Succession Flashcards
Testacy - Making a Valid Will - Capacity
What parts of what act speak to the statutory requirements for capacity? what do they require?
S.77(1)(a): A testator must be 18 years old or over, unless someone is married under that age
S.77(1)(b): A testator must be of sound disposing mind.
Testacy - Making a Valid Will - Capacity
Banks v Goodfellow [1870] sets out the test for soundness of a disposing mind, what is the test?
- Testator was committed as a lunatic for months + felt he was being harassed by a ghost.
- But he had always managed his financial affairs independently but accepted at some points in life, would’ve been incapable of making a will.
- Laid down the Banks test for soundness of disposing mind:
(1) The testator must understand that he’s making a will and that a will disposes of prop on his death
(2) The testator must know the assets he is disposing of
(3) The testator must understand and appreciate the claims to which he ought to give effect
(4) The testator must be free of delusions which may affect his decision
Testacy - Making a Valid Will - Capacity
O’Donnell v O’Donnell [1999]
Banks applied in Ireland
- Schizophrenic testator. Applied the test in Banks and based on fact his condition was well managed + no manifestations of schizophrenia at the time will was made as well as fat he was conscientious and
thoughtful in the distribution of his estate, held he was of sound disposing mind.
Testacy - Making a Valid Will - Capacity
Parker v Felgate [1883]
- Soundness of disposing mind at time of instruction, but not at time of execution, will be sufficient if:
(1) The testator actually had soundness of disposing mind at the time of giving instructions
(2) The will was actually prepared in accordance with the instructions
(3) At the time of execution, testator understood he was signing a will for which he’d given instructions, regardless of whether he can remember giving them or could understand the will if it read over to him
Testacy - Making a Valid Will - Capacity
Re Glynn [1990]
Parker applied in Ireland
- Gave instructions to two independent persons (not solicitors) to draw up a will. After this, he had a stroke + was disorientated + unable to communicate verbally/writing. The two visited him in hospital + read the will to him, he nodded + made an X at foot. The will was duly attested by the witnesses.
- Held if he was satisfied the doc reflected his instructions + he knew + approved the contents of them, not nec to prove he knew of the contents of will. Marking was sufficient to show knowledge+approval
Testacy - Making a Valid Will - Capacity
Scally v Ratigan [2011]
- Laffoy J. adopted the dicta of Briggs J. in Re a Dead Person [2010] to the effect that the golden rule is that where a solicitor is instructed by an aged, ill or recently ill person they should arrange an examination by a medical practitioner re capacity.
Testacy - Making a Valid Will - Capacity
Laaser v Earls [2016]
- Where two wills are executed closely in time + at time of execution of later one the testator was so enfeebled by illness he couldn’t sign it but only place a mark, the issue of capacity should be put to the
principal witnesses + medical evidence should be adduced. Ordered a re-trial here as not done.
Testacy - Making a Valid Will - Formal Requirements
What are the formal requirements set out by the act and what section sets them out?
S.78: Provides that for a will to be valid it must be in writing, signed and attested.
Douglas v Umphelby [1908]: The writing can take any form incl. handwriting + can be multiple docs.
Testacy - Making a Valid Will - Formal Requirements Rule 1
What is rule 1 of the formal statutory requirements and what cases speak to the substance of the requirement?
The will must be signed by the testator or by a third party acting on his direction and in his presence.
Douglas v Umphelby [1908]: The writing can take any form incl. handwriting + can be multiple docs.
A signature means any mark intended to execute the will. Seal alone not enough (Emerson [1882])
Testacy - Making a Valid Will - Formal Requirements Rule 2
What is the second statutory rule?
Rule 2 S.78: The signature of the testator or person signing on behalf must be attested by two or more witnesses and must all be present at the time of the signature and capable of seeing the act of signing
Testacy - Making a Valid Will - Formal Requirements Rule 2
Wyatt v Berry [1893]
- Insufficient for witness to acknowledge his signature in the testator’s presence – must actually sign it in the testator’s presence.
Testacy - Making a Valid Will - Formal Requirements Rule 2
Kavanagh v Fegan [1932]
- Witnesses don’t need to see the sig or know he’s signing a will provided they see the act of signing +
where the T acknowledges his sig, the witnesses must\ve had opportunity to see it even if didn’t avail
Testacy - Making a Valid Will - Presumption of Due Execution
Clarke v Early [1980]
- Where a will appears to be executed in compliance with the formal requirements in the Act, a presumption
of due execution arises. Onus of proof shifts to person alleging failure to comply.
