Succession, Wills & Admin Flashcards

Question

What are the 4 types of property that passes outside of a will not affected by the intestacy rules?

Answer 1

i. Joint property ii. Nominated property iii. Insurance policies in trust iv. Pension benefits

Answer 2

- The deceased may have jointly owned real property (i.e. a house) or could have jointly owned other property such as a bank or building society account. 1. Deceased and Other/s as beneficial Tenants in Common. Each tenant in common owns a distinct 'share' of the property and this 'share' passes into the deceased's estate for both tax purposes and distribution purposes. 2. Deceased and others as joint tenants. When one joint tenant dies then, by virtue of ordinary trust rules, the jointly owned property will pass to the surviving joint tenants (the survivorship rule).

Answer 3

- Statutory nominations were designed as a ‘poor man’s will’. The aim was to allow poorer members of society to dispose of small amounts of money without the necessity of making a will or of their relatives obtaining a grant of representations. Where a person is entitles to certain types of investments s/he can nominate a third party to receive them after his/her death. - This would be effective as long as it is in writing and witnessed by one person. Nominations of this kind can only be made in respect of certain assets, namely deposits in certain Trustees savings banks, Friendly Societies and Industrial and Provident Societies and only up to a limit of £5,000. If an effective statutory nomination is made the property will pass directly to the nominee on death and will not form part of the deceased’s estate.

Answer 4

- If the deceased had a simple life insurance policy on his/her own life, then the proceeds of the policy would form part of the estate for distribution under the Intestacy Rules or the Will. - If the deceased however had an insurance policy on his/her own life and the benefit of the policy had been written in trust for another person, then the proceeds of the policy will not be included in the estate for either distribution under the Rules of Intestacy or the Will. This is because once the policy has been written in trust for the benefit of another, the insured had divested him/herself of any benefit under the policy. The benefit of the policy would therefore belong to the beneficiaries under the trust

Answer 5

- If the deceased was a member of an employer’s discretionary pension scheme payments made by the trustees will not be included in his estate for distribution. - These rules only apply to discretionary pension schemes. Many pension schemes allow contributors to nominate a third party to receive any benefits due after the contributor’s death. Such a nomination is not binding on the trustees as the nature of the pension scheme is that payment is always made at the discretion of the trustees

Answer 6

- Section 33 (1) AEA ’25: When a person dies intestate their estate is held by their Personal Representatives (PRs) on statutory trust - Section 33 (2) AEA ’25: PRs distribute according to the rules of intestacy from the net estate once all debts, funeral expenses, taxes etc have been paid - Section 46 AEA ’25: Defines who benefits under intestacy and in what order

Answer 7

- Section 33 (1) AEA ’25 – any undisposed of property by the will is held upon statutory trust by the PRs - Section 33 (2) AEA ’25 – PRs distribute after payment of debts, testamentary expenses etc - Section 49(1) AEA ’25 – the rules as for total intestacy should be applied ‘subject to the provisions of the will’ Case example: Re Thornber 1937

Answer 8

Sec 1 Law Reform (Succession) Act 1995: Spouses/civil partners must survive 28 days in order to be entitled to an interest in the intestate’s estate Sec 21 Family Law Act 1996: A surviving spouse/ civil partner does not include someone who is divorced or has a decree of judicial separation

Answer 9

Includes: Children (and en ventre sa mere – in the womb), grandchildren, remoter descendants, adopted children, legitimate and illegitimate children and children born by artificial insemination etc

Answer 10

The residue is held upon ‘statutory trusts’ for the issue living at the date of death (or en ventre sa mere)of the intestate and if more than one living, then in equal shares ‘per stirpes’ - This is the Latin for ‘by branch’ and refers to every person down a family tree beginning from another person. Under the intestacy rules the interest are contingent upon reaching 18 or 16 and above and married. Although the Intestacy rules are yet to be updated on this, The Marriage and Civil Partnership (Minimum age) Act 2022 which came into force on 27th February 2023 states that 16 and 17yr olds, are no longer allowed to marry or enter into a civil partnership even if they have parental consent. Need to be 18 or over now.

Answer 11

“Tangible moveable property other than such property which consists of money or securities for money, or property used by the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment.” – anything you own is a personal chattel ie car, clothes etc but it stops being a personal chattel if it is used for business purposes Case examples: Re Ogilby 1942 contrast with Re Hutchinson 1955

Answer 12

1. for unmarried fathers of deceased children. There was a rebuttable presumption, that when a child dies intestate with unmarried parents, the deceased’s father and father’s family did not survive the deceased. The ITPA 2014 changed that presumption in cases where a person is recorded on the child’s birth certificate as an Intestate’s father or as a parent other than the mother. This may therefore include unmarried fathers in the rules of intestacy and also may cover situations where there are same sex parents of a child who was born through fertility treatment on or after the 6th April 2009. 2. protect children, who suffer the death of a parent, from the risk of losing an inheritance from that parent in the event that they are adopted after birth. S4 allows a child to still take an inheritance that they are already entitled to despite being later adopted.

Answer 13

- If the matrimonial home forms part of the estate of the Intestate, the surviving spouse or civil partner can require the PRs to appropriate the Matrimonial home in full or partial satisfaction of their interest in the estate. - If the Property is worth more than their entitlement, then the spouse or civil partner can pay the difference to the estate.

Answer 14

you cannot inherit property from someone you have unlawfully killed - The court had to decide who was entitled to the intestate’s estate? o The killer’s children? o Other relatives? o The Crown? Case example - Re DWS (deceased) [2001] Ch 568 CA

Answer 15

If the son had died prior to both his parents, then the grandchildren would be entitled under the intestacy provisions. However, this only applies if the child of the intestate has predeceased which was not the situation here. CA: The grandchild was not entitled to the estate under this statute.

