Succession

Question 1

Succession

Answer 1

The rules of succession law govern what happens to an individual’s property when they die. The Succession Act 1965 (SA 1965) dictates these rules, it entered into force on 1 January 1967.
Before the Succession Act 1965, there was the Wills Act 1837.

Question 2

Testator / Testatrix

Answer 2

The person who makes the will

Question 3

Beneficiary

Answer 3

A person who benefits from the will

Question 4

Codicil

Answer 4

An instrument executed by a testator for adding to, altering, explaining or confirming a will that was previously made by her.

Question 5

Holograph will

Answer 5

Wills created in the testator’s own handwriting

Question 6

Grant of probate

Answer 6

A grant of representation issued from the Probate Office (in the case of testacy)
Probate Office: deals with non-contentious probate issues

Question 7

Letters of administration

Answer 7

This grant allows an administrator to deal with the deceased person’s estate (in the case of intestacy)

Question 8

Personal representatives

Answer 8

Personal Representative
- Will: Executor/executrix
- No Will: Administrator

Very important role: calls in monies owed to the estate and pays debts attached to the estate.

To do this, they require a grant of representation (grant of probate or letters of administration).

Question 9

Gleeson v Feehan (No 1)

Answer 9

General principles for time periods:
- Anyone seeking to benefit under a deceased person’s estate has six years to make an application from the date of the grant of probate/ grant of letters of administration- exceptions in relation to incapacity etc.
- The Executor/ Administrator has 12 years to call in monies owed/ recovery of land concerning the deceased person’s estate from the date of the grant of probate or grant of letters of administration.

Question 10

General principles - a will takes effect on death

Answer 10

A will has no effect until the death of the testator. Wills are said to ‘ambulatory’ until death. Until death, the testator has the power to revoke the will, and this applies notwithstanding a declaration to the contrary.
Exceptions: (a) contracts by the testator (b) mutual wills

Question 11

General principles - a will speaks from death

Answer 11

Wills are construed according to their meaning at the time of the death of the testator, unless a contrary intention appears from the will (s89 SA 1965)
Exceptions: (a) ‘armchair principle’ and (b) s26(2) of the Adoption Act 1952

Question 12

Capacity

Answer 12

A will must be made by a person who has attained the age of 18 or is or has been married and is ‘of sound disposing mind’ (s. 77(1) SA 1965).

Under equity, the courts can refuse to grant probate of a will where it is not satisfied that the will was made under the free will of the testator, for example in the case of ‘undue influence’.
The burden is on the person alleging the undue influence to prove it.

Question 13

s78 Succession Act 1965

Answer 13

The formalities for making a will
1. Wills must be in writing
2. Signature of the testator
3. Requirements of witnesses

Question 14

s86 SA 1965

Answer 14

Alterations to a will are valid so long as they are attested in the same way as the will itself.

In Re Myles, deceased (1993), a number of changes were made to a holograph will and initialled by the testator, but not signed or witnessed by witnesses. The grant of probate was declined.
- Presumption that alterations were made after execution of the will
- Will had to be read without the alterations.

Question 15

s85, SA 1965

Answer 15

Four methods of revoking a will:

1. Will or codicil:
   - A will can be revoked by a later will or codicil (s85(2) SA1965).
   - A Court may find that a will has been revoked by implication, where a later will is inconsistent with the contents of an earlier one.
   - Generally, a testator will insert a clause at the beginning that states ‘I hereby revoke all former wills…’
2. Destruction:
   - s85(2) SA1965 states that a will can be revoked by ‘by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it’.
   - Here, there must be both a physical destruction coupled with the mental intention to destroy the will.
   - Cheese v Lovejoy [1877]: the testator drew a line with a pen through the will, wrote ‘revoked’ on the back of it and threw it into the waste paper basket. The housekeeper was present while this happened, later retrieved the will and produced it upon the death of the testator. The will was admitted to probate because it continued to operate as a valid will.
3. Marriage:
   - s85(1) of the SA1965, as amended by the Civil Partnership Act 2010 reads:
   - A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.
4. Conditions:
   - This is where the revocation is subject to a particular condition being fufilled. When the condition is fulfilled, the will is revoked.
   - This is known as the doctrine of ‘dependent relative revocation’, and provides that where a subsequent will is never made or is invalid, the previous will is operative and has not been revoked.
   - This normally arises in the context of a revocation being dependant on the creation of a subsequent will.

