wills Flashcards
purpose of a will
governed by the wills act 1837
allows the testator to specify their wishes for the disposal of assets on death, specify funeral arrangements and guardianship of children
what is a will
-any document that deals with property on death and is revocable
banks v goodfellow 1870- doesnt have to say on it that is a will, aslong as it is clear that it is intended to be a will
-can be contained in a broader document
in the estate of cook 1960- mother wrote a letter to children that complied with formalities in 1837 act so was a valid will
-can be contained in more than one document
there are a number of requirements for making and revoking a will
1. capacity
section 7 WA 1837
-age requirement of 18 to create a will
-leading case for general capacity- Banks v Goodfellow (ought to be capable of making his will with an understanding of the nature of the business, a recollection of the property, know the beneficiaries, and the manner in which it is distributed)
-ewing v Bennet 2001 (variable capacity), dementia patient has capacity some days, will written on day with capacity so valid
-in the estate of park (contextual capacity), had capacity to marry but not capacity to write a will due to trauma
- must fulfill the formalities under section 9(1)
section 9(1) states 5 formalities:
will is in writing
signed by the testator
the signature intended to give effect to the will
the signature is made or acknowledged in the presences of 2 witnesses at the same time
the witnesses sign or acknowledge their signature in the presence of the testator
- will must be in writing
materials: can be written on anything
-hodson v barnes 1926, will on the side of an egg would have been valid
-Re slavinskeys estate 1989, painted will on wall in bad Eukranion, wall demolished but photo of wall was valid
language: must be an identifiable language
-whiting v turner 1903, french
-kell v charmer 1856, jewellers code valid as could be verified
- must be signed by the testator
2 approaches:
broad approach-
-in the goods of savory 1851, initials were substantial
-in the estate of finn 1935, thumbprint was substantial
-in the goods of chalcraft 1948, only part of signature aslong as thats all you intended
-in the estate of redding 1850, signing under an alias that you are known by
-in the estate of cooke 1960, signed your loving mother was substantial
stricter approach- (whether they have done everything they intended to do to complete their signature)
-Re colling 1972, intended to write full signature but died before completing, not valid partial signature
- signature intended to give effect to the will
usually proven by the will being signed
-wood v smith 1993, writes my will by name at top but not at bottom and after pointing out says its ok as signed at top, was enough to show intention to give effect to the will
- signature is witnessed by 2 people at the same time, and witnesses sign in presence of testator
2 requirements:
9(1)(c)- signing made or acknowlegde in the presences of 2 witnesses at the same time
(d)- witnesses must sign or acknowledge signature in the presence of the testator
exception for covid-
9(2)- wills made between 31 jan 2020 and 31 jan 2024 can have presence by means of videocall
witnessing a signature
must be physically and mentally present:
-hudson v parker 1844, being asleep, intoxicated or insensible is not being mentally present as a witness
-right v price 1779, if testator is in a state of insensibility the will is not valid
line of sight test: must be a clear line of sight between witness and testator (narrow):
-brown v skirrow 1902, shop keeper as witness, customer stands between the 2, not valid as no clear line of sight
-tribe v tribe 1849, testator watching signing from 4 poster bed with curtains across room, no clear line of sight
wider test, what the witness could have seen, not what they did see:
-smith v smith 1866, head pointing in the right direction so could have seen if looking so was valid
-casson v dade 1781, testator could have seen through windows of carriage and shop if she had looked so valid (clear line of sight)
- revocation
sc 18 and 20
according to the wills act 1837 there are 4 ways a will can be revoked
covered in section 18 and 20
sc18- when entering a marriage/ CP any existing wills are automatically revoked, partner is regarded as dying on that date and any gift to them fails on the certainty of object
(exception subsection 3, if will made in contemplation of above will not be revoked, provided the partner is specified and a clear intention that will is not revoked)
sc20- 3 other ways
-revocation (decide you dont want the will and follow same requirements under sc9)