Testacy - Making a Valid Will - Presumption of Due Execution
Clery v Barry [1889]
- Court attempted to confine the presumption, in cases of attestation of witnesses, it did not apply where the witnesses were dead or incapacitated or gave unreliable evidence.
Testacy - Making a Valid Will - Presumption of Due Execution
Rolleston v Sinclair [1924]
- There was no attestation clause + the witnesses gave evidence that they were not present when the testator
signed the will. Held the presumption didn’t apply here.
Testacy - Constructing/Interpreting a Will
What is the general interpretive attitude of the Court and what sections apply to this?
Primary role of the court in construction of wills is to ascertain + give effect to the intention of the testator as expressed in the will. General rules:
(i) Court will give ordinary words their ordinary meaning and technical words their technical meaning unless a contrary intention is show.
(ii) S.99: Courts can construct an ambiguous clause in a way that makes it effective (or else invalidity)
(iii) S.89: A will is to be read as though it were written immediately before death.
Testacy - Constructing/Interpreting a Will
What is the general rule on the admission of extrinsic evidence?
General Rule: Court will construct the will within its four corners (i.e. without extrinsic evidence)
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
What is the Armchair Principle?
When terms of a will could be given more clarity by reading them in context of knowledge, circs + habits of T, then extrinsic evidence could be admitted by the ‘armchair principle’ i.e. putting oneself in armchair of T
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Thorn v Dickens [1906] UK
- T left a will simply stating ‘all for mother’. Dispute re interpretation as known to refer to his wife as
mother. Extrinsic evidence was submitted + court decided it was indeed his wife who was entitled to it.
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
What is latent ambiguity?
The common law also allowed for EE in the case of latent ambiguity i.e. where a clause could be said to accurately describe two or more persons or things
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Healy v Healy [1875]
- T gave farm ‘to my nephew Joseph Healy’ then a legacy to ‘Joseph Healy, son of my brother Joseph Healy’ and the residue to ‘the said Joseph Healy’. Two nephews called this.
- One nephew was son of his dead brother James and one was son of living brother Joseph.
- Held, on construction of the will, that Joseph the son of James took the farm + residue. One reason was bc when T used the name ‘J Healy’ w/o qualification was bc he was thinking of Joseph the son of James.
- Court also concluded this displaced the normal inference that the word ‘said’ meant the previous name
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
What is patent ambiguity? what issue can this give rise to?
But where the description accurately described two or more persons or things and they were mentioned elsewhere in the will by descriptions that made their separate identity clear, ambiguity is patent + NO EE.
Issue: Where the will is clear/unambiguous but from a broad knowledge, it doesn’t reflect T’s intention
See Re Julian [1950]
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
How did patent ambiguity operate in Re Julian [1950]?
- J (protestant) left money to the Seaman’s institute, Sir John Rogerson’s Quay. But two Seamans in Dublin. Executrix claimed J intended to bequeath the Dublin’s Seaman’s Institute (Protestant one)
- Tried to bring in EE of J’s affiliation w them, religion + evidence solicitor made an error in address
- Rejected: held there was insufficient ambiguity on the face of the will to allow for admissibility of EE
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
S.90 Succession Act 1965
Introduced to deal with difficulties of patent ambiguity - EE may be admissible to show the intention of the testator in the construction of, or to explain, any contradiction in, a will
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Rowe v Law [1978]
- SC made clear here that s.90 did not have the immense effect predicted.
- T left all prop on trust of which £1k to be used to buy + furnish a cottage for D’s use for life+ ‘any balance remaining’ to be invested for their benefit. Dispute re ‘any balance rem’ referred to the £1k or T’s estate.
- No mistake, contradiction or ambiguity on face of will. So did s.90 allow EE to show an alt meaning of a seemingly clear phrase? Held no: no ambiguity, the £1k was to be invested for D.
- Held s.90 introduced a dual requirement for the admission of extrinsic evidence:
(1) The evidence must go to the actual intention of the deceased and
(2) It must help in the construction of, or explain, a contradiction in the will. - Held s.90 didn’t allow for EE in every case where it helped in construction of the will, only where it was needed in order to construct the will. This is now law in Ireland.