Answer 16

- It can punish innocent grandchildren. - The intestacy rules set down a specific order in which relatives are entitled to the intestate’s estate. Grandchildren come before brothers and sisters of the intestate, but if the CA application was followed, the brothers & sisters of the killer would benefit and the grandchildren would be excluded totally

Answer 17

- Judicial reform - Deemed predecease rule - Discretionary power to the courts - Statutory reform

Answer 18

- In August 2022, the Women and Equalities Committee published a report putting forward several recommendations for cohabitation laws including giving rights for cohabiting couples to inherit from their partner’s estate on death NB: UK Government rejected the findings of the Women and Equalities committee. The Cohabitation Rights Bill‘s progress has been delayed several times and there is still no firm date for when it may become law probably due to cost implications. The associated laws on marriage and Divorce laws need to be dealt with first although it was hoped that it would pass in the current parliamentary session which ended in 2024.

Answer 19

‘A Will is an instrument by which a person makes a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his lifetime’

Answer 20

1. The cautionary function – forgery/fraud more difficult 2. The protective function – remove undue influence 3. The evidentiary function – evidence of testamentary intentions 4. The channelling function – assets in estate goes to those you wish to benefit

Answer 21

“No will shall be valid unless - a. it is in writing, and signed by the testator, or by some other person in his presence and by his direction, and b. it appears that the testator intended by his signature to give effect to the will, and c. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and d. each witness either – - attests and signs the will, or - acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary”

Answer 22

While a will must be in writing, there are no restrictions on the materials on which, or by which, a will may be written, or as to the language used.

Answer 23

A will may be hand-written, typed, lithographed or otherwise. It can be printed and made in pencil, ink or a combination of the two. It may be photographed too. If in pencil only can be submitted to the Probate Registry. The Pencil Writing Presumption: Where a combination of both pen and pencil then the pencil writing is only intended to be deliberative (suggestion rather than binding – unless the witnesses can give evidence that you intended what was in pencil to come into effect)

Answer 24

i) can be a name or mark (‘Mark’ includes initials / stamp assumed name / thumbprint / part of name) ii) Guiding the Testator’s Hand – can be fine to guide the testators hand if they are ill, or too frail and old to hold the pen to write it by themselves – this does not include doing it for them if they are semi-conscious etc iii) Signature by Agent Need to change attestation clause to reflect an agent is signing on behalf of Testator

Answer 25

This acts as a way to testify that the will was signed by the testator and that he intended, by his signature, to give effect to the contents of the will. Administration of Justice Act 1982 – prior to this act you must have written your signature at the bottom however this no longer matters as long as the signature was intended

Answer 26

The signature of the testator must be either written or acknowledged by him in the actual visual presence of both witnesses together (and there must be at least two witnesses) before either of them attests and signs the will or acknowledges his signature on it.

Answer 27

i. The will must already have been made and signed before the acknowledgement, and ii. at the time of acknowledgement, the witnesses must see the signature or have the opportunity of seeing it, and iii. the testator must acknowledge his signature by his words or conduct

Answer 28

- attest and sign the will, or - acknowledge his signature in the presence of the testator, in either case after the testator has either signed or acknowledged his signature on the will.

Answer 29

 To show compliance with S9  If absent – affidavit evidence (written statement of evidence which is sworn before a person authorised to administer such as solicitors) needed before can bring will to court (Probate Registry)

Answer 30

- Blind person can’t be a witness: In the Estate of Gibson [1949] - Must be mentally capable and mentally present as well as physically present: Brown v Skirrow [1902] - Chana v Chana [2001] - Involved a drunk Testator but would extend to witness.

Answer 31

- If any person shall attest the execution of any will where they or their spouse is to receive any bequest under that will, the bequest will be null and void.

Answer 32

 A will is a document that takes effect on the death of the testator. (The person who has drawn up a will or had one drawn up.) - Appoints executors - Appoints trustees of will trusts - Appoints guardians of infant children - Disposes of assets - May direct disposal of body of deceased

Answer 33

- Minimum age = 18 - No maximum age

Answer 34

1. Testamentary Capacity 2. Intention / Knowledge and Approval 3. Formalities

Answer 35

1. Understand the effect of his wishes being carried out at his death; 2. Understand the extent of the property of which he is disposing i.e. need to be able to recall the nature and extent of the estate 3. Be capable of understanding the nature and extent of the claims on him (both those whom he is including in his will and those whom he is excluding) 4. Must not be subject to any disorder of the mind that would prevent him from making a will...and that no insane delusion shall influence his will and bring about a disposal which if the mind had been sound would not have been made

Answer 36

- Re Loxston /Abbot v Richardson 2006 EWCH 1291 - Sharp v Adam [2006] EWHC Civ 449 - Key v Key [2010] EWHC 408 Ch

Answer 37

o There is a presumption of capacity until someone challenges capacity. o Testamentary freedom is the foundation of succession law in England & Wales. o A finding of incapacity denies a person of their testamentary freedom. This has to be balanced with protecting vulnerable persons from abuse. o A person can be incapable of managing their property and affairs on a day to day basis but be capable of making a will

Answer 38

Hughes v Pritchard 2022 EWCA Civ 386

Answer 39

‘a delusion in the mind of the testator will deprive him of mental capacity if the delusion influences or is capable of influencing the provisions of his will’ ‘a testator suffers from a delusion if he holds a belief on any subject which no rational person could hold and which cannot be removed from his mind by reasoning with him’

Answer 40

- The Vegetarian Society v Scott [2013] EWHC 4097 Ch

Answer 41

Lloyd v Jones [2016] EWHC 1308 (Ch) Banks v Goodfellow (1870) LR 5 QB 549

Answer 42

Re Nightingale (1974) 119 SJ 189 Sharp v Adam [2006] WTLR 1059 Kostic v Chaplin [2007] EWHC 2298 Ritchie v Joslin [2009] EWHC 801 Boast v Ballardi 2022 EWHC 1533 ( Ch) 2006

Answer 43

When the will is made

Answer 44

- So, a will is admitted to probate without proving capacity unless it is challenged. - Objector can then raise doubt about capacity and if a real doubt is raised the burden shifts back to propounder (person proving the will) to establish capacity. - Burden of proof is on the propounder who must prove T had capacity at the relevant time ie when signed the will.