-later will (either including a clause expressly revoking previous will, or if not expressly stated any inconsistent previous wills are revoked by implication of new will)
-thorn v dickens 1906, 2 wills dealing with the same property for his wife, latter will revoked previous will
-in the estate of wayland 1951, 2 wills 1 dealt with land in uk and other land in belgium, new will only mentions land in UK so only revoked will regarding uk land
-destruction
sc 20 destruction
destruction- will is revoked if it is destroyed with the intention of being destroyed
if accident then still valid (destroying one or more of sc9 formalities)
-hobbs v knight 1838, cuts signature off will so no longer valid (partial destruction)
-re adams 1990, scribbles over signatures so no longer valid
-cheese v lovejoy 1877, draws diagnol line through will and put with scrap paper, maid return will to drawer, damaged not destroyed so still valid
-in the estate of nunn 1936, testator cuts clauses out and sews back together, will still valid as all formalities still occurred
-perkes v perkes 1820, testator rips will into 4 but stopped and is glad hadnt ripped further, to destroy will testator must have done everything they intended to do (still valid as only 4 pieces)
-scott v scott 1859, will destroyed by mistake so still valid
-Re webb 1964, will destroyed in bombing but copy proved what was on will so still valid
- revival
sc 22
sc 22 states that you can revive a revoked will aslong as the sc 9 formalities are complied with (including re-witnessing)
-in the goods of davis 1952, will revoked when married so re-executes the will and terms come back into effect
-rogers v goodenough 1962, destroyed wills cannot be revived
-in the goods of hodgekinson 1893, must be a clear intention to revive will (revoking a later will will not revive an old will)
- construction and interpretation of wills
courts cant generally look beyond the document to interpret the will
need to look at the intention manefested in the will itself
do this by in 2 approaches:
1. using the literal rule
- doe d gwillin v gwillin 1863, courts said look at the ordinary literal meanings of the words even if the outcome is obsurd
2. modern approach- what does the words mean given the testators social and cultural context
-lowe v thomas 1854, cash and shares, testators intention of money must have included shares as nowhere else in the will dealt with shares and number of benefiaries was large so would need large quanitity of money however have to apply literal approach so money meant cash (literal causes problems)
-perrin v morgan 1943, need to look at testators context, other assets not dealt with in another area so must be considered money
-re rowland 1963, mirrored wills but differs where money goes if the spouse predeceases, husbands will said if wife dies before him or coincides his, both died in car crash but literal rule says coincides means exact same time so could not prove coinciding so died intestate
construction and interpretation of wills cont
-re lynch 1943, words in a will may not mean the same as in a dictionary (wife in will included cohabitee)
-jones v midland bank 1998, son would inherit if she predeceased him otherwise goes to nephews, son kills mother and under forfeiture act 1982 cannot inherit if you kill them, will didnt specify intnention if son cant inherit for another reason so nephews coudnt inherit, (courts will not rewrite wills)
-re cook 1948, courts will consider differently if you have legal knowledge (drawn up by amataur will be more lineant, if drawn up with legal advice expectation they know what their doing)
-mannai investment co v eagle star life assurance co 1997, if the words are unambigious give them their literal meaning according to the context of the testator
- the courts will also apply a range of presumptions
-you intended to die testate rather than intestate (so will try uphold the will)
Re Harrison 1885
-you intended a full testacy (if provisions made likely intended to cover everything)
Re stephens 1952
-will will not be void for perpatuaties (courts will presume valid trust if possible)
Martelli v Holloway 1872
-against caprisiousness (presume your not intending to do something foolish)
Horden v Horden 1909- interpretation of a will and codicil, presumed to intend to be reconcilable so should be interepreted so
seal v taylor 1894- presumption against caprisiousness couldnt be rebutted so left a room above property
-presumption in favour of closer relatives
milner v walbran 1906, will left estate to children of frances and james, trust in favour of james as he was a closer relative than his children