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Re Collins [1998]
Adopted the dual test in Rowe for s.90. Held that otherwise s.90 would allow for EE in all cases + would allow oral statements made before execution of the will to supplement, vary, contradict terms.
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Daly v Murphy [2017]
- Met the requirements of s.90: EE admitted to show T’s intention + to show she intended the residue to be used for both charitable + non-charitable purposes, thus saving it from invalidity due to uncertainty
Testacy - Constructing/Interpreting a Will - Extrinsic Evidence Exception
Black v Ann Sullivan Centre Ltd [2016]
- Contradiction on the face of the will: T had put wrong name of grandniece for part where she gave her apartment, but not for a €10k gift. Niece said she’d no daughter Rosemary, but 3 incl. Barbara
- Held EE admissible: Niece + fam said it was intended to go to Barbara + T had said this was intention
- Court satisfied she intended to bequeath it to Barbara: despite evidence only from family, it helped
explain the contradiction + identify the daughter. Held the EE met the Rowe two-part test.
Testacy - Constructing/Interpreting a Will - The Process of Interpretation
Heron v Ulster Bank [1974]
If there’s an issue w the meaning of a provision, Irish courts apply this test:
- Having first read the whole will, one may with advantage adopt the following procedure:
(1) Read the immediately relevant portion as a piece of English and decide what it means
(2) Look at other material parts + see if they tend to confirm the apparently plain meaning of the immediately relevant portion or do they suggest the need for modification to make sense of it
(3) If ambiguity persists, have regard to scheme of the will + consider what the T was trying to do
(4) One may have to resort to rules of construction + aids such as presumption of early vesting + the presumption against intestacy + in favour of equality.
(5) Then see whether any rule of law prevents a particular interpretation from being adopted
(6) Finally, one may get help from the opinions of other courts and judges on similar words
Testacy - Failure of Gifts in a Will - Gifts to Witnesses
What section governs gifts to witnesses and what does it provide?
S.82: If you witness a will, gift fails: Gifts to witnesses or their spouses have no effect unless spouse wasn’t
married to witness at time will made or gift is one where the witness or their spouse is a trustee of the property
Testacy - Failure of Gifts in a Will - Lapse
What section governs the lapse of a disposition and what are the exceptions?
S.91: If a beneficiary predeceases the testator, their gift normally fails by means of lapse. Exceptions:
(i) S.97: relates to when someone is bequeathed a fee tail in a will but has predeceased the testator
(ii) Gifts where a charity has dissolved. Doctrine of cyprés applies: courts fashion a gift.
(iii) S.98: A gift of something more than a life estate to issue of the T who predecease T but dies leaving living issue won’t lapse but goes to the estate of the deceased’s issue (unless contr intent)
Issue = non-marital + marital kids, kids in womb but not adopted kids.
Testacy - Failure of Gifts in a Will - Unlawful Killing
What is the provision surrounding unlawful killing?
S.120: Prevents someone who’s killed the testator from taking any gift under their will unless the will was made after the time at which the act causing the death occurred
Testacy - Failure of Gifts in a Will - Commorientes
What is the provision for commerientes?
S.5: Applies to simultaneous deaths. May result in failure of a gift made conditional on surviving T for a time.
Testacy - Equitable Intervention in a Will
What three equitable principles can arise in relation to gifts in a will and what are their nuances?
(a) Ademption: Can arise in one of two scenarios: (i) where the property devised no longer exists in the deceased’s estate at time of death (ademption by failure of property) + (ii) where the legacy is deemed to have been satisfied by a later inter vivos portion (ademption of legacies by portion)
(b) Satisfaction: Alters the nature of, or cancels the effect of, a gift in a will where (i) the beneficiary is also a debtor of the deceased or (ii) the beneficiary is a child of the deceased who’s owed a portion or (iii) where there’s a duplication of provision in the will.
(c) Election: If in his will, a T intends to dispose of property that doesn’t belong to him + in the same will to make a gift to the proper owner, then the doctrine of election applies: it requires the owner of the prop to
either accept the gift + give up any rights to the prop or disclaim the gift + take back his prop
Testacy - Restrictions on Testamentary Freedom - Legal Right Share
S.111
Provides for a legal right share of lawful spouses of deceased persons. It entitles the surviving spouse to one half of the deceased’s estate if no surviving issue and to one third if there’s surviving issue. The remaining estate is then disposed of according to the terms of the will.