Answer 45

Testators under the influence of drink / drugs - Chana v Chana [2001] WTLR 205 When testamentary capacity in doubt medical evidence should be obtained.

Answer 46

where a solicitor is drawing up a will for an aged T or one who has been seriously ill, it should be witnessed and approved by a medical practitioner who has examined T and satisfied himself as to T’s capacity and he ought to record his findings - Kenward v Adams (1975)

Answer 47

Wharton v Bancroft and others [2012] EWHC 91 Ch – not easy to conjure up a Doctor Re estate of Eva Burns Burns and Gramauskas v Burns [2016] - Court of Appeal comment that the Golden Rule is guidance not a rule of law. Sharp v Adams – it is a rule of good practice, not law

Answer 48

 Section 1 - there is a presumption of capacity unless it is established that a person lacks capacity. - All practicable steps should be taken to help a person make a decision. - A person is not to be treated as unable to make a decision merely because he makes an unwise decision  Section 2 - A person lacks capacity if unable to make a decision because of an impairment of the mind or the brain

Answer 49

Capacity to make a will not dealt with under the Act. “The test for testamentary capacity was laid down in Banks v Goodfellow (1870) LR 5 QB 549 .... This common law test has been applied on countless occasions, and although it is now superseded by the Mental Capacity Act 2005 it applies in the present case, since the relevant events took place before that Act came into force.”

Answer 50

Code of practice to MCA- the Act does not replace common law tests Judges’ comments in favour of common law test: - E J Scamell SA Scamellv LJ Farmer 2008 WTLR 1261 - Counsel suggested MCA correct test- rejected by the judge - Key v Key [2010] EWHC 408 Ch - Banks v Goodfellow is the test - Simon v Byford 2014 EWCA Civ 280 - Elderly lady makes will at her 88th birthday party in front of family! Banks v Goodfellow was the correct test to use. A person can have capacity on one day and not on another. - However more recently – James v James and others [2018] All ER (D) 124 –Banks v Goodfellow approved! In favour of MCA applying: - Fischer v Diffley 2013 EWHC 4567 ( Ch) - Bray v Pearce 2014 WTLR 757-estate to the window cleaner! Nephew challenged successfully

Answer 51

CA case confirms Banks v Goodfellow is correct test. - First trial court held both wills to be invalid. John appealed to CA and one of his arguments was that B v G was not the correct test to apply. - CA confirmed B v G was the correct test to apply for testamentary capacity and that MCA dealt with circumstances where living persons make lifetime decisions

Answer 52

The judge said Banks v Goodfellow is good law but the Mental Capacity Act 2005 should be used as a cross check. Also said if MCA test gives a different result to Banks v Goodfellow test this should lead to further consideration of the testator’s capacity. It was said that the first 3 limbs of Banks v Goodfellow could be regarded as “relevant information” in s3 MCA test. S3 MCA provides a person is unable to make a decision if he is unable to understand information, retain information relevant to the decision or use that information as part of the process of making the decision or communicate that decision The fourth limb of Banks v Goodfellow is reflected in s.2 MCA where it refers to impairment or disturbance in the functioning of the mind or brain

Answer 53

This cases reinforces that Banks v Goodfellow test remains good law but noted the developments in modern medical understanding of capacity issues. The case is also very important in its commentary about draftsman’s evidence and expert evidence and The Golden Rule in cases challenging testamentary capacity and is a leading authority on capacity cases There were two wills made one in 2007 and one in 2015. The challenge was to the later will at which time the T had Alzheimer’s/dementia. The T had initially wanted a simple will but the end result was a complex will which he couldn’t understand and this affected his knowledge and approval of the contents of the will (look at lecture 4 for draftsmans and expert evidence comments)

Answer 54

* Rules on capacity should be reformed. * Language in common law test outdated. * Supports MCA as a reflection of the modern understanding of factors that influence mental capacity or * Supports a statutory footing for common law test with statutory presumption of capacity but for now Banks v Goodfellow is still the recognised test

Answer 55

the intention to make a will

Answer 56

to make the particular will that is being signed

Answer 57

1. Knowledge and Approval 2. Undue Influence

Answer 58

A testator must know and approve of the contents of his will. The will must be the result of the application of T’s own mind to the making of the will. This requirement protects testamentary freedom but also protects a vulnerable testator. - Not normally a problem if T of full mental capacity. - If mental faculties failing or needs some help in understanding the terms of the will it is more of an issue. - The more complex the will the more explanation may be needed to know and approve its contents. - Conversely if the will is simple the court need little persuasion that T knew and approved of its contents even if prepared by a beneficiary

Answer 59

Hart v Dabbs [2001] WTLR 527

Answer 60

Franks v Sinclair [2006] EWHC 3365 (Ch)

Answer 61

- Will read over to T or reads himself – presumption knew and approved contents - This is a presumption and may be rebutted by evidence to the contrary

Answer 62

a. Send client copy of will instructions from interview or b. Send draft of will with letter explaining its effects using understandable language and avoid technical terms and expressions

Answer 63

 Knowledge and approval must exist at the time of execution of the will The exception – the rule in Parker v Felgate (1883) 8 PD 171

Answer 64

- B o P is on the propounder of the will ( the person who submits it for probate.) - A rebuttable presumption arises from proof of testamentary capacity and execution of the will that T knew and approved of the contents of his will - Barry v Butlin (1838) 2 Moo PC 480 - Burden then passes to challenger of the will to establish that T did not know and approve of the contents

Answer 65

 No presumption of knowledge and approval - Just because a will is prepared by a beneficiary does not mean it cannot be admitted to probate but it does raise the suspicion that T did not know and approve of its contents. - It is difficult to upset the will on lack of knowledge and approval. Sherrington v Sherrington [2005] EWCA 326

Answer 66

1. Suspicious circumstances 2. Will signed by someone else on T’s behalf 3. T blind or illiterate 4. Need to specifically prove knowledge and approval 5. Show will read over to T at time of execution

Answer 67

Barry v Butlin (1838) 2 Moo PC 480

Answer 68

Wintle v Nye [1959] 1WLR 284 Cushway v Harris [2012] EWHC 2273 Fuller v Strum [2002] 1 WLR 1097 (look at lecture 5 for more)

Answer 69

 Wills prepared by solicitors containing gift to solicitor- need to show client had knowledge and approval if will challenged.

