acceptance
secret trustees must accept the imposition of a trust. may be accepted either expressly or by acquiescence
what is burden of proof?
balance of probabilities
what did ottoway v norman 1972 say about the burden of proof
‘clear evidence’
what did re snowden 1979 say about burden of proof
ordinary civil standard of proof (balance of probabilities)
what is a half secret trust?
will refers to the existence of a trust but no mention of its terms- re keen 1937
3 requirements of blackwell apply to half secret trust
intention, communication and acceptance
when does communication need to happen in a half secret trust?
before or at the execution of the will
failure of a secret trust- half secret trust
secret trustee holds property on resulting trust for the estate
failure of a secret trust- fully secret trust
beneficiary under the will takes absolutely
exception to the failure of a secret trust
sufficient evidence to show beneficiary under the wills holds on trust but FST fails for other reasons, then a resulting trust for the estate
s15 wills act 1837
beneficiary who attests the will looses any bequest under the will. however the attesting witnesses can tae as a secret beneficiary under a secret trust
what is the succession rule?
if a beneificiary under the will dies before the testator then the gift lapes
what type of trust is a secret trust?
constructive trust due to being imposed upon the conscience of the secret trustee
what would happen if it was an express secret trust?
it would need to comply wth formalities in relation to trusts of land
what is a mutual will?
couple execute wills in a similar terms leaving everything to the surviver and then identified beneficiaries
does it have to be spouses for mutual wills?
not always, can be sisters
what do they agree at the time of making mutual wills?
not to revoke the wills, equity binds the survivor to the promise.
case for mutual wills with sisters
charles v fraser 2010
rationale for mutual wills
equity uses constructive trust. survivor holds the property on trust in accordance with the mutual will
charles v fraser 2010
last will of survivor made changes to terms, went to probate. property went under the terms in the mutual wills
does a mutual will need to act in accordance in s9?
yes,
what happens if the survivor revokes the mutual will e.h. by remarrying or executing a new one
equity still imposes an equitable obligation. s18 wills act
does the trust imposed on the survivor operate inside or outside of the will
outside and limits testamentary freedom. re dale 1994- required to leave property under terms of mutual wills
what is the requirements of a mutual will?
made pursuant to an agreement to not revoke the mutual wills. a binding event occurs tying them to an agreement.
where is the agreement not to revoke?
usually found in the will ideally, agreement is contractual in nature.
what did re dale 1994 say in terms of consideration?
consideration for the contract is the death of the first testator leaving the mutual will unrevoked.
pursuant to an agreement- life interest case
re hagger 1930- joint will with life interest.
pursuant to an agreement- life interest
survivor gets life interest in the deceased estate
pursuant to an agreement- absolute interest case
re green 1951- absolute interest in the property. husband and wife left absolute interest as consideration for leaving it as they agreed.
pursuant to an agreement- no property left to eachother
re dale 1994- husband and wife left no property to each other. on each death entire estate to be divided equally between son and daughter wife changed will so daughter only £300 and son got everything else.
in re dale 1994 what was the outcome of the case
equity held her to the mutual will agreement
how to prove the existence of an agreement?
laid out in the will, look at other extrinsic evidence, mere fact that they are made simultaneously and on similar terms is insufficient
re oldham 1925
husband and wife left property together absolutely. wife remarried executes a new will giving new husband life interest, remainder to her relatives. greater difference between life interest than absolute (less likely there is an agreement to revoke)
what would happen if a solicitor was involved
evidence must be clear and satisfactory. re goodchild 1997- solicitors evidence used. stated would never advise a client to make a mutual will
do all terms need to be laid out?
the agreement is viewed as a contract of law. re walters 2008 state not all terms need to be laid out
s2 property (miscellaneous provisions) act 1989
generally not covered unless a joint will, one document containing all terms, both signed or separate documents you have exchanged.
re hobbled 2006-
wife was the survivor, husband executed a codeaseal before he died to revoke the mutual will. discovered afterr her had died. sufficient to revoke
can a will be revoked before the binding event?
no
does notice need to be given for revocation?
yeah. dulfour v pereira 1769
when is the binding event?
when the first testator dies leaving their will unrevoked
when does the constructive trust apply?
imposed at the time of the first testators death. Re walters
what property can be bound by the mutual will?
property indicated by the agreement
what property was indicated in the agreement in re green
specific instructions left to each other by husband and wife
property bound by the mutual will in re hanger 1930
bound both wife and husbands entire estates, property acquired later on is not covered, only property of both at the time of death of first testator
what is donation mortis causa
death bed gift, gift by cause of death
is a donatio mortis causa conditional on anything?
death of the donor and is revocable until they die
3 requirements of a donatio mortis causa
conditional on death, contemplation of the death and part with the domion
what case outlines the 3 requirements
re cravens estate no 1 1937
what happens when its conditional on death?
only effective on death.
what terms need to be used for conditional on death
not express terms- gardner v parker 1818
what happens if the donor recovers?
the donatio must be returned
what is made in contemplation of death?
cannot be vague, death must be expected in the near future.- re cravens no 1 1937
is contemplating death ok?
contemplating death as a possibility is enough, you do not need to literally be on your death bed.
wilkes v allington 1931-
suffering from cancer, refused treatment believed he was a doomed man.
what happens if they die of another cause
they do not need to die of the expected cause. wilkes v arlington 1931
is contemplation of death a subjective or objective test?
king v dubrey- an objective test, subjective test is too open
donor must part with dominion
requires intention to part with it and sufficient delivery of it. giving directions for something when you die is not enough
possession v dominion
have conditional ownership as absolute ownership would be a gift
vallee v birchwood- possession
more than basic possession. conditional ownership
how do you hand over possession?
handing over physical possession, remains access to the subject matter/evidence of title
what can be the subject matter??
land may be transferred by donatio mortis causa
land transfer case
duffield v elves 1827- not the land itself but the mortgage
can you hand over shares by donatio mortis causa
some confusion, still mixed authority on shares
re weston 1902
shares were invalid
