Succession - Will construction

Question 1

What are the two aspects of essential requirements to create a valid will?

Answer 1

Capacity to make a will
Formal elements of that will

Question 2

How does one have capacity to make a will?

Answer 2

18 years of age and of sound disposing mind

Question 3

How is a disposing mind judged?

Answer 3

Disposing mind
- testator has intention to create a will
- presumption in favour of a valid will being created means burden of proof is on the party seeking to prove the will is invalid
- main form of attack is undue influence

Question 4

What is the original test for a sound disposing mind?

Answer 4

Banks v Goodfellow
- Testator was committed to care for a number of months and was convinced he was being haunted. However, he had always managed his own financial affairs and was generally lucid aside from these bouts.

• Four part test created
  1) Did the testator understand he was making a will and that a will would dispose of his property upon death?
  2) Did they know the assets they were disposing of?
  3) Did he understand and appreciate the claims to which he ought to give effect?
  4) Was he free of delusions which may have affected his formulation of his will?

Question 5

When did Irish courts adopt the four part Banks test?

Answer 5

O’Donnel v O’Donnel
- Schizophrenic was considered of sound mind as he was well maintained on drugs.
- Any reasonable testator would have made this will.
- First three questions aided the court in assessing the final element.

Question 6

When does a testator have to be of sound disposing mind? Give the English and the Irish cases.

Answer 6

Testator should be of sound disposing mind when executing the will.

Parker v Felgate
- If the testator was of sound disposing mind at the time of giving instructions but not at the time of execution the will will still be valid if
1) they were of sd mind when giving instructions
2) will was prepared in accordance with these instructions
3) at the time of signing he was aware he was signing a will for which he had given instructions

Re Glynn
- approved decision in Parker re periods of lucidity
- man suffering from a stroke was capable of nodding and signing a will he had previously given instruction for before his stroke
- only direct heavy medical evidence of incapacity will rebut the presumption of a sd mind

Question 7

What are the formal requirements for creation of a valid will?

Answer 7

s.78 Succession Act
- In writing, signed by the testator, attested by two witnesses
- Witnesses must see the testator sign at the same time but do not have to sign at the same time.
- Acknowledgement the signature was being made will satisfy requirement if not physically seen.

Question 8

What principles re witnesses arise from case law?

Answer 8

Shires v Galsock
- witnesses can be in adjacent rooms so long as they can still see the testator signing his will

Re Devlin
- Witnesses do not need to know the contents of a will or even that what they are witnessing is a will

Question 9

What are the common law rules re additions to the will

Answer 9

Re Myles Deceased
- Additions not witnessed and signed at the location of the amendment will be presumed made after execution and therefore not admitted to probate .

Bonis Adams
- If pencil is used in an ink document the pencil will be excluded from probate

Question 10

What are the general principles used in construction of the will (reading of)?

Answer 10

Butler v Butler
- the meaning of the words will be sought ought in a direct fashion giving their natural meanings primary importance

Heron v Ulster Bank Ltd
1) attempt to read the relevant portion in plain English and decide its meaning on this basis
2) read other material parts of the will to see if they confirm the plain meaning of the relevant portion or if modification is needed to make relevant sense of the whole or resolve ambiguity
3) consider the scheme of the will and what the testator was trying to achieve
4) resort to the rules of construction such as the presumption of early vesting and against intestacy in favour of equality
5) see if any rule of law prevents a particular interpretation
6) if studies have been exhausted you may resort to the opinions of other courts and judges on similar wording but remember ‘no will has a twin’ so not binding

Question 11

What other considerations are used if the general approach to construction is insufficient?

Answer 11

Re Hogg
- if technical words with a specific legal meaning of a technical kind are used then a presumption arises in the absence of contrary evidence that the testator meant the words to have this specialist meaning

s. 99 1965 Act
- favour testamenti
- if there is general uncertainty due to poor drafting the courts will give meaning to vague phrases which otherwise render the will void
- if there is a choice between two interpretations the court will choose the interpretation of words to render the will operative

Question 12

What is the courts general approach to extrinsic evidence?

Answer 12

Re Carlises
- extrinsic evidence is generally inadmissible for the interpretation to the will.

This is because while we may express many thoughts during life, in death only what is meant in the will is admitted to probate. Only the testator’s expressed wishes and directions should be followed, hence the lighter emphasis on the construction of technicality.