Answer 70

- If gift significant amount itself or in relation to size of estate - Solicitor should advise client to seek independent advice or refuse to act on the matter or refuse the gift. - Lack of knowledge and approval will invalidate the will.

Answer 71

When someone uses their power or position to manipulate another’s decisions for their own benefit

Answer 72

 Application of coercion to make a will in particular terms. Can be physical force or emotional pressure  ‘Coercion’ (not persuasion) – the use of force or threats to make someone do something they don’t want to do - “T may be led but not driven” Carapeto v Good and Others [2002] WTLR 801 - Mere ‘influence’ is not sufficient (look at other cases on lecture 5 notes)

Answer 73

Re Edwards [2007] All ER (D) 46 Schrader v Schrader [2013] EWHC (Ch) Schomberg v Taylor [2013] EWHC (Ch) Re Chin 2019 (look at lecture 5 slides for more cases)

Answer 74

 On the person who alleges it - Must be positive proof of coercion. Gill v RSPCA [2010] EWCA Civ 1430

Answer 75

o No ‘presumption of undue influence’ in wills unlike inter vivos gifts. Mere proof of a relationship eg solicitor and client ; doctor and patient; parent and child will not raise the presumption. o Adverse costs in probate cases where undue influence is not proved. o Law Commission proposed reform - suggestion of statutory form of undue influence.

Answer 76

Section 1 IHTA 1984: - IHT is charged on ‘the value transferred by a chargeable transfer’ Section 2: - A ‘chargeable transfer’ is defined as ‘any transfer of value made by an individual which is not exempt’ Section 3: i. A transfer of value – ‘which reduces the value of the transferor’s estate’ ii. Made by an individual iii. Which is not exempt

Answer 77

‘LIFETIME’ DEALINGS: i. A lifetime chargeable transfer - A transfer made to a Trust or Company - IHT payable at the time it is made at the appropriate rates ii. A PET (potentially exempt transfer): - A transfer made by an individual to another individual. - No tax payable when made. - Must wait and see if survives 7 years DEATH: - The deceased is taxed upon the value of the estate at the value immediately before death

Answer 78

LIFETIME RATES: i. Nil Rate Band (NRB): * The first £325,000 (excluding any exemptions and reliefs) is taxed at 0% ii. Amount over NRB: *The amount up to £325,000 is taxed at 0% and any amount over this is taxed at 20% DEATH RATES: i. Nil Rate Band (NRB): * The first £325,000 (excluding any exemptions and reliefs) is taxed at 0% ii. Amount over NRB: * The amount up to £325,000 is taxed at 0% and any amount over this is taxed at 40% iii. Residence Nil rate band: * If a property is left to a direct descendant i.e. Child or Grandchild then an additional Residence Nil rate band of up to £175,000 is taxed at 0%

Answer 79

* Aggregate of all the property in the deceased’s estate (to which s/he was beneficially entitled) * The IHT will be payable on the net estate after deduction of any liabilities * The value of the estate immediately before death is equivalent to the ‘market value’

Answer 80

You must look back 7 years to take into account any IHT paid upon LCTs or failed PETS and use this cumulative amount to add to the death estate value.

Answer 81

Liability: a. LCT - donee of the gift liable to IHT b. PETS – donee of the gift liable c. Death – PRs of the estate Gifts subject to a reservation: - This is when the donor gives away something during his lifetime but retains some benefit e.g elderly parents - The value of the asset at death will be included in the donor’s estate on death for IHT purposes Exemptions and Reliefs: NB: The nil rate band is not an exemption! - Transfers which fall within the nil rate band are taxed at 0% Special rules for married/civil partners: - Where the nil rate band of the first deceased partner is not all used – the proportion of the unused nil rate band will be available for the surviving partner in addition to their own nil rate band

Answer 82

1) Annual exemption: Gifts of up to £3,000 can be transferred in every tax year without being liable to IHT. If the £3,000 is not used in a particular tax year it can be carried forward a year giving a maximum of £6,000. 2) Small gifts exemption: Any number of gifts up to £250 can be made over the tax year as long as to different people 3) Gifts in consideration of marriage: Exempt provided within certain limits (according to relationship of parties) 4) Normal expenditure out of income: As long as out of income and allows transferor to maintain own standard of living 5) Family maintenance: List of people given - include former spouses and children

Answer 83

1) Spouse exemption: Transfers between spouses are exempt from IHT. The amount is unlimited. 2) BPR (Business Property Reflief): o BPR operates as a percentage reduction in the value of relevant business property. To qualify for the relief all of the conditions must be satisfied. o The transferor must have owned the relevant business property for two years prior to the transfer and the transferee must still own the business at the date of the Transferor’s death o The property transferred must fall within the definition of relevant business property This is defined as: a. a business or interest in a business b. shares in an unquoted company c. shares in a quoted company which give the transferor control of the company d. land or buildings, plant or machinery which immediately before the transfer was used by a partnership in which the transferor was a partner or by a company of which he had control Relief is given by percentage reduction in the value of the business property transferred. The appropriate percentage reduction depends on the business property involved. - 100% relief is available for business property within categories a and b above. - 50% relief is available for business property within categories c and d above. 3) APR: Similar to BPR - applies only to agricultural land. Development potential increasing the value is not within the relief. BPR may be used in conjunction with APR 4) Charity exemption: Exempt without limit 5) Heritage property: Certain outstanding and significant cultural land. It is a postponement of the charge 6) Gifts to political parties: Exempt without limit if qualify

Answer 84

1) Woodlands: Defers payment of IHT – limited use 2) Quick succession relief: When there are 2 charges to IHT within 5 years of each other 3) Death on active service 4) 10% to Charity: If at least 10% of the deceased’s estate is left to charity then any tax payable above the nil rate band will be at 36%

Answer 85

- When transferor dies within 7 years of making a gift and gift made more than 3 years before death then the tax payable is reduced on a percentage basis - If the death occurs more than three years after the LCT or PET was made taper relief is applicable to reduce the amount of tax actually payable. If still within the NRB then don’t apply Taper relief.