Question 16

s87 SA 1965

Answer 16

Revival
A will that has been destroyed cannot be revived (s87 SA 1965).

Where a will has not been destroyed, it can be revived by re-executing it or by executing a codicil showing an intention to revive the will (s87 SA1965).
The effect of this is the same as if a new will had been created on the date of the revival.

Question 17

Lost wills

Answer 17

There is a presumption that a lost will was destroyed intentionally where it is known that the testator created a will, but the will is nowhere to be found.

The presumption can be rebutted where there is evidence of surrounding circumstances such as accidental destruction by a fire or the possibility that the will was intentionally destroyed by a relative.

Question 18

Construction of wills

Answer 18

Sometimes the content of a will may be ambiguous or unclear. Where this happens, the court will rely on a series of rules to interpret the will, these are rules of construction.

There is a presumption against intestacy- this means where there are a number of ways in which the will can be interpreted, one of which will find the will to be operative, this interpretation is to be used (s99 SA 1965)

Thus, courts are empowered to construct an ambiguous clause in a manner that makes it effective, rather than in a manner that will invalidate the will.

This is reasonable, given that the court has to consider the intention of the testator. Moreover, the fact that a testator has gone to the trouble of adhering to the formalities to create a will means that they clearly intended not to die intestate.

Question 19

Construction of wills - The intention of the testator

Answer 19

The general principle concerning the construction of wills is that Courts attempt to carry out the intention of the testator as expressed in the will.
The court’s duty is to give effect to the intention of the testator notwithstanding how peculiar it may be.

Specific intention in one part of the will overrides a general one.

It is also a general principle that the Court will not re-write a will.
However, the Courts may omit words which run contrary to the testator’s intent.

Question 20

Construction of wills - A will speaks from death

Answer 20

Wills are construed according to their meaning at the time of the death of the testator (s89 SA 1965)

However, there are exceptions to this principle, for example, the ‘armchair principle’ (where the court puts itself in the position of the testator at the time the will was written) and s. 26(2) of the Adoption Act 1952.
In addition, it is open to a testator to specify an alternative time from which a gift is to be interpreted.
E.g. a testator can state; ‘all the houses owned by me at present’ are bequeathed to ‘all my children now alive in equal shares’, which will have the effect of distributing all the houses the testator owned at that time to their children at that time (Re Willis (1911)).

Question 21

Butler v Butler [2006]

Answer 21

Construction methodology
Rules set out by Lowry LCJ in Heron v Ulster Bank Ltd (1974) and followed in Ireland (in Butler v Butler [2006]):

1. Firstly, consider the relevant portion of the will as a piece of English in an effort to extract its meaning.
2. Secondly, seek to compare that portion with other sections from the will in order to seek confirmation of the apparent meaning of that portion. If any ambiguity or contradiction remains then it is useful to consider the overall scheme or framework of the will for the purposes of discerning what the testator was trying to achieve by its terms.
3. Thirdly, where any doubt remains, the court must then determine whether any modification is required to resolve that ambiguity or so as to provide harmonious sense to the meaning of the will.
4. Fourthly, the court should examine whether the rules of construction or the provisions of the relevant legislation provide authority for the court to make the necessary modifications.
5. Fifthly, consideration must be given to any rules of law which would prevent the particular course of action proposed to save a will.
6. Finally, although “no will has a twin brother” the court may have regard for precedent as a guide to how judicial minds have interpreted words in similar contexts.