Question 12

What is the exceptions to the courts general approach to extrinsic evidence?

Answer 12

1) Arm chair principle
2) To explain an ambiguity on the face of the will

Question 13

What is the armchair principle?

Answer 13

Gregory v McCarthy
- where the general knowledge and circumstances of the testator would inform the meaning of specific terms, unusual phrases, or mistakes of language of the testator .
- such evidence may be admitted to allow the court to put itself in the position of the testator to interpret the words
- eg. i leave my property to the love of my life/ my darling

Question 14

What are the common law rules regarding extrinsic evidence to explain an ambiguity on the face of the will?

Answer 14

Explaining ambiguity on the face of the will

Re Jackson
- testator left property to ‘Arthur’
- it was unclear if this was her nephew who lived abroad and with whom she had no contact or the man she had lived with for many years
- evidence was admitted to show she meant the latter
- held extrinsic evidence could be admitted to cure a latent ambiguity

Re Julian
- Protestant lady testator meant to leave money to the Protestant Seamens Institute at Eden Quay, mistakenly stated the seamens institute at sir john rogersons quay which was catholic
- court would not accept extrinsic evidence as there was no ambiguity, just an error. they were aware this was likely against the testators wishes but did not want to open the floodgates for recognised exceptions.

Question 15

What are the exceptions to the revocation of a will?

Answer 15

• mutual wills of spouses (made with the expectation of the other making an identical will)
• estoppel (other party has moved to their own detriment)
• contractual obligations not to revoke the will

Question 16

What incidents which provoke the revocation of a will and are not subject to the three exceptions?

Answer 16

s 85 succession act
1) making a subsequent will
2) a marriage which takes place subsequent to the wills creation
3) an act of destruction under s85(2)

Question 17

When is a will considered to have been revoked through destruction?

Answer 17

There must be an intention to revoke the will in the act of destruction
Accidental destruction or an attempt to destroy will not affect revocation

Cheese v Lovejoy
- Testator wrote ‘revoked’ on the will and placed it in a pile of papers meant for destruction
- A maid removed the will from the pile and placed it in the kitchen drawer for safe keeping
- Court held that as the document had not been destroyed and the words not signed or attested to they did not function on the will was valid.

Re McDermott
- Rebutted the common law presumption that if the testator had possession of the will and it could not be found after his death then it was intended that the will be revoked. Now it is only considered as evidence to show a possibility of revocation

Brennan v O’Donnell
- copy of a missing will admitted to probate after evidence was presented showing an intention for the will to be effected.
- even when a will has been effectively revoked t can be restored by means of executing a codicil which demonstrates an intention to revive the revoked will

Question 18

what was the effect of s90 of the Succession Act on the admission of extrinsic evidence?

Answer 18

s.90 was meant to deal with the difficulty of the limited common law exceptions eg. in Re Julin.

While on the face of s. 90 it could be read as admitting evidence in all cases to assist in the construction of a will the supreme court clarified in

Rowe v Law
- Dual test
- if a will contains a clear provision extrinsic evidence will not be admitted to offer an alternative interpretation
- e.e. will only be allowed where necessary to explain the actual intentions of the deceased or to explain the construction or a contradiction in the wil

Re Collins
- approved dual test

Question 19

What is the doctrine of dependent relevant revocation?

Answer 19

Re Coughlan
- Coughlan created a second will in 2015 to increase beneficiaries from 4 to 5
- The 2015 will included a statement that he was revoking his previous 2012 will
-Attended a solicitor again to revoke the 2015 will and restore the 2012 will
- Solicitor advised revoking the second will by destruction would revive the first will
- The solicitor had overlooked s.85 Succession Act and the will should have been revived under s.87 Succession Act

Doctrine of dependent relevant revocation
- If the testators act may be interpreted as ‘whatever else I may do I intend to cancel this will’ then from that point forward the will is revoked.
- If the meaning is ‘I have made a fresh will, so my old will may now be destroyed’ then the old will has not been revoked if the new one be not in fact made

Judgement
- Courts job is not to give effect to the intentions of the deceased be they ascertainable, but to determine whether the steps made by the deceased comply with the succession act.
- Ultimately, the 2015 wills destruction was contingent on the revival of the 2012 will. As s.87 steps were not taken to revive this the 2015 will was not revoked.