Answer 86

- Where the transfer is made more than 3 but not more than 4 years before the death 80% of the full tax rate is paid - Where the transfer is made more than 4 but not more than 5 years before the death 60% of the full tax rate is paid - Where the transfer is made more than 5 but not more than 6 years before the death 40% of the full tax rate is paid - Where the transfer is made more than 6 but not more than 7 years before the death 20% of the full tax rate is paid

Answer 87

General rule: - All the property that the deceased was beneficially entitled to at death whether in the UK or abroad

Answer 88

Property not included: 1. Excluded property - e.g. property outside the UK and owned by a non-UK domicile, overseas pensions, reversionary interest in trusts 2. Insurance policies written into trust for another person 3. Discretionary pension schemes Property included: 1. Gift subject to reservation of benefit 2. Jointly owned property - pays IHT on their ‘share’ 3. DMC

Answer 89

Revocation refers to the 'calling back' of a will, meaning that a will can be rescinded or annulled at any time before the testator's death.

Answer 90

A will can be revoked in one of four ways: by the marriage of the testator after its execution, by another later will or codicil, by a duly executed writing declaring an intention to revoke, or by its destruction.

Answer 91

Section 18 states that a testator's marriage automatically revokes any will made prior to that marriage, regardless of whether the testator is aware of this rule or intends for it to happen.

Answer 92

A voidable marriage is considered valid until annulled by the party entitled to do so. Such a marriage will revoke any will made by either party.

Answer 93

The report justified the automatic revocation of wills by marriage on the grounds that marriage signifies a fundamental life change, creates new obligations, and ensures that children from the marriage are provided for under intestacy rules.

Answer 94

Revocation by marriage can disadvantage children from an earlier marriage, as they may not be provided for under the new circumstances unless a new will is made.

Answer 95

The law states that only marriage revokes prior wills, not cohabitation, which does not carry the same legal implications for obligations and responsibilities.

Answer 96

The court cannot revoke a will itself; it can only revoke a Grant of Probate that acknowledges the validity of a will.

Answer 97

A void marriage is treated as having never taken place and does not revoke a will.

Answer 98

If the party who gives no proper consent to the marriage dies before annulling it, the marriage is regarded as valid for the purpose of revoking earlier wills.

Answer 99

Wills made in contemplation of marriage and wills clearly intended to stand and not be revoked after the intended marriage takes place are exceptions.

Answer 100

Slightly different rules apply; wills made after 1982 have specific provisions under Section 18 that can prevent revocation by marriage.

Answer 101

It must appear that at the time the will was made, the testator was expecting to be married to a particular person and intended the will not to be revoked by that marriage.

Answer 102

Extrinsic evidence is admissible only to clarify ambiguous language or meaning in the will, but not to supply an intention that does not appear in the will.

Answer 103

The elements include: the will must show the testator's expectation of marriage, the intention to not revoke the will by marriage, and this must be evident at the time the will was made.

Answer 104

A testator can indicate their expectation of marriage by making a clear statement or using phrases like 'my fiancée' or 'my future wife'.

Answer 105

The statutory exception applies to both male and female spouses for all wills made after 1982.

Answer 106

In a case of bigamy, such as Warter v Warter, the second marriage is void, meaning it does not affect the validity of existing wills.

Answer 107

It indicates that the testator had a specific person in mind whom they intended to marry, which is crucial for the will's validity.

Answer 108

It is not necessary to name a particular person if it is sufficiently clear that the testator is referring to someone specific.

Answer 109

The case shows that a will must disclose the identity of the intended civil partner for it to survive a subsequent registered civil partnership.

Answer 110

The will must clearly indicate that the testator intended for it to remain valid despite their marriage to a specific person.

Answer 111

The exception that allows the will to remain valid does not apply if the testator marries a different person.

Answer 112

It allows an individual disposition to take effect despite the testator's subsequent marriage if the will shows the testator expected to marry a specific person and intended for the disposition to remain valid.

Answer 113

It updated the Wills Act by substituting references to the post-1925 intestacy rules, ensuring the law reflects current practices.

Answer 114

It allows marriages between same-sex couples and provides that converting a civil partnership to a marriage does not revoke existing wills or affect their dispositions.

Answer 115

The gift lapses upon the dissolution or annulment of the marriage between the testator and that spouse.

Answer 116

If a will states that an individual disposition should continue beyond the testator's marriage, there is a presumption that the entire will survives the marriage unless stated otherwise.

Answer 117

The Act provides that if a testator's marriage is dissolved or annulled, any provision in the will appointing the former spouse as executor or granting them a power of appointment will be treated as if the former spouse had died on the date of dissolution or annulment.

Answer 118

A will or codicil can only be revoked by another will or codicil executed properly, by a writing declaring an intention to revoke, or by destruction of the will by the testator or someone in their presence and by their direction.

Answer 119

A revocation clause is intended to revoke all prior wills in their entirety, but the mere description of a will as the testator's 'last' will does not automatically revoke former wills.

Answer 120

An unambiguous general revocation clause typically revokes all prior testamentary dispositions.

Answer 121

If a revocation clause is included by mistake and the testator did not know or approve of it, the clause will be considered inoperative.

Answer 122

A later will may imply the revocation of an earlier will only to the extent that the provisions are inconsistent. If both wills are consistent, they may both be admitted to Probate.