Question 22

Freedom of testation

Answer 22

Freedom of testation: the Succession Act 1965

Maintenance obligations. It’s therefore a moral duty at least up to the age of majority (18). s117 is for children and s111 for spouses.

Question 23

Restrictions on freedom of testation

Answer 23

Testamentary freedom is the concept that one should be allowed to leave property to whoever they choose.

However the SA 1965 introduced measures restricting testamentary freedom in relation to surviving spouses and children of the testator
- (Amended by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010)- extended to civil partners
- Surviving spouses/ civil partners: legal right (s111 SA 1965)
- Children: application for ‘proper provision’ (s117 SA 1965)

Policy justifications:
- Moral duty of the testator (particularly in marriage)
- Welfare need- ‘privatisation the welfare obligation’ of the State

Question 24

Legal right of a spouse / civil partner

Answer 24

Where the testator (T) dies with a valid will- regardless of the provisions of the will:
- leaves and spouse / civil partner and no children = ½ estate
- leaves spouse / civil partner and children = 1/3 estate

The legal right takes ‘priority over devises, bequests and shares on intestacy’ (s112 SA 1965) – as such it takes precedence over gifts in a will (Dwyer v Keegan (1997))

Spouse/ civil partner can renounce legal right share (s113) (s113A)
- Ante nuptial contract
- Written document executed after marriage and during life of T

Where there is already a gift in a will, spouse/ civil partner has to exercise ‘right of election’ between the right share and the legacy in the will (s115 SA 1965)
Unless it is expressed that the gift is in addition to the legal right share, s114(1) SA 1965)

Spouse has to be notified in writing by the personal representative (s115 (4) SA 1965).
Election must be made within 6 months of receipt of notification/ one year from taking out representation on deceased’s estate, whichever is longer

In default of election, spouse/ civil partner takes under the will (s115(1)(b))

Question 25

Legal Right spouse/ civil partner: election

Answer 25

Legal Right spouse/ civil partner: election

Re Cummins [1997]: SC held that legal right does not depend upon the surviving spouse electing between it and a bequest in the will or a share on intestacy.
Thus, if a T does not make provision for spouse in the will, the spouse still has the legal right share which vests on the death of the T.

Where there is already a gift in a will:
A gift in a will is deemed to be in satisfaction of the legal right share (s114)
Spouse can choose between gift / legal right share (unless it is expressed that the gift is in addition to the legal right share)

Partial intestacy- spouse/ civil partner can choose between: Legal right v Intestacy rules, and the legacy under the will (s115(2)(a) SA)

Question 26

Extinguishing / renouncing to a legal right share

Answer 26

A spouse’s legal right share can be extinguished:
- If spouse is guilty of desertion for more than 2 years prior to the death of the testator: s120. (see above)
- If convicted of the homicide of the testator (see above)
- If convicted of an offence against the testator, their spouse or child, where the punishment is a sentence of 2 years or more (see above)

The legal right share may be renounced by
- judicial separation - the Courts can make an order cancelling the rights in succession.
- decree of divorce – the legal right share ceases contemporaneously with the dissolution of the marriage: s14 Family Law (Divorce) Act 1996 (and see above).

Question 27

Succession Act 1965, s117

Answer 27

s117 (1): if testator has failed in his moral duty to make proper provision for the child, the court may order that such provision shall be made.
(2): Court will consider the application from the pov of a prudent and just parent.
(3): Order shall not affect the legal right of a surviving spouse
(6) child has 6 months to make the application

Question 28

Two-stage test for applying Succession Act 1965, s117

Answer 28

Court’s function when faced with a s117 application to decide (Brian Spierin, Succession Act 1965 and Related Legislation: A Commentary):
1. Has there been ‘a positive failure in moral duty’
2. If yes, the nature of the provision ordered by the court.

