Succession Law Flashcards
Person making the will (Section 77 Succession Act 1965 (1965 Act)):
- must be 18 or over;
- act of their own free will; and
- be of sound mind.
Sound disposing mind (animus testandi): Banks v Goodfellow i.e.
(i) did testator in fact understand that she was making a will and that her property would be disposed accordingly on death;
(ii) did testator know the assets she was disposing of; (iii) did testator comprehend and appreciate the claims to which she ought to give effect;
(iv) was testator free from delusions which may have affected her formulation under the will.
The will itself (Section 78 1965 Act):
- must be in writing;
- must be signed at the end by the testator or by someone in her presence and by her direction; and
- signature must be written or acknowledged in the presence of 2 witnesses, both must sign in the presence of the testator but not necessarily in each other’s presence.
Signatures: means initials or in the case of a disabled person, a mark i.e. cts have accepted ‘x’ as a signature, or ‘your loving mother’.
Further, a will is not invalidated simply because the signature does not immediately follow the last word of the witnesses’ signature, but any writing found after that of testator’s signature is normally excluded. Cts have ruled a will invalid where signature was at the top of the page.
B McLoughlan:
notary signed his name instead of testator, this was acceptable if it was done at his direction and there was no requirement to sign the name of testator; requires close scrutiny by the witnesses that the signature was under direction of testator. Initials and stamps are also valid.
Witnesses: they or their spouse cannot benefit under a will.
Re Bravada:
testator asked daughter to sign will in addition to witnesses. There was no detail to say they were signing in any other capacity other than witnesses and therefore their dispositions were voided by ct.
Interpretation of a will
• Why is this important: what is at stake
may be some confusion as to the intention of the testator and therefore cts will have to apply the principles of construction i.e. when wording of will is ambiguous or unclear: Heron v Ulster Bank, BOI v Gaynor.
Interpretation of a will
general rules:
(i) ct should read the relevant portion of the will and give it the natural meaning of the word;
(ii) look at other parts of the will to confirm the meaning, especially where ambiguity can be resolved;
(iii) if the ambiguity persists, have regard to the scheme of the will and consider what the t was trying to do;
(iv) then look to the rules of construction;
(v) look to judicial rules of interpretation;
(vi) draw assistance from opinion of other cts on similar words.
Armchair principle:
where there is latent ambiguity in the will, the cts will step outside the 4 corners of the will (4 corner principle) and put themselves in the testator’s shoes.
Thorn v Dickens: made reference to ‘mother’, but he was actually referring to his wife.
Extrinsic evidence:
cases
Healy: Re Plunkets Estate: Re Callaghan: Butler v Butler: Re Julian:
Healy:
2 nephews with same name and needed extrinsic evidence to clear up discrepancy.
Where there is an inaccuracy e.g. in a description, there may also need extrinsic evidence e.g. Re Plunkets Estate:
MF was supposed to be living in France but this was no true. However even though the evidence admitted was factually correct, ct held it to be inconclusive.
Re Callaghan:
ct will decide when the description is inaccurate what the t intended rather than what is factually accurate.
Butler v Butler:
intention of testator should be clear and seeking out the meaning of the words in a direct fashion. Cts have a reluctance to interfere with wills.
Re Julian:
this will referred to the ‘Seamen’s Institute, Sir John Rogerson’s Quay’, there was one protestant one there and one catholic one on Eden Quay. Even though there was obviously a mistake, ct refused to allow admittance as on the face of the will, there was no ambiguity and the bequest was made to the catholic institute.