Answer 123

A will may be impliedly revoked by a later will only if the provisions of the later will are inconsistent with the former will; otherwise, both may be admitted to Probate.

Answer 124

In Perdoni v Curati, an Italian national made two wills: one in England leaving everything to his wife and another in Italy naming her as his only heir. This case highlights issues of jurisdiction and the validity of holograph wills.

Answer 125

A properly constructed revocation clause will revoke prior wills, but if it is ambiguous or included by mistake, it may not have the intended effect.

Answer 126

The date of dissolution or annulment is significant because it determines that any property that would have passed to the former spouse under the will is treated as if the former spouse had died on that date.

Answer 127

The Italian will does not revoke the English will if the testator was domiciled in England at the time of death, as default provisions in English law take effect.

Answer 128

A later will revokes an earlier will to the extent that it is inconsistent with it.

Answer 129

The two elements are an act of destruction and an intention to revoke.

Answer 130

The act of destruction must be actual destruction of the will, not merely symbolic, and must involve substantial destruction of an essential part of the will.

Answer 131

If the whole of the testator’s signature is burnt, torn off, cut out, or erased so that it cannot be identified, it is sufficient for revocation.

Answer 132

The will was held to be valid despite being torn up by the testator's wife in a moment of anger.

Answer 133

The will was held to be valid even after the testator wrote revocations across it and kicked it into a corner.

Answer 134

The court held that the heavily scored out signatures amounted to total revocation of the will.

Answer 135

'Animus revocandi' refers to the testator's intention to revoke the will when committing the act of destruction.

Answer 136

It is presumed to have been destroyed with the intention of revoking it.

Answer 137

Alterations made before execution take effect as altered, while those made after execution require proper execution to be admitted to Probate.

Answer 138

It states that no alteration made after execution shall be valid unless it complies with the execution requirements of the will.

Answer 139

Alterations made before the execution of a will can affect its validity and the probate process, as they may need to be duly executed to be considered valid.

Answer 140

Conditional dependent revocation occurs when a testator revokes a will based on the condition that another will is valid; if the other will is invalid, the revocation is ineffective.

Answer 141

If the original wording is apparent, the will with the original wording is admitted to probate, and the attempted alteration is ignored.

Answer 142

Ademption occurs when a specific legacy in a will fails because the item specified is not part of the testator's estate at the time of death, resulting in the beneficiary receiving nothing unless the will states otherwise.

Answer 143

A legacy may fail if the subject matter or objects are uncertain, such as a vague description like 'my favourite painting,' which may not clearly identify the intended item.

Answer 144

If a specific, general, or demonstrative legacy fails, the property typically falls into the residue; if a gift of the residue fails, it can lead to partial intestacy.

Answer 145

A testator's intention to revoke a will can be conditional if it relies on the creation of a new will; if the new will is not made, the old will may still be valid.

Answer 146

In practice, it is often easier to redraft a will to incorporate any alterations and have the new will executed, rather than attempting to validate the original with alterations.

Answer 147

Ademption occurs when a gift in a will fails because the specific property has been sold or disposed of by the Testator during their lifetime.

Answer 148

Ademption does not apply if there has been merely a change of form but not substance, such as when shares are converted from 500 £1 shares to 1000 50p shares.

Answer 149

Lapse refers to the failure of a gift in a will when the beneficiary does not survive the Testator.

Answer 150

A Testator can avoid the doctrine of lapse by including provisions such as substitutional gifts, drafting as a class gift, or applying cy pres for charitable beneficiaries.

Answer 151

Section 33 saves a gift to a child or issue of the Testator if the intended beneficiary predeceases the Testator, allowing their surviving issue to inherit.

Answer 152

If T leaves £10,000 to his son John, who dies before T but has a living daughter, Jane, section 33 allows Jane to receive the £10,000 instead of the gift lapsing.

Answer 153

A codicil is a supplemental document to a will that adds, varies, or revokes some provisions of the original will, and must comply with the formalities of section 9 Wills Act 1837.

Answer 154

Executing a codicil republishes the will, indicating an intention to republish it, and includes all changes made by the codicil as if the will was executed on the date of the codicil.

Answer 155

A will generally 'speaks from death' when identifying property, meaning it is interpreted based on the circumstances at the Testator's death.

Answer 156

The court refused to conclude that T was referring to someone who was already dead and did not admit that the gift had lapsed, holding the gift in trust until someone appeared who satisfied the description of the words used.

Answer 157

If a will is altered before its republication by a codicil and the alterations are not executed in accordance with the Wills Act 1837, the republication by the codicil validates the alteration.

Answer 158

The republication of a will by a codicil executed by independent witnesses saves a gift to a witness of the original will who would otherwise lose out under section 15 of the Wills Act 1837.

Answer 159

A revoked will can be revived by re-execution of the will or by execution of a codicil showing an intention to revive the will.

Answer 160

The three essential elements are: an intention to revive the original will, the existence of the document being revived, and a formal act such as re-execution of the will or execution of a codicil showing the intention to revive.

Answer 161

Simply attaching a codicil to a revoked will is not enough; there must be clear words showing the intention to revive the original will.

Answer 162

The intention to revive must appear on the face of the will.

Answer 163

A re-execution of the revived will complying with section 9, or a valid codicil executed in accordance with section 9.

Answer 164

The effect of revival resurrects the revoked will, which is deemed to have been made at the time it was revived.

Answer 165

If Will 1 is dated 1980 and Will 2 is dated 2000 with a revocation clause, Will 1 is revoked. If a codicil dated 2003 states an intention to revive Will 1, it will be treated as if Will 1 is now dated 2003.