Question 29

Moral duty

Answer 29

a) Moral duty assessment is based on the situation at the time of death.
Parent is assumed to have knowledge of the child’s situation at the time of death (includes tax implications, Re NSM Deceased (1973))

b) Lifetime provision: child that has been provided for during the lifetime of the parent may not be successful in an application under s117.

c) Other moral obligations:
- Moral obligation of the parent to other non-applicant children or non- beneficiaries can also be taken into account in special circumstances (C (K) v F (C) 2003)
- Moral obligation is also owed to dependent parents of siblings and greater provision can be given to sick children (ML & AW v ML (1978))

d) Special needs of children: Court must take into account the medical or other needs of children that result in a lesser ability of the child to look after themselves.
- Assumption that testator knows of the condition and supports available to the child.
- S(D) v M(K) & Anor (2003): A daughter with diabetes was allowed more than had been provided for her in her father’s will.

e) Equality: s117 does not require parents to treat all children equally. (Re LB, deceased [1998])

f) The nature of the parent-child relationship: the behavior of each party may have an impact on the extent of the moral duty.
JH & CH v AIB (1978): The fact that the testator feels somewhat put out or neglected by the child will not invalidate the extent of the moral duty towards them- even where the parent and child are estranged.

g) The needs of grandchildren are not the basis of an application

Question 30

Factors that should be taken into account by the court for s117 application

Answer 30

Kenny J. confirmed that whether there had been a breach of the moral duty to make proper provision must be decided by objective considerations must depend on the following 5 factors:
(a) the amount left to the surviving spouse or the value of the legal right if the surviving spouse elects to take this;
(b) the number of children, their ages and their position in life at the date of the deceased person’s death;
(c) the means of the testator;
(d) the age, financial position and prospects in life of the applicant;
(e) whether the deceased person has already made proper provision for the child
The existence of the duty must be judged by facts existing at the date of death

Question 31

Intestacy

Answer 31

This is where someone dies without a valid will

Partial intestacy: where someone dies with a valid will, but only part of the property is disposed of by will- the remainder is disposed of according to the rules of intestacy

When a person dies (partially) intestate:
1. An administrator must be appointed
2. The administrator must apply for a grant of letters of administration
3. All real property and personal property are held on trust for the beneficiaries by the administrator (s. 10 SA)
4. All debts and expenses must be paid out of the deceased’s estate and then the estate can be distributed (s. 66 SA)
5. In the case of partial intestacy: Debts must be paid; the will must be distributed and remaining assets must be distributed

Question 32

Intestacy: Rules of distribution

Answer 32

Order of distribution
1. Spouse 2/3 Children(s) 1/3
2. Parents
3. Siblings
4. Nieces + nephews
5. Closest Blood Relative
6. State

Question 33

Donation mortis causa

Answer 33

The following requirements must be shown:
1. The donor must have contemplated death: this has to be more than a fear of dying. It doesn’t matter that the donor dies from another cause- Mills v Shields and Kelly (1948)

2. Gift to first become effective on death: gifts are revocable up until death
3. Donor delivers subject-matter: Gift must be delivered to the donee (the person receiving the gift), this can be done by an agent of the donor (the person giving the gift)
   In the case of real property: there must be a ‘parting of dominion’
4. Subject-matter must be capable of passing in this manner: Must be a physical parting of the property
   - In the case of real property: a house was the subject of DMC in Sen v Headley (1991). Here, the deceased said ‘The house if your Margaret. You have the keys…The deeds are in the steel box’. The donor died three days later. The D was the administrator who argued that a house could not amount to DMC gift. The Court disagreed.
5. The DMC has not been revoked
   Automatic revocability if the donor recovers from the condition that caused them to contemplate death

Question 34

Estoppel

Answer 34

Here, the claimant must demonstrate to the court that the deceased led them to believe that they would receive an interest in their estate, and that the claimant acted to their detriment in this regard.

In such instances, the beneficiaries of the estate will hold the property on trust for the successful claimant.