Answer 166

1. Claim within prescribed time limit 2. Deceased domiciled in England & Wales 3. Applicant within one of the categories of people able to apply under s1(1) of the Act 4. Applicant can prove deceased’s will or the law relating to intestacy or combination of both fails to make reasonable financial provision

Answer 167

S4 of the Act - application cannot be made after the end of the period of 6 months from the date on which a grant of representation to the deceased’s estate is first taken out, save with permission of the court. Late claims – requires an application for leave to extend time to make the application; decided by case law leading case = Re Salmon [1981] Ch 167 - Court takes into account all factors such as reasons for delay; negotiations; if estate distributed; cause hardship; merits. The merits – see Re Dennis [1981] 2 All. E. R. 140 - a court will not grant permission to apply out of time where an application has no or little hope of success. Bergen v Bergen 2013 where the Court of Appeal refused to allow the widow to apply out of time due to a six and a half year delay. See Cowan v Forman[2019] extension not allowed on merits of case and Bhusate v Patel [2019] where 25 year out of time extension was allowed on merits of the case.

Answer 168

o Spouse or civil partner s1(1)(a) o Former spouse not remarried or former civil partner not formed subsequent civil partnership s1(1)(b) o Person who for 2 years immediately preceding the deceased’s death lived in same household as the deceased as if that person and the deceased were a married couple or civil partners s1(1)(ba) o Child of the deceased s1(1)(c) o Child, not being child of the deceased in relation to a marriage or civil partnership to which the deceased was a party or treated by deceased as a child of the family in relation to any family in which the deceased had a parental role s1(1)(d) o Any other person who immediately before the death of the deceased was being maintained by the deceased s1(1)(e)

Answer 169

This includes: - Judicially separated spouse - Divorcing spouse where divorce not finalised - Someone who entered a void marriage - Party to a polygamous marriage

Answer 170

If former spouse or civil partner awarded financial provision from deceased on an application for ancillary relief then the court would not usually make further award on deceased’s death.

Answer 171

Person who for 2 years immediately preceding the deceased’s death was living in the same household as the deceased as if that person and the deceased were a married couple or civil partners. Living in the same household as married couple or civil partners (former wording as husband and wife) Re Watson [1999] 1FLR 878 - Husband and wife to be judged on the basis of “ the opinion of a reasonable person with normal perceptions, it could be said that two people were living together as husband and wife. One should not ignore the multifarious nature of marital relationships”. Living together in same household… Churchill v Roach [2003] WTLR 779 - The judge said living together as husband and wife “ seems to have some elements of permanence, to involve a consideration of frequency and intimacy of contact , an element of mutual support, some degree of restraint upon personal freedom which each party undertakes and to involve an element of community of resources” Swetenham v Walkley [2014] WTLR 845 - The way they acted towards each other and public face indicated a joint household. Fact deceased had other properties did not prevent a finding he had been living a life with the claimant. Evidence pointed to them as having lived as man and wife/ married couple.

Answer 172

Gully v Dix [2004] EWCA Civ 139 - Three months absence due to deceased’s drinking and violence did not affect the 2 year requirement. The word household indicates people held together by the tie of their relationship even if temporarily separated. This was applied in Kaur v Singh Dhaliwal [2014] EWCH 1991 Ch - The couple were not together the entire 2 years due to problems with accommodation and the needs of the deceased’s family but applying Gully v Dix, the separation although lengthy was not relevant as their relationship had subsisted throughout. So parties do not need to live under same roof for whole period to enable the household to continue through the requisite period.

Answer 173

Includes: - legitimate , - illegitimate, - adopted, - child en ventre sa mere and - adult children Child of the family Following Inheritance & Trustees Powers Act 2014 the category now includes any person who not being a child of the deceased, was treated by the deceased as a child of the family in relation to “any family in which the deceased had a parental role”. This now includes: - cohabitees, - Where deceased was applicant’s step parent, - a family of which the deceased was the only member eg a single parent family and - where a child is raised by someone other than its parents eg a child raised by a sole grandparent. The new provision recognises family units exist outside the traditional family roles.

Answer 174

An applicant who was being maintained by the deceased immediately before the deceased’s death. This category helpful if an applicant is unable to meet the 2 years living in the same household as husband and wife. See cases on cohabitants for meaning of “immediately before the deceased’s death” Amendments made by ITPA 2014 Para 1 Schedule 2 Since October 2014: - A person is to be treated as being maintained by the deceased only if the deceased was making a substantial contribution in money or moneys worth towards the reasonable needs of that person other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature. - The test revolves around whether deceased made a substantial contribution to the needs of the individual making the claim. This doesn’t extend to commercial situations where the deceased’s contributions were for valuable consideration eg claimant was paying lodger or housekeeper of deceased. McIntosh v McIntosh [2013] WTLR 1565 Wright –Gordon v Legister [2014] EWHC 2041 (Ch)

Answer 175

 After 6 month time limit has expired if no application made under IPFDA and no intimation of a claim has been given, the personal representatives can distribute the estate, notwithstanding that the court may subsequently extend the time

Answer 176

 That the disposition of the deceased’s estate effected by his will or the law relating to intestacy or a combination of both is not such as to make reasonable financial provision for the applicant.  REASONABLE FINANCIAL PROVISON  For surviving spouse or civil partner = such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive whether or not such provision is required for his/her maintenance - s1(2)(a) and s1(2)(aa)  For all other applicants = such financial provision as it would be reasonable in all the circumstances for the applicant to receive for his/her maintenance - S1(2)(b)

Answer 177

Maintenance does not mean subsistence or provision merely for bare necessities of life Bahouse v Nagus [2008] 1FLR 381

Answer 178

In determining whether reasonable financial provision has been made for the applicant, the court is to have regard to the matters set out in section 3(1) of the Act. These comprise of: i. the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; ii. the financial resources and financial needs which any other applicant for an order under section 2 has or is likely to have in the foreseeable future; iii. the financial resources and financial needs which any beneficiary of the deceased's estate has or is likely to have in the foreseeable future; iv. any obligation and responsibilities which the deceased has towards any applicant for an order under section 2 or towards any beneficiary of the deceased's estate; v. the size and nature of the deceased's net estate; vi. any physical or mental disability of any applicant for an order under section 2 or any beneficiary of the deceased; and vii. any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant. S3(5) - The court takes into account factors as known to the court at the date of the application Spouse or former spouse, civil partner or former civil partner additional factors - s3(2) - Age of applicant - Duration of marriage/ civil partnership - Re Waite - deceased, Barron and Woodhead 2008 - Short turbulent marriage

Answer 179

Kaur v Singh & Others [2023] EWHC 304 (Fam) - Husband died and tried to disinherit his spouse who he had been married to for 66 years. He left his estate to his 2 sons. Nothing left to his daughters. The wife was successful and received 50% of the estate. Their marriage had been a long marriage; she owned few assets in her name; she was 83 and suffering from medical conditions; she had been dependant on him. Paul v Paul & Ors [2022] EWHC 1638 (Fam) - In this case the husband only gave the contents of the family home to his spouse and the rest of his estate to their children and his children from a previous relationship. It is thought that he may have assumed she had a half share of the family home, which she did not. The spouse was successful in her claim, but because she had recently received 250k inheritance (from another source) and this reduced her claim. She was awarded 50 % of the estate.

Answer 180

- Courts directed to have regard to the notional financial provision which would have been awarded had the marriage been terminated by divorce or dissolution of the marriage at the date of death - Different situation to divorce as death may release money that not available on divorce or may mean loss of one source of income - Re Besterman [1984] Ch 458 - provision on divorce only one factor- overriding factor is reasonableness - The provision on divorce factor is a starting point. May well be increased as on applications under the Act, unlike divorce, the deceased’s estate is free of any need to support the deceased. - On the other hand the court may award less where there are other competing applicants or beneficiaries and the estate is limited in value. - This may well happen where this is a second marriage of short duration and there are children of the first marriage who had been led to expect provision from the deceased parent’s estate.

Answer 181

Fielden v Cunliffe [2006] 2All ER 115 - Former housekeeper of 6 months marries deceased who died about 12 months later. Reference made to the yardstick of equality (White v White) and it being a good way to cross check an award. “There were good reasons in this case why trial judge should have departed from that principle and they had not been given adequate weight –short marriage, claimant made little contribution to deceased’s wealth Singer v Isaac [2001] WTLR - Marriage of 11 years. Surviving spouse ( wife) applies. Husband had commenced divorce proceedings prior to his death. She was awarded large lump sum which took into account her age , length of marriage and amount she would have got had marriage ended in divorce. Lilleyman v Lilleyman 2012 - Big money short marriage case. Judge said divorce approach to these type of cases was just one of the factors for the court to take into account. In these cases equality was likely to be departed from.

Answer 182

- Age of the applicant - Length of period during which applicant and deceased lived as if they were a married couple or civil partners in the same household - Contribution made by the applicant to the welfare of the family of the deceased including any contribution made by looking after the home or caring for the family

Answer 183

- the manner in which the applicant was being or in which he might be expected to be educated or trained - whether the deceased maintained the applicant and if so the length of time for which and the basis on which the deceased did so and to the extent of the contribution made by way of maintenance - whether and if so to what extent the deceased assumed responsibility for the maintenance of the applicant - whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not his own child - the liability of any other person to maintain the applicant

Answer 184

Re Coventry [1979] 2All ER 408 Re Dennis [1981] 2All ER 140 Re Jennings [1994] Ch 286 Re Hancock deceased [1998] Fam Law 520 Espinosa v Bourke and others [1999] 2FLR 747 Gold v Curtis [2005] WTLR 673

Answer 185

Re Myers [2005] WTLR 851 Ilott v Mitson [2011] EWCA Civ 346 & [2015] EWCA Civ 797 Wright v Waters [2014] EWHC 3614 (Ch)

Answer 186

Wellesley v Wellesley & Ors 2019 EWHC 11 (Ch)

Answer 187

Re H ( deceased) 2020 EWHC 1134 ( fam)

Answer 188

Dignam –Thomas and Another v McCourt [2023] EWHC 546 (Fam) Higgins v Morgan [2021] EWHC 2846 (Ch) Hirachand v Hirachand Howe v Howe - January 2025.

Answer 189

1. Was the disposition of the deceased’s estate effected by his will or the law relating to intestacy or combination of both not such as to make reasonable financial provision for the applicant measured by either the surviving spouse standard or the maintenance standard as the case may be. See Barrass v Harding [2001] 1FLR 138 2. The court considers in the exercise of its discretion whether and in what manner it shall order provision to be made for the applicant. Here the court quantifies the provision to be ordered by reference to the test of reasonable financial provision measured on the appropriate standard. Once again the CA is loath to interfere with the exercise of such discretion on appeal. At each stage the court takes into account the S3 factors

Answer 190

- an order for such periodical payments out of the net estate of the deceased for such term as may be specified; - a lump sum order out of the net estate; - a transfer of specified property comprised in that estate; - an order settling specific property comprised in that estate for the benefit of the applicant; - an order for the acquisition out of the property comprised in the estate - an order varying any ante-nuptial settlement Orders made out of “Net estate”  "Net estate" is defined in section 25 of the Act and includes all property of which the deceased had power to dispose by his will less his funeral, testamentary and administration expenses, debts and other liabilities

Answer 191

- Interim orders s5 if applicant in need of immediate financial assistance - Solicitors’ role - Statement of reasons - Small legacy to try and prevent a claim - Compromise - Role of PRs- neutral position

Answer 192

- Recent cases have shown a rise in claims made for Proprietary Estoppel particularly were a claimant has been left out of a will when they expected to inherit. What is it? Where a party claims a right to land where claimant has been led to believe, by an assurance or promise (by words or conduct) by the other party that they can expect to be given an interest in the land. Person relies on that assurance and acts to their detriment on the basis of the assurance. Thorner v Curtis [2009] Ch D 26 Oct 2007 Bradbury v Taylor [2012] EWCA Civ 1208 Lothian v Dixon and Webb [2014] Ch D 28 Nov James v James and Others [2018] EWHC 43Ch